I 

108TH CONGRESS 

2D SESSION H. R. 4228

To provide for an improved acquisition system. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 28, 2004

Mr. TOM DAVIS of Virginia (for himself and Mr. HUNTER) introduced the following bill; which was referred to the Committee on Government Reform, 

and in addition to the Committee on Armed Services, 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 provide for an improved acquisition system.

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Acquisition System Improvement Act’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows:

Sec. 1. Short title; table of contents. 

TITLE I—ACQUISITION IMPROVEMENTS 

Sec. 101. Government-industry exchange program. 

Sec. 102. Share-in-savings initiatives. 
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Sec. 103. Inflation adjustment for acquisition-related dollar thresholds. 

Sec. 104. Agency acquisition protests. 

Sec. 105. Extension of authority for use of simplified acquisition procedures. 

Sec. 106. Redundancy in procurement of telecommunications services. 

TITLE II—CONTRACT DISPUTE ENHANCEMENT 

Subtitle A—General Provisions 

Sec. 211. Definitions. 

Subtitle B—Establishment of Civilian and Defense Boards of Contract 

Appeals 

Sec. 221. Establishment. 

Sec. 222. Membership. 

Sec. 223. Chairmen. 

Sec. 224. Rulemaking authority. 

Sec. 225. Authorization of appropriations. 

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

Sec. 231. Contract disputes. 

Sec. 232. Enhanced access for small business. 

Sec. 233. Applicability to certain contracts. 

Subtitle D—Transfers and Transition, Savings, and Conforming Provisions 

Sec. 241. Transfer and allocation of appropriations and personnel. 

Sec. 242. Terminations and savings provisions. 

Sec. 243. Contract disputes authority of Boards. 

Sec. 244. References to agency Boards of contract appeals. 

Sec. 245. Conforming amendments. 

Subtitle E—Effective Date; Regulations and Appointment of Chairmen 

Sec. 251. Effective date. 

Sec. 252. Regulations. 

Sec. 253. Appointment of Chairmen of Defense Board and Civilian Board.

1 TITLE I—ACQUISITION 

2 IMPROVEMENTS 

3 SEC. 101. GOVERNMENT-INDUSTRY EXCHANGE PROGRAM. 

4 (a) IN GENERAL.—Subpart B of part III of title 5, 

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

6 following: 
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1 ‘‘CHAPTER 38—ACQUISITION 

2 PROFESSIONAL EXCHANGE PROGRAM

‘‘Sec. 

‘‘3801. Definitions. 

‘‘3802. General provisions. 

‘‘3803. Assignment of employees to private sector organizations. 

‘‘3804. Assignment of employees from private sector organizations. 

‘‘3805. Reporting requirement. 

‘‘3806. Regulations.

3 ‘‘§ 3801. Definitions 

4 ‘‘For purposes of this chapter—

5 ‘‘(1) the term ‘agency’—

6 ‘‘(A) subject to subparagraph (B), means 

7 an executive agency; and 

8 ‘‘(B) does not include—

9 ‘‘(i) the General Accounting Office; 

10 ‘‘(ii) an Office of Inspector General of 

11 an establishment or a designated Federal 

12 entity established under the Inspector Gen13 eral Act of 1978; and 

14 ‘‘(iii) the Defense Contract Audit 

15 Agency referred to in section 2313(b) of 

16 title 10; and 

17 ‘‘(2) the term ‘detail’ means—

18 ‘‘(A) the assignment or loan of an em19 ployee of an agency to a private sector organi20 zation without a change of position from the 

21 agency that employs the individual, or 
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1 ‘‘(B) the assignment or loan of an em2 ployee of a private sector organization to an 

3 agency without a change of position from the 

4 private sector organization that employs the in5 dividual, 

6 whichever is appropriate in the context in which 

7 such term is used. 

8 ‘‘§ 3802. General provisions 

9 ‘‘(a) ASSIGNMENT AUTHORITY.—On request from or 

10 with the agreement of a private sector organization, and 

11 with the consent of the employee concerned, the head of 

12 an agency may arrange for the assignment of an employee 

13 of the agency to a private sector organization or an em14 ployee of a private sector organization to the agency. An 

15 eligible employee is an individual who—

16 ‘‘(1) works in the field of Federal acquisition or 

17 acquisition management; 

18 ‘‘(2) is considered an exceptional performer by 

19 the individual’s current employer; and 

20 ‘‘(3) is expected to assume increased acquisition 

21 management responsibilities in the future. 

22 An employee of an agency shall be eligible to participate 

23 in this program only if the employee is employed at the 

24 GS–11 level or above (or equivalent) and is serving under 
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1 a career or career-conditional appointment or an appoint2 ment of equivalent tenure in the excepted service. 

3 ‘‘(b) AGREEMENTS.—Each agency that exercises its 

4 authority under this chapter shall provide for a written 

5 agreement between the agency and the employee con6 cerned regarding the terms and conditions of the employ7 ee’s assignment. In the case of an employee of the agency, 

8 the agreement shall—

9 ‘‘(1) require the employee to serve in the civil 

10 service, upon completion of the assignment, for a pe11 riod equal to the length of the assignment; and 

12 ‘‘(2) provide that, in the event the employee 

13 fails to carry out the agreement (except for good and 

14 sufficient reason, as determined by the head of the 

15 agency from which assigned) the employee shall be 

16 liable to the United States for payment of all ex17 penses of the assignment. 

18 An amount under paragraph (2) shall be treated as a debt 

19 due the United States. 

20 ‘‘(c) TERMINATION.—Assignments may be termi21 nated by the agency or private sector organization con22 cerned for any reason at any time. 

23 ‘‘(d) DURATION.—Assignments under this chapter 

24 shall be for a period of between 6 months and 1 year, 

25 and may be extended in 3-month increments for a total
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1 of not more than 1 additional year, except that no assign2 ment under this chapter may commence after the end of 

3 the 5-year period beginning on the date of the enactment 

4 of this chapter. 

5 ‘‘(e) ASSISTANCE.—The Administrator for Federal 

6 Procurement Policy, by agreement with the Office of Per7 sonnel Management, may assist in the administration of 

8 this chapter, including by maintaining lists of potential 

9 candidates for assignment under this chapter, establishing 

10 mentoring relationships for the benefit of individuals who 

11 are given assignments under this chapter, and publicizing 

12 the program. 

13 ‘‘(f) CONSIDERATIONS.—In exercising any authority 

14 under this chapter, an agency shall take into consider15 ation—

16 ‘‘(1) the need to ensure that small business con17 cerns are appropriately represented with respect to 

18 the assignments described in sections 3803 and 

19 3804, respectively; and 

20 ‘‘(2) how assignments described in section 3803 

21 might best be used to help meet the needs of the 

22 agency for the training of employees in acquisition 

23 management. 
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1 ‘‘§ 3803. Assignment of employees to private sector or2 ganizations 

3 ‘‘(a) IN GENERAL.—An employee of an agency as4 signed to a private sector organization under this chapter 

5 is deemed, during the period of the assignment, to be on 

6 detail to a regular work assignment in his agency. 

7 ‘‘(b) COORDINATION WITH CHAPTER 81.—Notwith8 standing any other provision of law, an employee of an 

9 agency assigned to a private sector organization under this 

10 chapter is entitled to retain coverage, rights, and benefits 

11 under subchapter I of chapter 81, and employment during 

12 the assignment is deemed employment by the United 

13 States, except that, if the employee or the employee’s de14 pendents receive from the private sector organization any 

15 payment under an insurance policy for which the premium 

16 is wholly paid by the private sector organization, or other 

17 benefit of any kind on account of the same injury or death, 

18 then, the amount of such payment or benefit shall be cred19 ited against any compensation otherwise payable under 

20 subchapter I of chapter 81. 

21 ‘‘(c) REIMBURSEMENTS.—The assignment of an em22 ployee to a private sector organization under this chapter 

23 may be made with or without reimbursement by the pri24 vate sector organization for the travel and transportation 

25 expenses to or from the place of assignment, subject to 

26 the same terms and conditions as apply with respect to 
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1 an employee of a Federal agency or a State or local gov2 ernment under section 3375, and for the pay, or a part 

3 thereof, of the employee during assignment. Any reim4 bursements shall be credited to the appropriation of the 

5 agency used for paying the travel and transportation ex6 penses or pay. 

7 ‘‘(d) TORT LIABILITY; SUPERVISION.—The Federal 

8 Tort Claims Act and any other Federal tort liability stat9 ute apply to an employee of an agency assigned to a pri10 vate sector organization under this chapter. The super11 vision of the duties of an employee of an agency so as12 signed to a private sector organization may be governed 

13 by an agreement between the agency and the organization. 

14 ‘‘(e) SMALL BUSINESS CONCERNS.—

15 ‘‘(1) IN GENERAL.—The head of each agency 

16 shall take such actions as may be necessary to en17 sure that, of the assignments made under this chap18 ter from such agency to private sector organizations 

19 in each year, at least 20 percent are to small busi20 ness concerns. 

21 ‘‘(2) DEFINITIONS.—For purposes of this sub22 section—

23 ‘‘(A) the term ‘small business concern’ 

24 means a business concern that satisfies the 

25 definitions and standards specified by the Ad-
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1 ministrator of the Small Business Administra2 tion under section 3(a)(2) of the Small Busi3 ness Act (as from time to time amended by the 

4 Administrator); 

5 ‘‘(B) the term ‘year’ refers to the 12-

6 month period beginning on the date of the en7 actment of this chapter, and each succeeding 

8 12-month period in which any assignments 

9 under this chapter may be made; and 

10 ‘‘(C) the assignments ‘made’ in a year are 

11 those commencing in such year. 

12 ‘‘(3) REPORTING REQUIREMENT.—An agency 

13 which fails to comply with paragraph (1) in a year 

14 shall, within 90 days after the end of such year, sub15 mit a report to the Committees on Government Re16 form and Small Business of the House of Represent17 atives and the Committees on Governmental Affairs 

18 and Small Business of the Senate. The report shall 

19 include—

20 ‘‘(A) the total number of assignments 

21 made under this chapter from such agency to 

22 private sector organizations in the year; 

23 ‘‘(B) of that total number, the number 

24 (and percentage) made to small business con25 cerns; and 
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1 ‘‘(C) the reasons for the agency’s non2 compliance with paragraph (1). 

3 ‘‘(4) EXCLUSION.—This subsection shall not 

4 apply to an agency in any year in which it makes 

5 fewer than 5 assignments under this chapter to pri6 vate sector organizations. 

7 ‘‘§ 3804. Assignment of employees from private sector 

8 organizations 

9 ‘‘(a) IN GENERAL.—An employee of a private sector 

10 organization assigned to an agency under this chapter is 

11 deemed, during the period of the assignment, to be on de12 tail to such agency. 

13 ‘‘(b) TERMS AND CONDITIONS.—An employee of a 

14 private sector organization assigned to an agency under 

15 this chapter—

16 ‘‘(1) may continue to receive pay and benefits 

17 from the private sector organization from which he 

18 is assigned; 

19 ‘‘(2) is deemed, notwithstanding subsection (a), 

20 to be an employee of the agency for the purposes 

21 of—

22 ‘‘(A) chapter 73; 

23 ‘‘(B) sections 201, 203, 205, 207, 208, 

24 209, 603, 606, 607, 643, 654, 1905, and 1913 

25 of title 18;
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1 ‘‘(C) sections 1343, 1344, and 1349(b) of 

2 title 31; 

3 ‘‘(D) the Federal Tort Claims Act and any 

4 other Federal tort liability statute; 

5 ‘‘(E) the Ethics in Government Act of 

6 1978; 

7 ‘‘(F) section 1043 of the Internal Revenue 

8 Code of 1986; and 

9 ‘‘(G) section 27 of the Office of Federal 

10 Procurement Policy Act; 

11 ‘‘(3) may not have access to any trade secrets 

12 or to any other nonpublic information which is of 

13 commercial value to the private sector organization 

14 from which he is assigned; and 

15 ‘‘(4) is subject to such regulations as the Presi16 dent may prescribe. 

17 The supervision of an employee of a private sector organi18 zation assigned to an agency under this chapter may be 

19 governed by agreement between the agency and the private 

20 sector organization concerned. Such an assignment may 

21 be made with or without reimbursement by the agency for 

22 the pay, or a part thereof, of the employee during the pe23 riod of assignment, or for any contribution of the private 

24 sector organization to employee benefit systems. 
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1 ‘‘(c) COORDINATION WITH CHAPTER 81.—An em2 ployee of a private sector organization assigned to an 

3 agency under this chapter who suffers disability or dies 

4 as a result of personal injury sustained while performing 

5 duties during the assignment shall be treated, for the pur6 pose of subchapter I of chapter 81, as an employee as de7 fined by section 8101 who had sustained the injury in the 

8 performance of duty, except that, if the employee or the 

9 employee’s dependents receive from the private sector or10 ganization any payment under an insurance policy for 

11 which the premium is wholly paid by the private sector 

12 organization, or other benefit of any kind on account of 

13 the same injury or death, then, the amount of such pay14 ment or benefit shall be credited against any compensation 

15 otherwise payable under subchapter I of chapter 81. 

16 ‘‘(d) PROHIBITION AGAINST CHARGING CERTAIN

17 COSTS TO THE FEDERAL GOVERNMENT.—A private sec18 tor organization may not charge the Federal Government, 

19 as direct or indirect costs under a Federal contract, the 

20 costs of pay or benefits paid by the organization to an 

21 employee assigned to an agency under this chapter for the 

22 period of the assignment. 

23 ‘‘§ 3805. Reporting requirement 

24 ‘‘(a) IN GENERAL.—The Office of Personnel Manage25 ment shall, not later than April 30 and October 31 of each 
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1 year, prepare and submit to the Committee on Govern2 ment Reform of the House of Representatives and the 

3 Committee on Governmental Affairs of the Senate a semi4 annual report summarizing the operation of this chapter 

5 during the immediately preceding 6-month period ending 

6 on March 31 and September 30, respectively. 

7 ‘‘(b) CONTENT.—Each report shall include, with re8 spect to the 6-month period to which such report relates—

9 ‘‘(1) the total number of individuals assigned 

10 to, and the total number of individuals assigned 

11 from, each agency during such period; 

12 ‘‘(2) a brief description of each assignment in13 cluded under paragraph (1), including—

14 ‘‘(A) the name of the assigned individual, 

15 as well as the private sector organization and 

16 the agency (including the specific bureau or 

17 other agency component) to or from which such 

18 individual was assigned; 

19 ‘‘(B) the respective positions to and from 

20 which the individual was assigned, including the 

21 duties and responsibilities and the pay grade or 

22 level associated with each; and 

23 ‘‘(C) the duration and objectives of the in24 dividual’s assignment; and 
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1 ‘‘(3) such other information as the Office con2 siders appropriate. 

3 ‘‘(c) PUBLICATION.—A copy of each report submitted 

4 under subsection (a)—

5 ‘‘(1) shall be published in the Federal Register; 

6 and 

7 ‘‘(2) shall be made publicly available on the 

8 Internet. 

9 ‘‘(d) AGENCY COOPERATION.—On request of the Of10 fice, agencies shall furnish such information and reports 

11 as the Office may require in order to carry out this sec12 tion. 

13 ‘‘§ 3806. Regulations 

14 ‘‘The Director of the Office of Personnel Manage15 ment shall prescribe regulations for the administration of 

16 this chapter.’’. 

17 (b) REPORT.—Not later than 4 years after the date 

18 of the enactment of this Act, the General Accounting Of19 fice shall prepare and submit to the Committee on Govern20 ment Reform of the House of Representatives and the 

21 Committee on Governmental Affairs of the Senate a report 

22 on the operation of chapter 38 of title 5, United States 

23 Code (as added by this section). Such report shall in24 clude—
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1 (1) an evaluation of the effectiveness of the pro2 gram established by such chapter; and 

3 (2) a recommendation as to whether such pro4 gram should be continued (with or without modifica5 tion) or allowed to lapse. 

6 (c) CLERICAL AMENDMENT.—The table of chapters 

7 at the beginning of part III of title 5, United States Code, 

8 is amended by inserting after the item relating to chapter 

9 37 the following:

‘‘38. Acquisition Professional Exchange Program ................ 3801’’.

10 (d) COORDINATION WITH ACQUISITION WORKFORCE

11 PROVISIONS OF OFFICE OF FEDERAL PROCUREMENT

12 POLICY ACT.—Section 37 of the Office of Federal Pro13 curement Policy Act (41 U.S.C. 433) is amended by add14 ing at the end the following new subsection: 

15 ‘‘(i) AUTHORITY TO DETAIL EMPLOYEES TO NON16 FEDERAL EMPLOYERS.—(1) In carrying out the provi17 sions of this section, the Administrator, by agreement with 

18 the Director of the Office of Personnel Management, may 

19 provide for a program under which a Federal employee 

20 may be detailed to a non-Federal employer. The Adminis21 trator, by agreement with the Director of the Office of 

22 Personnel Management, shall prescribe regulations for 

23 such program, including the conditions for service and du24 ties as the Administrator considers necessary.
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1 ‘‘(2) An assignment described in section 3803 of title 

2 5, United States Code, may not be made unless a program 

3 under paragraph (1) is established, and the assignment 

4 is made in accordance with the requirements of such pro5 gram.’’. 

6 (e) ETHICS PROVISIONS.—

7 (1) ONE-YEAR RESTRICTION ON CERTAIN COM8 MUNICATIONS.—Section 207(c)(2)(A)(v) of title 18, 

9 United States Code, is amended by inserting ‘‘or 

10 38’’ after ‘‘chapter 37’’. 

11 (2) DISCLOSURE OF CONFIDENTIAL INFORMA12 TION.—Section 1905 of title 18, United States Code, 

13 is amended by inserting ‘‘or 38’’ after ‘‘chapter 37’’. 

14 (3) CONTRACT ADVICE.—Section 207(l) of title 

15 18, United States Code, is amended—

16 (A) in the subsection heading, by striking 

17 ‘‘DETAILS.—’’ and inserting ‘‘DETAILEES.—’’; 

18 and 

19 (B) by inserting ‘‘or 38’’ after ‘‘chapter 

20 37’’. 

21 (4) RESTRICTION ON DISCLOSURE OF PRO22 CUREMENT INFORMATION.—Section 27 of the Office 

23 of Federal Procurement Policy Act (41 U.S.C. 423) 

24 is amended in the last sentence of subsection (a)(1) 

25 by inserting ‘‘or 38’’ after ‘‘chapter 37’’. 
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1 (f) TECHNICAL AND CONFORMING AMENDMENTS.—

2 (1) AMENDMENTS TO TITLE 5, UNITED STATES

3 CODE.—Title 5, United States Code, is amended—

4 (A) in section 3111(d), by inserting ‘‘or 

5 38’’ after ‘‘chapter 37’’; and 

6 (B) in section 7353(b)(4), by inserting ‘‘or 

7 38’’ after ‘‘chapter 37’’. 

8 (2) AMENDMENT TO TITLE 18, UNITED STATES

9 CODE.—Section 209(g) of title 18, United States 

10 Code, is amended—

11 (A) in paragraph (1), by inserting ‘‘or 38’’ 

12 after ‘‘chapter 37’’; and 

13 (B) by amending paragraph (2) to read as 

14 follows: 

15 ‘‘(2) For purposes of this subsection, the term ‘agen16 cy’—

17 ‘‘(A) with respect to assignments under chapter 

18 37 of title 5, means an agency (as defined in section 

19 3701 of title 5) and the Office of the Chief Tech20 nology Officer of the District of Columbia; and 

21 ‘‘(B) with respect to assignments under chapter 

22 38 of title 5, means an agency (as defined by section 

23 3801 of title 5).’’. 

24 (3) ELIGIBILITY FOR THRIFT SAVINGS PLAN.—

25 Section 125(c)(1)(D) of Public Law 100–238 (101 
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1 Stat. 1757; 5 U.S.C. 8432 note) is amended by in2 serting ‘‘or 38’’ after ‘‘chapter 37’’. 

3 SEC. 102. SHARE-IN-SAVINGS INITIATIVES. 

4 (a) DEFENSE CONTRACTS.—Section 2332 of title 10, 

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

6 ‘‘§ 2332. Share-in-savings contracts 

7 ‘‘(a) AUTHORITY TO ENTER INTO SHARE-IN-SAV8 INGS CONTRACTS.—(1) The head of an agency may enter 

9 into a share-in-savings contract in which the Government 

10 awards a contract to improve mission-related or adminis11 trative processes or to accelerate the achievement of its 

12 mission and share with the contractor in savings achieved 

13 through contract performance. 

14 ‘‘(2)(A) Except as provided in subparagraph (B), a 

15 share-in-savings contract shall be awarded for a period of 

16 not more than five years. 

17 ‘‘(B) A share-in-savings contract may be awarded for 

18 a period greater than five years, but not more than 10 

19 years, if the head of the agency determines in writing prior 

20 to award of the contract that—

21 ‘‘(i) the level of risk to be assumed and the in22 vestment to be undertaken by the contractor is likely 

23 to inhibit the government from obtaining the needed 

24 performance competitively at a fair and reasonable 
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1 price if the contract is limited in duration to a pe2 riod of five years or less; and 

3 ‘‘(ii) the performance to be acquired is likely to 

4 continue for a period of time sufficient to generate 

5 reasonable benefit for the government. 

6 ‘‘(3) Contracts awarded pursuant to the authority of 

7 this section shall, to the maximum extent practicable, be 

8 performance-based contracts that identify objective out9 comes and contain performance standards that will be 

10 used to measure achievement and milestones that must 

11 be met before payment is made. 

12 ‘‘(4) Contracts awarded pursuant to the authority of 

13 this section shall include a provision containing a quantifi14 able baseline that is to be the basis upon which a savings 

15 share ratio is established that governs the amount of pay16 ment a contractor is to receive under the contract. Before 

17 commencement of performance of such a contract, the 

18 chief acquisition officer of the agency, or, in the case of 

19 an agency without a chief acquisition officer, the senior 

20 procurement executive, shall determine in writing that the 

21 terms of the provision are quantifiable and will likely yield 

22 value to the Government. 

23 ‘‘(5)(A) The head of the agency may retain savings 

24 realized through the use of a share-in-savings contract 

25 under this section that are in excess of the total amount 
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1 of savings paid to the contractor under the contract. Ex2 cept as provided in subparagraph (B), savings shall be 

3 credited to the appropriation or fund against which 

4 charges were made to carry out the contract. 

5 ‘‘(B) Amounts retained by the agency under this sub6 section shall—

7 ‘‘(i) without further appropriation, remain 

8 available until expended; and 

9 ‘‘(ii) be applied first to fund any contingent li10 abilities associated with share-in-savings procure11 ments that are not fully funded. 

12 ‘‘(b) CANCELLATION AND TERMINATION.—(1) If 

13 funds are not made available for the continuation of a 

14 share-in-savings contract entered into under this section 

15 in a subsequent fiscal year, the contract shall be canceled 

16 or terminated. The costs of cancellation or termination 

17 may be paid out of—

18 ‘‘(A) appropriations available for the perform19 ance of the contract; 

20 ‘‘(B) appropriations available for acquisition of 

21 the type of property or services procured under the 

22 contract, and not otherwise obligated; or 

23 ‘‘(C) funds subsequently appropriated for pay24 ments of costs of cancellation or termination, subject 

25 to the limitations in paragraph (3).
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1 ‘‘(2) The amount payable in the event of cancellation 

2 or termination of a share-in-savings contract shall be ne3 gotiated with the contractor at the time the contract is 

4 entered into. 

5 ‘‘(3) The head of an agency may enter into share6 in-savings contracts under this section in any given fiscal 

7 year even if funds are not made specifically available for 

8 the full costs of cancellation or termination of the contract 

9 if funds are available and sufficient to make payments 

10 with respect to the first fiscal year of the contract and 

11 the following conditions are met regarding the funding of 

12 cancellation and termination liability: 

13 ‘‘(A) The amount of unfunded contingent liabil14 ity for the contract does not exceed the lesser of—

15 ‘‘(i) 50 percent of the estimated costs of a 

16 cancellation or termination; or 

17 ‘‘(ii) $10,000,000. 

18 ‘‘(B) Unfunded contingent liability in excess of 

19 $5,000,000 has been approved by the Director of the 

20 Office of Management and Budget or the Director’s 

21 designee. 

22 ‘‘(c) DEFINITIONS.—In this section: 

23 ‘‘(1) The term ‘contractor’ means a private en24 tity that enters into a contract with an agency. 

25 ‘‘(2) The term ‘savings’ means—
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1 ‘‘(A) monetary savings to an agency; or 

2 ‘‘(B) savings in time or other benefits real3 ized by the agency, including enhanced reve4 nues. 

5 ‘‘(3) The term ‘share-in-savings contract’ means 

6 a contract under which—

7 ‘‘(A) a contractor provides solutions for—

8 ‘‘(i) improving the agency’s mission9 related or administrative processes; or 

10 ‘‘(ii) accelerating the achievement of 

11 agency missions; and 

12 ‘‘(B) the head of the agency pays the con13 tractor an amount equal to a portion of the sav14 ings derived by the agency from—

15 ‘‘(i) any improvements in mission-re16 lated or administrative processes that re17 sult from implementation of the solution; 

18 or 

19 ‘‘(ii) acceleration of achievement of 

20 agency missions.’’. 

21 (b) OTHER CONTRACTS.—Section 317 of the Federal 

22 Property and Administrative Services Act of 1949 (41 

23 U.S.C. 266a) is amended to read as follows: 
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1 ‘‘SEC. 317. SHARE-IN-SAVINGS CONTRACTS. 

2 ‘‘(a) AUTHORITY TO ENTER INTO SHARE-IN-SAV3 INGS CONTRACTS.—(1) The head of an executive agency 

4 may enter into a share-in-savings contract in which the 

5 Government awards a contract to improve mission-related 

6 or administrative processes or to accelerate the achieve7 ment of its mission and share with the contractor in sav8 ings achieved through contract performance. 

9 ‘‘(2)(A) Except as provided in subparagraph (B), a 

10 share-in-savings contract shall be awarded for a period of 

11 not more than five years. 

12 ‘‘(B) A share-in-savings contract may be awarded for 

13 a period greater than five years, but not more than 10 

14 years, if the head of the agency determines in writing prior 

15 to award of the contract that—

16 ‘‘(i) the level of risk to be assumed and the in17 vestment to be undertaken by the contractor is likely 

18 to inhibit the government from obtaining the needed 

19 performance competitively at a fair and reasonable 

20 price if the contract is limited in duration to a pe21 riod of five years or less; and 

22 ‘‘(ii) the performance to be acquired is likely to 

23 continue for a period of time sufficient to generate 

24 reasonable benefit for the government. 

25 ‘‘(3) Contracts awarded pursuant to the authority of 

26 this section shall, to the maximum extent practicable, be 
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1 performance-based contracts that identify objective out2 comes and contain performance standards that will be 

3 used to measure achievement and milestones that must 

4 be met before payment is made. 

5 ‘‘(4) Contracts awarded pursuant to the authority of 

6 this section shall include a provision containing a quantifi7 able baseline that is to be the basis upon which a savings 

8 share ratio is established that governs the amount of pay9 ment a contractor is to receive under the contract. Before 

10 commencement of performance of such a contract, the 

11 chief acquisition officer of the agency, or, in the case of 

12 an agency without a chief acquisition officer, the senior 

13 procurement executive, shall determine in writing that the 

14 terms of the provision are quantifiable and will likely yield 

15 value to the Government. 

16 ‘‘(5)(A) The head of the agency may retain savings 

17 realized through the use of a share-in-savings contract 

18 under this section that are in excess of the total amount 

19 of savings paid to the contractor under the contract. Ex20 cept as provided in subparagraph (B), savings shall be 

21 credited to the appropriation or fund against which 

22 charges were made to carry out the contract. 

23 ‘‘(B) Amounts retained by the agency under this sub24 section shall—
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1 ‘‘(i) without further appropriation, remain 

2 available until expended; and 

3 ‘‘(ii) be applied first to fund any contingent li4 abilities associated with share-in-savings procure5 ments that are not fully funded. 

6 ‘‘(b) CANCELLATION AND TERMINATION.—(1) If 

7 funds are not made available for the continuation of a 

8 share-in-savings contract entered into under this section 

9 in a subsequent fiscal year, the contract shall be canceled 

10 or terminated. The costs of cancellation or termination 

11 may be paid out of—

12 ‘‘(A) appropriations available for the perform13 ance of the contract; 

14 ‘‘(B) appropriations available for acquisition of 

15 the type of property or services procured under the 

16 contract, and not otherwise obligated; or 

17 ‘‘(C) funds subsequently appropriated for pay18 ments of costs of cancellation or termination, subject 

19 to the limitations in paragraph (3). 

20 ‘‘(2) The amount payable in the event of cancellation 

21 or termination of a share-in-savings contract shall be ne22 gotiated with the contractor at the time the contract is 

23 entered into. 

24 ‘‘(3) The head of an executive agency may enter into 

25 share-in-savings contracts under this section in any given
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1 fiscal year even if funds are not made specifically available 

2 for the full costs of cancellation or termination of the con3 tract if funds are available and sufficient to make pay4 ments with respect to the first fiscal year of the contract 

5 and the following conditions are met regarding the funding 

6 of cancellation and termination liability: 

7 ‘‘(A) The amount of unfunded contingent liabil8 ity for the contract does not exceed the lesser of—

9 ‘‘(i) 50 percent of the estimated costs of a 

10 cancellation or termination; or 

11 ‘‘(ii) $10,000,000. 

12 ‘‘(B) Unfunded contingent liability in excess of 

13 $5,000,000 has been approved by the Director of the 

14 Office of Management and Budget or the Director’s 

15 designee. 

16 ‘‘(c) DEFINITIONS.—In this section: 

17 ‘‘(1) The term ‘contractor’ means a private en18 tity that enters into a contract with an agency. 

19 ‘‘(2) The term ‘savings’ means—

20 ‘‘(A) monetary savings to an agency; or 

21 ‘‘(B) savings in time or other benefits real22 ized by the agency, including enhanced reve23 nues. 

24 ‘‘(3) The term ‘share-in-savings contract’ means 

25 a contract under which—
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1 ‘‘(A) a contractor provides solutions for—

2 ‘‘(i) improving the agency’s mission3 related or administrative processes; or 

4 ‘‘(ii) accelerating the achievement of 

5 agency missions; and 

6 ‘‘(B) the head of the agency pays the con7 tractor an amount equal to a portion of the sav8 ings derived by the agency from—

9 ‘‘(i) any improvements in mission-re10 lated or administrative processes that re11 sult from implementation of the solution; 

12 or 

13 ‘‘(ii) acceleration of achievement of 

14 agency missions.’’. 

15 (c) DEVELOPMENT OF INCENTIVES.—The Director 

16 of the Office of Management and Budget shall—

17 (1) identify potential opportunities for the use 

18 of share-in-savings contracts; 

19 (2) provide guidance to executive agencies for 

20 determining mutually beneficial savings share ratios 

21 and baselines from which savings may be measured; 

22 and 

23 (3) in consultation with the Committee on Gov24 ernmental Affairs of the Senate, the Committee on 

25 Government Reform of the House of Representa-
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1 tives, and executive agencies, develop techniques to 

2 permit an executive agency to retain a portion of the 

3 savings (after payment of the contractor’s share of 

4 the savings) derived from share-in-savings contracts 

5 as funds are appropriated to the agency in future 

6 fiscal years. 

7 (d) REGULATIONS.—Not later than 180 days after 

8 the date of the enactment of this Act, the Federal Acquisi9 tion Regulation shall be revised to implement the provi10 sions enacted by this section. Such revisions shall—

11 (1) provide for the use of competitive proce12 dures in the selection and award of share-in-savings 

13 contracts to—

14 (A) ensure the contractor’s share of sav15 ings reflects the risk involved and market condi16 tions; and 

17 (B) otherwise yield best value to the gov18 ernment; and 

19 (2) allow appropriate regulatory flexibility to fa20 cilitate the use of share-in-savings contracts by exec21 utive agencies, including the use of innovative provi22 sions for technology refreshment and nonstandard 

23 Federal Acquisition Regulation contract clauses. 

24 (e) OMB REPORT TO CONGRESS.—In consultation 

25 with executive agencies, the Director of the Office of Man-
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1 agement and Budget shall, not later than 2 years after 

2 the completion of the revisions to the Federal Acquisition 

3 Regulation under subsection (d), submit to Congress a re4 port containing—

5 (1) a description of the number of share-in-sav6 ings contracts entered into by each executive agency 

7 under by this section and the amendments made by 

8 this section, and, for each contract identified—

9 (A) the performance acquired; 

10 (B) the total amount of payments made to 

11 the contractor; and 

12 (C) the total amount of savings or other 

13 measurable benefits realized; 

14 (2) a description of the ability of agencies to de15 termine the baseline costs of a project against which 

16 savings can be measured; and 

17 (3) any recommendations, as the Director 

18 deems appropriate, regarding additional changes in 

19 law that may be necessary to ensure effective use of 

20 share-in-savings contracts by executive agencies. 

21 (f) DEFINITIONS.—In this section, the terms ‘‘con22 tractor’’, ‘‘savings’’, and ‘‘share-in-savings contract’’ have 

23 the meanings given those terms in section 2332 of title 

24 10, United States Code, and section 317 of the Federal 
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1 Property and Administrative Services Act of 1949 (as 

2 amended by subsections (a) and (b)). 

3 (g) REPEAL OF SUPERSEDED PROVISIONS.—Sub4 sections (c), (d), (e), (f), (g), and (i) of section 210 of 

5 the E-Government Act of 2002 (Public Law 107–347; 116 

6 Stat. 2936) are repealed. 

7 SEC. 103. INFLATION ADJUSTMENT FOR ACQUISITION-RE8 LATED DOLLAR THRESHOLDS. 

9 (a) REQUIREMENT FOR ADJUSTMENT.—The Office 

10 of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) 

11 is amended by adding at the end the following new section: 

12 ‘‘SEC. 42. INFLATION ADJUSTMENT FOR ACQUISITION-RE13 LATED DOLLAR THRESHOLDS. 

14 ‘‘(a) REQUIREMENT FOR ADJUSTMENT.—In each 

15 year that is divisible by 5, the Federal Acquisition Regu16 latory Council (established under section 25) shall adjust 

17 each dollar threshold set out in an acquisition statute to 

18 the amount that is equal to the October 1, 2000 constant 

19 dollar value for that threshold, as determined on the basis 

20 of the Consumer Price Index for October of the year in 

21 which adjusted. 

22 ‘‘(b) ROUNDING OF ADJUSTED AMOUNTS.—In the 

23 application of a percentage adjustment to the amount of 

24 a dollar threshold under subsection (a), the calculated 

25 amount shall be rounded as follows:
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1 ‘‘(1) In the case of a dollar threshold that is 

2 less than $10,000 before the adjustment, to the 

3 nearest $500. 

4 ‘‘(2) In the case of a dollar threshold that is 

5 less than $100,000 but not less than $10,000 before 

6 the adjustment, to the nearest $5,000. 

7 ‘‘(3) In the case of a dollar threshold that is 

8 less than $1,000,000 but not less than $100,000 be9 fore the adjustment, to the nearest $50,000. 

10 ‘‘(4) In the case of a dollar threshold that is 

11 $1,000,000 or more before the adjustment, to the 

12 nearest $500,000. 

13 ‘‘(c) PUBLICATION.—The Federal Acquisition Regu14 latory Council shall publish each adjusted dollar threshold 

15 under this section in the Federal Register. 

16 ‘‘(d) EFFECTIVE DATE OF ADJUSTMENT.—An ad17 justed dollar threshold under this section shall have the 

18 force and effect of law beginning on the date of the publi19 cation of the threshold in the Federal Register under sub20 section (c). 

21 ‘‘(e) DEFINITIONS.—In this section: 

22 ‘‘(1) The term ‘acquisition statute’ means any 

23 provision of a statute, including a definition, that 

24 governs the applicability of any policy, procedure, re-
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•HR 4228 IH 

1 quirement, restriction, or condition to the acquisition 

2 of goods or services by executive agencies. 

3 ‘‘(2) The term ‘Consumer Price Index’ means 

4 the Consumer Price Index for all-urban consumers 

5 published monthly by the Department of Labor.’’. 

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

7 in section 1(b) of such Act is amended by adding at the 

8 end the following new item:

‘‘Sec. 42. Inflation adjustment for acquisition-related dollar thresholds.’’.

9 SEC. 104. AGENCY ACQUISITION PROTESTS. 

10 (a) DEFENSE CONTRACTS.—(1) Chapter 137 of title 

11 10, United States Code, is amended by inserting after sec12 tion 2305a the following new section: 

13 ‘‘§ 2305b. Protests 

14 ‘‘(a) IN GENERAL.—An interested party may protest 

15 an acquisition of supplies or services by an agency based 

16 on an alleged violation of an acquisition law or regulation, 

17 and a decision regarding such alleged violation shall be 

18 made by the agency in accordance with this section. 

19 ‘‘(b) RESTRICTION ON CONTRACT AWARD PEND20 ING.—(1) Except as provided in paragraph (2), a contract 

21 may not be awarded by an agency after a protest con22 cerning the acquisition has been submitted under this sec23 tion and while the protest is pending. 

24 ‘‘(2) The head of the acquisition activity responsible 

25 for the award of the contract may authorize the award 
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1 of a contract, notwithstanding a pending protest under 

2 this section, upon making a written finding that urgent 

3 and compelling circumstances do not allow for waiting for 

4 a decision on the protest. 

5 ‘‘(c) RESTRICTION ON CONTRACT PERFORMANCE

6 PENDING DECISION.—(1) Except as provided in para7 graph (2), performance of a contract may not be author8 ized (and performance of the contract shall cease if per9 formance has already begun) in any case in which a pro10 test of the contract award is submitted under this section 

11 before the later of—

12 ‘‘(A) the date that is 10 days after the date of 

13 contract award; or 

14 ‘‘(B) the date that is five days after an agency 

15 debriefing date offered to an unsuccessful offeror for 

16 any debriefing that is requested and, when re17 quested, is required, under section 2305(b)(5) of 

18 this title. 

19 ‘‘(2) The head of the acquisition activity responsible 

20 for the award of a contract may authorize performance 

21 of the contract notwithstanding a pending protest under 

22 this section upon making a written finding that urgent 

23 and compelling circumstances do not allow for waiting for 

24 a decision on the protest. 
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1 ‘‘(d) DEADLINE FOR DECISION.—The head of an 

2 agency shall issue a decision on a protest under this sec3 tion not later than the date that is 20 working days after 

4 the date on which the protest is submitted to such head 

5 of an agency. 

6 ‘‘(e) JUDICIAL REVIEW.—A decision on a protest 

7 under this section is not subject to judicial review. 

8 ‘‘(f) CONSTRUCTION.—Nothing in this section shall 

9 affect the right of an interested party to file a protest with 

10 the Comptroller General under subchapter V of chapter 

11 35 of title 31. An interested party who has filed a protest 

12 under this section with respect to an acquisition may not 

13 file an action with respect to that acquisition in the United 

14 States Court of Federal Claims while the protest is pend15 ing. 

16 ‘‘(g) DEFINITIONS.—In this section, the terms ‘pro17 test’ and ‘interested party’ have the meanings given such 

18 terms in section 3551 of title 31.’’. 

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

20 chapter is amended by inserting after the item relating 

21 to section 2305a the following new item:

‘‘2305b. Protests.’’.

22 (b) OTHER AGENCIES.—Title III of the Federal 

23 Property and Administrative Services Act of 1949 is 

24 amended by inserting after section 303M (41 U.S.C. 

25 253m) the following new section: 
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1 ‘‘SEC. 303N. PROTESTS. 

2 ‘‘(a) IN GENERAL.—An interested party may protest 

3 an acquisition of supplies or services by an executive agen4 cy based on an alleged violation of an acquisition law or 

5 regulation, and a decision regarding such alleged violation 

6 shall be made by the agency in accordance with this sec7 tion. 

8 ‘‘(b) RESTRICTION ON CONTRACT AWARD PENDING

9 DECISION.—(1) Except as provided in paragraph (2), a 

10 contract may not be awarded by an agency after a protest 

11 concerning the acquisition has been submitted under this 

12 section and while the protest is pending. 

13 ‘‘(2) The head of the acquisition activity responsible 

14 for the award of a contract may authorize the award of 

15 the contract, notwithstanding a pending protest under this 

16 section, upon making a written finding that urgent and 

17 compelling circumstances do not allow for waiting for a 

18 decision on the protest. 

19 ‘‘(c) RESTRICTION ON CONTRACT PERFORMANCE

20 PENDING DECISION.—(1) Except as provided in para21 graph (2), performance of a contract may not be author22 ized (and performance of the contract shall cease if per23 formance has already begun) in any case in which a pro24 test of the contract award is submitted under this section 

25 before the later of—
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•HR 4228 IH 

1 ‘‘(A) the date that is 10 days after the date of 

2 contract award; or 

3 ‘‘(B) the date that is five days after an agency 

4 debriefing date offered to an unsuccessful offeror for 

5 any debriefing that is requested and, when re6 quested, is required, under section 303B(e) of this 

7 title. 

8 ‘‘(2) The head of the acquisition activity responsible 

9 for the award of a contract may authorize performance 

10 of the contract notwithstanding a pending protest under 

11 this section upon making a written finding that urgent 

12 and compelling circumstances do not allow for waiting for 

13 a decision on the protest. 

14 ‘‘(d) DEADLINE FOR DECISION.—The head of an ex15 ecutive agency shall issue a decision on a protest under 

16 this section not later than the date that is 20 working 

17 days after the date on which the protest is submitted to 

18 the executive agency. 

19 ‘‘(e) JUDICIAL REVIEW.—A decision on a protest 

20 under this section shall not be subject to judicial review. 

21 ‘‘(f) CONSTRUCTION.—Nothing in this section shall 

22 affect the right of an interested party to file a protest with 

23 the Comptroller General under subchapter V of chapter 

24 35 of title 31, United States Code. An interested party 

25 who has filed a protest under this section with respect to 
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1 an acquisition may not file an action with respect to that 

2 acquisition in the United States Court of Federal Claims 

3 while the protest is pending. 

4 ‘‘(g) DEFINITIONS.—In this section, the terms ‘pro5 test’ and ‘interested party’ have the meanings given such 

6 terms in section 3551 of title 31, United States Code.’’. 

7 (c) CONFORMING AMENDMENT.—Section 3553(d)(4) 

8 of title 31, United States Code, is amended—

9 (1) in subparagraph (A), by striking ‘‘or’’ at 

10 the end; 

11 (2) by striking the period at the end of sub12 paragraph (B) and inserting ‘‘; or’’; and 

13 (3) by adding at the end the following new sub14 paragraph: 

15 ‘‘(C) in the case of a protest of the same matter 

16 regarding such contract that is submitted under sec17 tion 2305b of title 10 or section 303N of the Fed18 eral Property and Administrative Services Act of 

19 1949, the date that is 5 days after the date on 

20 which a decision on that protest is issued.’’. 

21 SEC. 105. EXTENSION OF AUTHORITY FOR USE OF SIM22 PLIFIED ACQUISITION PROCEDURES. 

23 Section 4202(e) of the Clinger-Cohen Act (division D 

24 of Public Law 104–106; 110 Stat. 652; 10 U.S.C. 2304 
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•HR 4228 IH 

1 note) is amended by striking ‘‘January 1, 2006’’ and in2 serting ‘‘January 1, 2009’’. 

3 SEC. 106. REDUNDANCY IN PROCUREMENT OF TELE4 COMMUNICATIONS SERVICES. 

5 (a) REGULATIONS REQUIRED.—Not later than 180 

6 days after the date of the enactment of this Act, the Fed7 eral Acquisition Regulation shall be revised to require an 

8 executive agency, in the procurement of telecommuni9 cations services (including information services) to pro10 vide, to the maximum extent practicable, that such serv11 ices include (1) redundant and physically separate points 

12 of entry; and (2) physically diverse local network facilities. 

13 (b) DEFINITIONS.—In this section: 

14 (1) The terms ‘‘telecommunications service’’ 

15 and ‘‘information service’’ have the meanings pro16 vided in section 3 of the Communications Act of 

17 1934 (47 U.S.C. 153). 

18 (2) The term ‘‘executive agency’’ has the mean19 ing provided in section 4 of the Office of Federal 

20 Procurement Policy Act (41 U.S.C. 403). 

21 (3) The term ‘‘Federal Acquisition Regulation’’ 

22 means the single Government-wide procurement reg23 ulation issued in accordance with sections 6 and 25 

24 of the Office of Federal Procurement Policy Act (41 

25 U.S.C. 405, 421). 
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1 TITLE II—CONTRACT DISPUTE 

2 ENHANCEMENT 

3 Subtitle A—General Provisions 

4 SEC. 211. DEFINITIONS. 

5 (a) IN GENERAL.—The Office of Federal Procure6 ment Policy Act (41 U.S.C. 401 et seq.) is amended by 

7 adding at the end the following: 

8 ‘‘TITLE II—DISPUTE 

9 RESOLUTION 

10 ‘‘Subtitle A—General Provisions 

11 ‘‘SEC. 201. DEFINITIONS. 

12 ‘‘In this title: 

13 ‘‘(1) The term ‘Defense Board’ means the De14 partment of Defense Board of Contract Appeals es15 tablished pursuant to section 8(a)(1) of the Contract 

16 Disputes Act of 1978 (41 U.S.C. 607). 

17 ‘‘(2) The term ‘Civilian Board’ means the Civil18 ian Board of Contract Appeals established pursuant 

19 to section 8(b)(1) of the Contract Disputes Act of 

20 1978 (41 U.S.C. 607). 

21 ‘‘(3) The term ‘Board judge’ means a member 

22 of the Defense Board or the Civilian Board, as the 

23 case may be. 
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•HR 4228 IH 

1 ‘‘(4) The term ‘Chairman’ means the Chairman 

2 of the Defense Board or the Civilian Board, as the 

3 case may be. 

4 ‘‘(5) The term ‘Board concerned’ means—

5 ‘‘(A) the Defense Board with respect to 

6 matters within its jurisdiction; and 

7 ‘‘(B) the Civilian Board with respect to 

8 matters within its jurisdiction. 

9 ‘‘(6) The term ‘executive agency’—

10 ‘‘(A) with respect to contract disputes 

11 under the jurisdiction of the Defense Board, 

12 means the Department of Defense, the Depart13 ment of the Army, the Department of the Navy, 

14 the Department of the Air Force, or the Na15 tional Aeronautics and Space Administration; 

16 and 

17 ‘‘(B) with respect to contract disputes 

18 under the jurisdiction of the Civilian Board, has 

19 the meaning given by section 4(1) of this Act 

20 except that the term does not include the De21 partment of Defense, the Department of the 

22 Army, the Department of the Navy, the Depart23 ment of the Air Force, the National Aero24 nautics and Space Administration, and the Ten25 nessee Valley Authority.’’.
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1 (b) CONFORMING AMENDMENTS.—The Office of 

2 Federal Procurement Policy Act (41 U.S.C. 401 et seq.) 

3 is further amended—

4 (1) by inserting the following before section 1: 

5 ‘‘TITLE I—FEDERAL PROCURE6 MENT POLICY GENERALLY’’; 

7 and 

8 (2) in section 4, by striking out ‘‘As used in 

9 this Act:’’ and inserting in lieu thereof ‘‘Except as 

10 otherwise specifically provided, as used in this Act:’’. 

11 Subtitle B—Establishment of Civil12 ian and Defense Boards of Con13 tract Appeals 

14 SEC. 221. ESTABLISHMENT. 

15 (a) DEFENSE BOARD.—Subsection (a)(1) of section 

16 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607) 

17 is amended to read as follows: 

18 ‘‘(a)(1) There is established in the Department of De19 fense a board of contract appeals to be known as the De20 partment of Defense Board of Contract Appeals.’’. 

21 (b) CIVILIAN BOARD.—Subsection (b)(1) of section 

22 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607) 

23 is amended to read as follows: 
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•HR 4228 IH 

1 ‘‘(b)(1) There is established in the General Services 

2 Administration a board of contract appeals to be known 

3 as the Civilian Board of Contract Appeals.’’. 

4 SEC. 222. MEMBERSHIP. 

5 The Office of Federal Procurement Policy Act (41 

6 U.S.C. 401 et seq.), as amended by section 211, is further 

7 amended by adding at the end the following: 

8 ‘‘SEC. 202. MEMBERSHIP. 

9 ‘‘(a) APPOINTMENT.—(1)(A) The Defense Board 

10 shall consist of judges appointed by the Secretary of De11 fense from a register of applicants maintained by the De12 fense Board, in accordance with rules issued by the De13 fense Board for establishing and maintaining a register 

14 of eligible applicants and selecting Defense Board judges. 

15 The Secretary shall appoint a judge without regard to po16 litical affiliation and solely on the basis of the professional 

17 qualifications required to perform the duties and respon18 sibilities of a Defense Board judge. 

19 ‘‘(B) The Civilian Board shall consist of judges ap20 pointed by the Administrator for Federal Procurement 

21 Policy from a register of applicants maintained by the Ad22 ministrator, in accordance with rules issued by the Admin23 istrator for establishing and maintaining a register of eli24 gible applicants and selecting Civilian Board judges. The 

25 Administrator shall appoint a judge without regard to po-
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•HR 4228 IH 

1 litical affiliation and solely on the basis of the professional 

2 qualifications required to perform the duties and respon3 sibilities of a Civilian Board judge. 

4 ‘‘(2) The members of the Defense Board and the Ci5 vilian Board shall be selected and appointed to serve in 

6 the same manner as administrative law judges appointed 

7 pursuant to section 3105 of title 5, United States Code, 

8 with an additional requirement that such members shall 

9 have had not fewer than five years of experience in public 

10 contract law. 

11 ‘‘(3) Notwithstanding paragraph (2) and subject to 

12 subsection (b), the following persons shall serve as Board 

13 judges: 

14 ‘‘(A) For the Defense Board, any full-time 

15 member of the Armed Services Board of Contract 

16 Appeals serving as such on the day before the effec17 tive date of this title. 

18 ‘‘(B) For the Civilian Board, any full-time 

19 member of any agency board of contract appeals 

20 other than the Armed Services Board of Contract 

21 Appeals, the Postal Service Board of Contract Ap22 peals, and the board of contract appeals of the Ten23 nessee Valley Authority serving as such on the day 

24 before the effective date of this title. 
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1 ‘‘(b) REMOVAL.—Members of the Defense Board and 

2 the Civilian Board shall be subject to removal in the same 

3 manner as administrative law judges, as provided in sec4 tion 7521 of title 5, United States Code. 

5 ‘‘(c) COMPENSATION.—Compensation for the Chair6 man of the Defense Board and the Chairman of the Civil7 ian Board and all other members of each Board shall be 

8 determined under section 5372a of title 5, United States 

9 Code.’’. 

10 SEC. 223. CHAIRMEN. 

11 The Office of Federal Procurement Policy Act (41 

12 U.S.C. 401 et seq.), as amended by section 222, is further 

13 amended by adding at the end the following: 

14 ‘‘SEC. 203. CHAIRMEN. 

15 ‘‘(a) DESIGNATION.—(1)(A) The Chairman of the 

16 Defense Board shall be designated by the Secretary of De17 fense to serve for a term of five years. The Secretary shall 

18 select the Chairman from among sitting judges each of 

19 whom has had at least five years of service as a member 

20 of the Armed Services Board of Contract Appeals. 

21 ‘‘(B) The Chairman of the Civilian Board shall be 

22 designated by the Administrator for Federal Procurement 

23 Policy to serve for a term of five years. The Administrator 

24 shall select the Chairman from among sitting judges each 

25 of whom has had at least five years of service as a member 
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1 of an agency board of contract appeals other than the 

2 Armed Services Board of Contract Appeals. 

3 ‘‘(2) A Chairman of a Board may continue to serve 

4 after the expiration of the Chairman’s term until a suc5 cessor has taken office. A Chairman may be reappointed 

6 any number of times. 

7 ‘‘(b) RESPONSIBILITIES.—The Chairman of the De8 fense Board or the Civilian Board, as the case may be, 

9 shall be responsible on behalf of the Board for the execu10 tive and administrative operation of the Board, including 

11 functions of the Board with respect to the following: 

12 ‘‘(1) The selection, appointment, and fixing of 

13 the compensation of such personnel, pursuant to 

14 part III of title 5, United States Code, as the Chair15 man considers necessary or appropriate, including a 

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

17 and legal assistance for Board judges. 

18 ‘‘(2) The supervision of personnel employed by 

19 or assigned to the Board, and the distribution of 

20 work among such personnel. 

21 ‘‘(3) The operation of an Office of the Clerk of 

22 the Board, including the receipt of all filings made 

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

24 maintenance of all records of the Board.
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1 ‘‘(4) The prescription of such rules and regula2 tions as the Chairman considers necessary or appro3 priate for the administration and management of the 

4 Board. 

5 ‘‘(c) VICE CHAIRMEN.—The Chairman of the De6 fense Board or the Civilian Board, as the case may be, 

7 may designate up to two other Board judges as Vice 

8 Chairmen. The Vice Chairmen, in the order designated by 

9 the Chairman, shall act in the place and stead of the 

10 Chairman during the absence of the Chairman.’’. 

11 SEC. 224. RULEMAKING AUTHORITY. 

12 The Office of Federal Procurement Policy Act (41 

13 U.S.C. 401 et seq.), as amended by section 223, is further 

14 amended by adding at the end the following: 

15 ‘‘SEC. 204. RULEMAKING AUTHORITY. 

16 ‘‘Except as provided by section 252 of the Acquisition 

17 System Improvement Act, the Chairman of the Defense 

18 Board and the Chairman of the Civilian Board, in con19 sultation with the Administrator for Federal Procurement 

20 Policy, shall jointly issue and maintain—

21 ‘‘(1) such procedural rules and regulations as 

22 are necessary to the exercise of the functions of the 

23 Boards under section 211; and 

24 ‘‘(2) statements of policy of general applica25 bility with respect to such functions.’’. 
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1 SEC. 225. AUTHORIZATION OF APPROPRIATIONS. 

2 The Office of Federal Procurement Policy Act (41 

3 U.S.C. 401 et seq.), as amended by section 224, is further 

4 amended by adding at the end the following: 

5 ‘‘SEC. 205. AUTHORIZATION OF APPROPRIATIONS. 

6 ‘‘There are authorized to be appropriated for fiscal 

7 year 2005 and each succeeding fiscal year such sums as 

8 may be necessary to carry out the provisions of this title. 

9 Funds for the activities of each Board shall be separately 

10 appropriated for such purpose. Funds appropriate pursu11 ant to this section shall remain available until expended.’’. 

12 Subtitle C—Functions of Defense 

13 and Civilian Boards of Contract 

14 Appeals 

15 SEC. 231. CONTRACT DISPUTES. 

16 The Office of Federal Procurement Policy Act (41 

17 U.S.C. 401 et seq.), as amended by section 225, is further 

18 amended by adding at the end the following: 

19 ‘‘Subtitle B—Functions of the De20 fense and Civilian Boards of 

21 Contract Appeals 

22 ‘‘SEC. 211. CONTRACT DISPUTES. 

23 ‘‘The Defense Board shall have jurisdiction as pro24 vided by section 8(a)(1) of the Contract Disputes Act of 

25 1978 (41 U.S.C. 607(a)). The Civilian Board shall have 
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1 jurisdiction as provided by section 8(b)(1) of such Act (41 

2 U.S.C. 607(b)).’’. 

3 SEC. 232. ENHANCED ACCESS FOR SMALL BUSINESS. 

4 Section 9(a) of the Contract Disputes Act of 1978 

5 (41 U.S.C. 608) is amended by striking out the period 

6 at the end of the first sentence and inserting the following: 

7 ‘‘or, in the case of a small business concern (as defined 

8 in the Small Business Act and regulations under that 

9 Act), $150,000 or less.’’. 

10 SEC. 233. APPLICABILITY TO CERTAIN CONTRACTS. 

11 The Office of Federal Procurement Policy Act (41 

12 U.S.C. 401 et seq.), as amended by section 231, is further 

13 amended by adding at the end the following: 

14 ‘‘SEC. 212. APPLICABILITY TO CERTAIN CONTRACTS. 

15 ‘‘(a) CONTRACTS AT OR BELOW THE SIMPLIFIED AC16 QUISITION THRESHOLD.—Notwithstanding section 33 of 

17 this Act, the authority conferred on the Defense Board 

18 and the Civilian Board by this title is applicable to con19 tracts in amounts not greater than the simplified acquisi20 tion threshold. 

21 ‘‘(b) CONTRACTS FOR COMMERCIAL ITEMS.—Not22 withstanding section 34 of this Act, the authority con23 ferred on the Defense Board and the Civilian Board by 

24 this title is applicable to contracts for the procurement of 

25 commercial items.’’. 
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1 Subtitle D—Transfers and Transi2 tion, Savings, and Conforming 

3 Provisions 

4 SEC. 241. TRANSFER AND ALLOCATION OF APPROPRIA5 TIONS AND PERSONNEL. 

6 (a) TRANSFERS.—

7 (1) ARMED SERVICES BOARD OF CONTRACT AP8 PEALS.—The personnel employed in connection with, 

9 and the assets, liabilities, contracts, property, 

10 records, and unexpended balance of appropriations, 

11 authorizations, allocations, and other funds em12 ployed, held, used, arising from, available to, or to 

13 be made available in connection with the functions 

14 vested by law in the Armed Services Board of Con15 tract Appeals established pursuant to section 8 of 

16 the Contract Disputes Act of 1978 (41 U.S.C. 607) 

17 (as in effect on the day before the effective date de18 scribed in section 251), shall be transferred to the 

19 Department of Defense Board of Contract Appeals 

20 for appropriate allocation by the Chairman of that 

21 Board. 

22 (2) OTHER BOARDS OF CONTRACTS APPEALS.—

23 The personnel employed in connection with, and the 

24 assets, liabilities, contracts, property, records, and 

25 unexpended balance of appropriations, authoriza-
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1 tions, allocations, and other funds employed, held, 

2 used, arising from, available to, or to be made avail3 able in connection with the functions vested by law 

4 in the boards of contract appeals established pursu5 ant to section 8 of the Contract Disputes Act of 

6 1978 (41 U.S.C. 607) (as in effect on the day before 

7 the effective date described in section 251) other 

8 than the Armed Services Board of Contract Appeals, 

9 the board of contract appeals of the Tennessee Val10 ley Authority, and the Postal Service Board of Con11 tract Appeals shall be transferred to the Civilian 

12 Board of Contract Appeals for appropriate allocation 

13 by the Chairman of that Board. 

14 (b) EFFECT ON PERSONNEL.—Personnel transferred 

15 pursuant to this subtitle shall not be separated or reduced 

16 in compensation for one year after such transfer, except 

17 for cause. 

18 (c) REGULATIONS.—(1) The Department of Defense 

19 Board of Contract Appeals and the Civilian Board of Con20 tract Appeals shall each prescribe regulations for the re21 lease of competing employees in a reduction in force that 

22 gives due effect to—

23 (A) efficiency or performance ratings; 

24 (B) military preference; and 

25 (C) tenure of employment.
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1 (2) In prescribing the regulations, the Board con2 cerned shall provide for military preference in the same 

3 manner as set forth in subchapter I of chapter 35 of title 

4 5, United States Code. 

5 SEC. 242. TERMINATIONS AND SAVINGS PROVISIONS. 

6 (a) TERMINATION OF BOARDS OF CONTRACT AP7 PEALS.—Effective on the effective date described in sec8 tion 251, the boards of contract appeals established pursu9 ant to section 8 of the Contract Disputes Act of 1978 (41 

10 U.S.C. 607) (as in effect on the day before such effective 

11 date), other than the board of contract appeals of the Ten12 nessee Valley Authority and the Postal Service Board of 

13 Contract Appeals, shall terminate. 

14 (b) SAVINGS PROVISION FOR CONTRACT DISPUTE

15 MATTERS PENDING BEFORE BOARDS.—(1) This title and 

16 the amendments made by this title shall not affect any 

17 proceedings pending on the effective date described in sec18 tion 251 before any board of contract appeals terminated 

19 by subsection (a). 

20 (2) In the case of any such proceedings pending be21 fore the Armed Services Board of Contract Appeals, the 

22 proceedings shall be continued by the Department of De23 fense Board of Contract Appeals, and orders which were 

24 issued in any such proceeding by the Armed Services 

25 Board of Contract Appeals shall continue in effect until 
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1 modified, terminated, superseded, or revoked by the De2 partment of Defense Board of Contract Appeals, by a 

3 court of competent jurisdiction, or by operation of law. 

4 (3) In the case of any such proceedings pending be5 fore an agency board of contract appeals other than the 

6 Armed Services Board of Contract Appeals or the board 

7 of contract appeals of the Tennessee Valley Authority, the 

8 proceedings shall be continued by the Civilian Board of 

9 Contract Appeals, and orders which were issued in any 

10 such proceeding by the agency board shall continue in ef11 fect until modified, terminated, superseded, or revoked by 

12 the Civilian Board of Contract Appeals, by a court of com13 petent jurisdiction, or by operation of law. 

14 SEC. 243. CONTRACT DISPUTES AUTHORITY OF BOARDS. 

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

16 (41 U.S.C. 601) is amended—

17 (1) in paragraph (2), by striking out ‘‘, the 

18 United States Postal Service, and the Postal Rate 

19 Commission’’; 

20 (2) by redesignating paragraph (7) as para21 graph (9); 

22 (3) by amending paragraph (6) to read as fol23 lows: 

24 ‘‘(6) the terms ‘agency board’ or ‘agency board 

25 of contract appeals’ mean—
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1 ‘‘(1) the Department of Defense Board of 

2 Contract Appeals established under section 

3 8(a)(1) of this Act; 

4 ‘‘(2) the Civilian Board of Contract Ap5 peals established under section 8(b)(1) of this 

6 Act; 

7 ‘‘(3) the board of contract appeals of the 

8 Tennessee Valley Authority; or 

9 ‘‘(4) the Postal Service Board of Contract 

10 Appeals established under section 8(h) of this 

11 Act;’’; and 

12 (4) by inserting after paragraph (6) the fol13 lowing new paragraphs: 

14 ‘‘(7) the term ‘Defense Board’ means the De15 partment of Defense Board of Contract Appeals es16 tablished under section 8(a)(1) of this Act; 

17 ‘‘(8) the term ‘Civilian Board’ means the Civil18 ian Board of Contract Appeals established under 

19 section 8(b)(1) of this Act; and’’. 

20 (b) Section 8 of the Contract Disputes Act of 1978 

21 (41 U.S.C. 607), as amended by section 221, is further 

22 amended—

23 (1) by striking out subsection (c); 

24 (2) in subsection (d)—
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1 (A) by striking out the first sentence and 

2 inserting in lieu thereof the following: ‘‘The De3 fense Board shall have jurisdiction to decide 

4 any appeal from a decision of a contracting offi5 cer of the Department of Defense, the Depart6 ment of the Army, the Department of the Navy, 

7 the Department of the Air Force, or the Na8 tional Aeronautics and Space Administration 

9 relative to a contract made by that department 

10 or agency. The Civilian Board shall have juris11 diction to decide any appeal from a decision of 

12 a contracting officer of any executive agency 

13 (other than the Department of Defense, the De14 partment of the Army, the Department of the 

15 Navy, the Department of the Air Force, the 

16 National Aeronautics and Space Administra17 tion, the United States Postal Service, the Post18 al Rate Commission, or the Tennessee Valley 

19 Authority) relative to a contract made by that 

20 agency. Each other agency board shall have ju21 risdiction to decide any appeal from a decision 

22 of a contracting officer relative to a contract 

23 made by its agency.’’; and 
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1 (B) in the second sentence, by striking out 

2 ‘‘Claims Court’’ and inserting in lieu thereof 

3 ‘‘Court of Federal Claims’’; 

4 (3) by striking out subsection (h) and inserting 

5 in lieu thereof the following: 

6 ‘‘(h) There is established an agency board of contract 

7 appeals to be known as the ‘Postal Service Board of Con8 tract Appeals’. Such board shall have jurisdiction to decide 

9 any appeal from a decision of a contracting officer of the 

10 United States Postal Service or the Postal Rate Commis11 sion relative to a contract made by either agency. Such 

12 board shall consist of judges appointed by the Postmaster 

13 General who shall meet the qualifications of and serve in 

14 the same manner as judges of the Civilian Board of Con15 tract Appeals. This Act and title II of the Office of Fed16 eral Procurement Policy Act shall apply to contract dis17 putes before the Postal Service Board of Contract Appeals 

18 in the same manner as they apply to contract disputes 

19 before the Civilian Board.’’; and 

20 (4) by striking out subsection (i). 

21 SEC. 244. REFERENCES TO AGENCY BOARDS OF CONTRACT 

22 APPEALS. 

23 (a) DEFENSE BOARD.—Any reference to the Armed 

24 Services Board of Contract Appeals in any provision of 

25 law or in any rule, regulation, or other paper of the United
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1 States shall be treated as referring to the Department of 

2 Defense Board of Contract Appeals. 

3 (b) CIVILIAN BOARD.—Any reference to an agency 

4 board of contract appeals other than the Armed Services 

5 Board of Contract Appeals, the board of contract appeals 

6 of the Tennessee Valley Authority, or the Postal Service 

7 Board of Contract Appeals in any provision of law or in 

8 any rule, regulation, or other paper of the United States 

9 shall be treated as referring to the Civilian Board of Con10 tract Appeals. 

11 SEC. 245. CONFORMING AMENDMENTS. 

12 (a) TITLE 5.—Section 5372a(a)(1) of title 5, United 

13 States Code, is amended by inserting after ‘‘of 1978’’ the 

14 following: ‘‘or a member of the Department of Defense 

15 Board of Contract Appeals or the Civilian Board of Con16 tract Appeals appointed under section 202 of the Office 

17 of Federal Procurement Policy Act’’. 

18 (b) OFFICE OF FEDERAL PROCUREMENT POLICY

19 ACT.—The table of contents for the Office of Federal Pro20 curement Policy Act (contained in section 1(b)) is amend21 ed—

22 (1) by inserting the following before the item 

23 relating to section 1:

‘‘TITLE I—FEDERAL PROCUREMENT POLICY GENERALLY’’;

24 and

25 (2) by adding at the end the following:
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‘‘TITLE II—DISPUTE RESOLUTION 

‘‘Subtitle A—General Provisions 

‘‘201. Definitions. 

‘‘202. Membership. 

‘‘203. Chairmen. 

‘‘204. Rulemaking authority. 

‘‘205. Authorization of appropriations. 

‘‘Subtitle B—Functions of the Defense and Civilian Boards of Contract 

Appeals 

‘‘211. Contract disputes. 

‘‘212. Applicability to certain contracts.’’.

1 Subtitle E—Effective Date; Regula2 tions and Appointment of Chair3 men 

4 SEC. 251. 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. 252. REGULATIONS. 

10 (a) REGULATIONS REGARDING CLAIMS.—Not later 

11 than 1 year after the date of the enactment of this Act, 

12 the Chairman of the Armed Services Board of Contract 

13 Appeals and the Chairman of the General Services Board 

14 of Contract Appeals, in consultation with the Adminis15 trator for Federal Procurement Policy, shall jointly 

16 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 
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1 the Civilian Board of Contract Appeals under sec2 tions 211 of the Office of Federal Procurement Pol3 icy Act (as added by this title); and 

4 (2) statements of policy of general applicability 

5 with respect to such functions. 

6 (b) REGULATIONS REGARDING APPOINTMENT OF

7 JUDGES.—Not later than 1 year after the date of the en8 actment of this Act—

9 (1) the Chairman of the Armed Services Board 

10 of Contract Appeals shall issue rules governing the 

11 establishment and maintenance of a register of eligi12 ble applicants and the selection of judges for the De13 partment of Defense Board of Contract Appeals; 

14 and 

15 (2) the Administrator for Federal Procurement 

16 Policy shall issue rules governing the establishment 

17 and maintenance of a register of eligible applicants 

18 and the selection of judges for the Civilian Board of 

19 Contract Appeals. 

20 SEC. 253. APPOINTMENT OF CHAIRMEN OF DEFENSE 

21 BOARD AND CIVILIAN BOARD. 

22 Notwithstanding section 251, not later than 1 year 

23 after the date of the enactment of this Act—
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1 (1) the Secretary of Defense shall appoint the 

2 Chairman of the Department of Defense Board of 

3 Contract Appeals; and 

4 (2) the Administrator for Federal Procurement 

5 Policy shall appoint the Chairman of the Civilian 

6 Board of Contract Appeals.

Æ