IB
104TH CONGRESS
1ST SESSION
H. R. 1670
[Report No. 104–222, Part I]
To revise and streamline the acquisition laws of the Federal Government,
to reorganize the mechanisms for resolving Federal procurement disputes,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 18, 1995
Mr. CLINGER (for himself, Mr. SPENCE, Mr. HORN, Mr. ZELIFF, Mr. BLUTE,
Mr. DAVIS, Mr. SCARBOROUGH, Mr. LEWIS of Kentucky, Mr. TATE, Mr.
TIAHRT, Mr. FLANAGAN, Mr. BASS, and Mr. CHAMBLISS) introduced the
following bill; which was referred to the Committee on Government Re-
form and Oversight, and in addition to the Committees on National Secu-
rity and the Judiciary, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall within
the jurisdiction of the committee concerned
AUGUST 1, 1995
Additional sponsors: Mr. WATTS of Oklahoma, Mr. MCKEON, Mr. MORAN,
and Mr. FOX of Pennsylvania
AUGUST 1, 1995
Reported from the Committee on Government Reform and Oversight with an
amendment
[Strike out all after the enacting clause and insert the part printed in italic]
AUGUST 1, 1995
Referral to the Committees on National Security and the Judiciary extended
for a period ending not later than August 2, 1995
AUGUST 2, 1995
Referral to the Committees on National Security and the Judiciary extended
for a period ending not later than October 2, 1995
[For text of introduced bill, see copy of bill as introduced on May 18, 1995]
A BILL
To revise and streamline the acquisition laws of the Federal
Government, to reorganize the mechanisms for resolving
Federal procurement disputes, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Federal Acquisition
Reform Act of 1995’’.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I—COMPETITION
Sec. 101. Improvement of competition requirements.
Sec. 102. Definitions relating to competition requirements.
Sec. 103. Contract solicitation amendments.
Sec. 104. Preaward debriefings.
Sec. 105. Contract types.
Sec. 106. Contractor performance.
TITLE II—COMMERCIAL ITEMS
Sec. 201. Commercial item exception to requirement for cost or pricing data and
information limitations.
Sec. 202. Application of simplified procedures to commercial items.
Sec. 203. Amendment to definition of commercial items.
Sec. 204. Inapplicability of cost accounting standards to contracts and sub-
contracts for commercial items.
TITLE III—ADDITIONAL REFORM PROVISIONS
Sec. 301. Government reliance on the private sector.
Sec. 302. Elimination of certain certification requirements.
Sec. 303. Amendment to commencement and expiration of authority to conduct
certain tests of procurement procedures.
Sec. 304. International competitiveness.
Sec. 305. Procurement integrity.
Sec. 306. Further acquisition streamlining provisions.
Sec. 307. Justification of major defense acquisition programs not meeting goals.
Sec. 308. Enhanced performance incentives for acquisition workforce.
Sec. 309. Results oriented acquisition program cycle.
Sec. 310. Rapid contracting goal.
Sec. 311. Encouragement of multiyear contracting.
Sec. 312. Contractor share of gains and losses from cost, schedule, and perform-
ance experience.
Sec. 313. Phase funding of defense acquisition programs.
Sec. 314. Improved Department of Defense contract payment procedures.
Sec. 315. Consideration of past performance in assignment to acquisition posi-
tions.
Sec. 316. Additional Department of Defense pilot programs.
Sec. 317. Value engineering for Federal agencies.
Sec. 318. Acquisition workforce.
TITLE IV—STREAMLINING OF DISPUTE RESOLUTION
Subtitle A—General Provisions
Sec. 401. Definitions.
Subtitle B—Establishment of Civilian and Defense Boards of Contract Appeals
Sec. 411. Establishment.
Sec. 412. Membership.
Sec. 413. Chairman.
Sec. 414. Rulemaking authority.
Sec. 415. Authorization of appropriations.
Subtitle C—Functions of Defense and Civilian Boards of Contract Appeals
Sec. 421. Alternative dispute resolution services.
Sec. 422. Alternative dispute resolution of disputes and protests submitted to
boards
Sec. 423. Contract disputes.
Sec. 424. Protests.
Sec. 425. Applicability to certain contracts.
Subtitle D—Repeal of Other Statutes Authorizing Administrative Protests
Sec. 431. Repeals.
Subtitle E—Transfers and Transitional, Savings, and Conforming Provisions
Sec. 441. Transfer and allocation of appropriations and personnel.
Sec. 442. Terminations and savings provisions.
Sec. 443. Contract disputes authority of boards.
Sec. 444. References to agency boards of contract appeals.
Sec. 445. Conforming amendments.
Subtitle F—Effective Date; Interim Appointment and Rules
Sec. 451. Effective date.
Sec. 452. Interim appointment.
Sec. 453. Interim rules.
TITLE V—EFFECTIVE DATES AND IMPLEMENTATION
Sec. 501. Effective date and applicability.
Sec. 502. Implementing regulations.
TITLE I—COMPETITION
SEC. 
101. 
IMPROVEMENT 
OF 
COMPETITION 
REQUIRE-
MENTS.
(a) ARMED SERVICES ACQUISITIONS.—(1) Section
2304 of title 10, United States Code, is amended to read
as follows:
‘‘§ 2304. Contracts: competition requirements
‘‘(a) COMPETITION.—(1) Except as provided in sub-
sections (b), (c), and (e) and except in the case of procure-
ment procedures otherwise expressly authorized by statute,
the head of an agency in conducting a procurement for
property or services—
‘‘(A) shall obtain full and open competition—
‘‘(i) that provides open access, and
‘‘(ii) that is consistent with the need to effi-
ciently fulfill the Government’s requirements,
through the use of competitive procedures in accord-
ance with this chapter and the Federal Acquisition
Regulation; and
‘‘(B) shall use the competitive procedure or com-
bination of competitive procedures that is best suited
under the circumstances of the procurement.
‘‘(2) In determining the competitive procedure appro-
priate under the circumstances, the head of an agency—
‘‘(A) shall solicit sealed bids if—
‘‘(i) time permits the solicitation, submis-
sion, and evaluation of sealed bids;
‘‘(ii) the award will be made on the basis
of price and other price-related factors;
‘‘(iii) it is not necessary to conduct discus-
sions with the responding sources about their
bids; and
‘‘(iv) there is a reasonable expectation of re-
ceiving more than one sealed bid; and
‘‘(B) shall request competitive proposals if sealed
bids are not appropriate under clause (A).
‘‘(b) EXCLUSION OF PARTICULAR SOURCE.—The head
of an agency may provide for the procurement of property
or services covered by this chapter using competitive proce-
dures but excluding a particular source in order to establish
or maintain an alternative source or sources of supply for
that property or service. The Federal Acquisition Regula-
tion shall set forth the circumstances under which a par-
ticular source may be excluded pursuant to this subsection.
‘‘(c) EXCLUSION OF CONCERNS OTHER THAN SMALL
BUSINESS CONCERNS AND CERTAIN OTHER ENTITIES.—
The head of an agency may provide for the procurement
of property or services covered by this section using com-
petitive procedures, but excluding concerns other than small
business concerns in furtherance of sections 9 and 15 of the
Small Business Act (15 U.S.C. 638, 644) and concerns other
than small business concerns, historically Black colleges and
universities, and minority institutions in furtherance of
section 2323 of this title.
‘‘(d) PROCEDURES OTHER THAN COMPETITIVE PRO-
CEDURES.—(1) Procedures other than competitive proce-
dures may be used for purchasing property and services
only when the use of competitive procedures is not feasible
or appropriate. Standards for determining when the use of
competitive procedures is not feasible or appropriate shall
be set forth in the Federal Acquisition Regulation. Each
procurement using procedures other than competitive proce-
dures (other than a procurement for commercial items using
simplified procedures or a procurement in an amount not
greater than the simplified acquisition threshold) shall be
justified in writing and approved in accordance with the
Federal Acquisition Regulation.
‘‘(2) In the case of a procurement using procedures
that preclude all but one source from responding (herein-
after in this subsection referred to as a ‘sole source procure-
ment’), the Federal Acquisition Regulation shall provide for
justification and approval under paragraph (1) of such pro-
curement under standards that set forth limited cir-
cumstances for such sole source procurements, including cir-
cumstances when—
‘‘(A) the property or services needed by the agen-
cy are available from only one responsible source and
no other type of property or services will satisfy the
needs of the agency;
‘‘(B) the agency’s need for the property or serv-
ices is of such an unusual and compelling urgency
that the United States would be seriously injured un-
less the agency is permitted to award the contract for
the property or services to a particular source;
‘‘(C) it is necessary to award the contract to a
particular source in order (i) to maintain a facility,
producer, manufacturer, or other supplier available
for furnishing property or services in case of a na-
tional emergency or to achieve industrial mobiliza-
tion, (ii) to establish or maintain an essential engi-
neering, research, or development capability to be pro-
vided by an educational or other nonprofit institution
or a federally funded research and development cen-
ter, or (iii) to procure the services of an expert for
use, in any litigation or dispute (including any rea-
sonably foreseeable litigation or dispute) involving the
Federal Government, in any trial, hearing, or pro-
ceeding before any court, administrative tribunal, or
agency, or in any part of an alternative dispute reso-
lution process, whether or not the expert is expected
to testify;
‘‘(D) the terms of an international agreement or
a treaty between the United States and a foreign gov-
ernment or international organization, or the written
directions of a foreign government reimbursing the
agency for the cost of the procurement of the property
or services for such government, have the effect of re-
quiring the award of the contract for the property or
services to a particular source;
‘‘(E) subject to section 2304f, a statute expressly
authorizes or requires that the procurement be made
through another agency or from a specified source, or
the agency’s need is for a brand-name commercial
item for authorized resale;
‘‘(F) the disclosure of the agency’s needs would
compromise the national security unless the agency is
permitted to award the contract for the property or
services needed by the agency to a particular source;
or
‘‘(G) the head of the agency—
‘‘(i) determines that it is necessary in the
public interest to award the contract for the
property or services needed by the agency to a
particular source in the particular procurement
concerned, and
‘‘(ii) notifies the Congress in writing of such
determination not less than 30 days before the
award of the contract.
‘‘(3) The authority of the head of an agency under
paragraph (2)(G) may not be delegated.
‘‘(e) SIMPLIFIED PROCEDURES.—(1) In order to pro-
mote efficiency and economy in contracting and to avoid
unnecessary burdens for agencies and contractors, the Fed-
eral Acquisition Regulation shall provide for special sim-
plified procedures for purchases of property and services for
amounts not greater than the simplified acquisition thresh-
old.
‘‘(2) A proposed purchase or contract for an amount
above the simplified acquisition threshold may not be di-
vided into several purchases or contracts for lesser amounts
in order to use the simplified procedures required by para-
graph (1).
‘‘(3) In using simplified procedures, the head of an
agency shall ensure that competition is obtained to the max-
imum extent practicable consistent with the particular Gov-
ernment requirement.
‘‘(f) CERTAIN CONTRACTS.—For the purposes of the
following laws, purchases or contracts awarded after using
procedures other than sealed-bid procedures shall be treated
as if they were made with sealed-bid procedures:
‘‘(1) The Walsh-Healey Act (41 U.S.C. 35–45).
‘‘(2) The Act entitled ‘An Act relating to the rate
of wages for laborers and mechanics employed on pub-
lic buildings of the United States and the District of
Columbia by contractors and subcontractors, and for
other purposes’, approved March 3, 1931 (commonly
referred to as the ‘Davis-Bacon Act’) (40 U.S.C.
276a—276a–5).’’.
(2) Chapter 137 of title 10, United States Code, is
amended by inserting before section 2305 a new section—
(A) the designation and heading for which is as
follows:
‘‘§ 2304f. Merit-based selection’’;
and
(B) the text of which consists of subsection (j) of
section 2304 of such title, as in effect on the day be-
fore the date of the enactment of this Act, modified—
(i) by striking out the subsection designa-
tion;
(ii) in paragraphs (2)(A), (3), and (4), by
striking out ‘‘subsection’’ and inserting in lieu
thereof ‘‘section’’ each place it appears;
(iii) in paragraph (2)(C), by striking out
‘‘paragraph (1)’’ and inserting in lieu thereof
‘‘subsection (a)’’;
(iv) by redesignating paragraphs (1), (2),
(3), and (4) as subsections (a), (b), (c), and (d),
respectively; and
(v) in subsection (b) (as so redesignated), by
redesignating subparagraphs (A), (B), and (C)
as paragraphs (1), (2), and (3), respectively.
(3) The table of sections at the beginning of such chap-
ter is amended by inserting before the item relating section
2305 the following new item:
‘‘2304 f. Merit-based selection.’’.
(b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section 303
of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 253) is amended to read as follows:
‘‘SEC. 303. CONTRACTS: COMPETITION REQUIREMENTS.
‘‘(a) COMPETITION.—(1) Except as provided in sub-
sections (b), (c), and (e) and except in the case of procure-
ment procedures otherwise expressly authorized by statute,
an executive agency in conducting a procurement for prop-
erty or services—
‘‘(A) shall obtain full and open competition—
‘‘(i) that provides open access, and
‘‘(ii) that is consistent with the need to effi-
ciently fulfill the Government’s requirements,
through the use of competitive procedures in accord-
ance with this chapter and the Federal Acquisition
Regulation; and
‘‘(B) shall use the competitive procedure or com-
bination of competitive procedures that is best suited
under the circumstances of the procurement.
‘‘(2) In determining the competitive procedure appro-
priate under the circumstances, an executive agency—
‘‘(A) shall solicit sealed bids if—
‘‘(i) time permits the solicitation, submis-
sion, and evaluation of sealed bids;
‘‘(ii) the award will be made on the basis
of price and other price-related factors;
‘‘(iii) it is not necessary to conduct discus-
sions with the responding sources about their
bids; and
‘‘(iv) there is a reasonable expectation of re-
ceiving more than one sealed bid; and
‘‘(B) shall request competitive proposals if sealed
bids are not appropriate under clause (A).
‘‘(b) EXCLUSION OF PARTICULAR SOURCE.—An execu-
tive agency may provide for the procurement of property
or services covered by this chapter using competitive proce-
dures but excluding a particular source in order to establish
or maintain an alternative source or sources of supply for
that property or service. The Federal Acquisition Regula-
tion shall set forth the circumstances under which a par-
ticular source may be excluded pursuant to this subsection.
‘‘(c) EXCLUSION OF CONCERNS OTHER THAN SMALL
BUSINESS CONCERNS AND CERTAIN OTHER ENTITIES.—An
executive agency may provide for the procurement of prop-
erty or services covered by this section using competitive
procedures, but excluding concerns other than small busi-
ness concerns in furtherance of sections 9 and 15 of the
Small Business Act (15 U.S.C. 638, 644) and concerns other
than small business concerns, historically Black colleges and
universities, and minority institutions in furtherance of
section 7102 of the Federal Acquisition Streamlining Act
of 1994 (15 U.S.C. 644 note).
‘‘(d) PROCEDURES OTHER THAN COMPETITIVE PRO-
CEDURES.—(1) Procedures other than competitive proce-
dures may be used for purchasing property and services
only when the use of competitive procedures is not feasible
or appropriate. Standards for determining when the use of
competitive procedures is not feasible or appropriate shall
be set forth in the Federal Acquisition Regulation. Each
procurement using procedures other than competitive proce-
dures (other than a procurement for commercial items using
simplified procedures or a procurement in an amount not
greater than the simplified acquisition threshold) shall be
justified in writing and approved in accordance with the
Federal Acquisition Regulation.
‘‘(2) In the case of a procurement using procedures
that preclude all but one source from responding (herein-
after in this subsection referred to as a ‘sole source procure-
ment’), the Federal Acquisition Regulation shall provide for
justification and approval under paragraph (1) of such pro-
curement under standards that set forth limited cir-
cumstances for such sole source procurements, including cir-
cumstances when—
‘‘(A) the property or services needed by the exec-
utive agency are available from only one responsible
source and no other type of property or services will
satisfy the needs of the executive agency;
‘‘(B) the executive agency’s need for the property
or services is of such an unusual and compelling ur-
gency that the United States would be seriously in-
jured unless the executive agency is permitted to
award the contract for the property or services to a
particular source;
‘‘(C) it is necessary to award the contract to a
particular source in order (i) to maintain a facility,
producer, manufacturer, or other supplier available
for furnishing property or services in case of a na-
tional emergency or to achieve industrial mobiliza-
tion, (ii) to establish or maintain an essential engi-
neering, research, or development capability to be pro-
vided by an educational or other nonprofit institution
or a federally funded research and development cen-
ter, or (iii) to procure the services of an expert for
use, in any litigation or dispute (including any rea-
sonably foreseeable litigation or dispute) involving the
Federal Government, in any trial, hearing, or pro-
ceeding before any court, administrative tribunal, or
agency, or in any part of an alternative dispute reso-
lution process, whether or not the expert is expected
to testify;
‘‘(D) the terms of an international agreement or
treaty between the United States Government and a
foreign government or international organization, or
the written directions of a foreign government reim-
bursing the executive agency for the cost of the pro-
curement of the property or services for such govern-
ment, have the effect of requiring the award of the
contract for the property or services to a particular
source;
‘‘(E) subject to section 303M, a statute expressly
authorizes or requires that the procurement be made
through another executive agency or from a specified
source, or the agency’s need is for a brand-name com-
mercial item for authorized resale;
‘‘(F) the disclosure of the executive agency’s
needs would compromise the national security unless
the agency is permitted to award the contract for the
property or services needed by the agency to a par-
ticular source; or
‘‘(G) the head of the executive agency—
‘‘(i) determines that it is necessary in the
public interest to award the contract for the
property or services needed by the agency to a
particular source in the particular procurement
concerned, and
‘‘(ii) notifies the Congress in writing of such
determination not less than 30 days before the
award of the contract.
‘‘(3) The authority of the head of an executive agency
under paragraph (2)(G) may not be delegated.
‘‘(e) SIMPLIFIED PROCEDURES.—(1) In order to pro-
mote efficiency and economy in contracting and to avoid
unnecessary burdens for agencies and contractors, the Fed-
eral Acquisition Regulation shall provide for special sim-
plified procedures for purchases of property and services for
amounts not greater than the simplified acquisition thresh-
old.
‘‘(2)(A) The Administrator of General Services shall
prescribe regulations that provide special simplified proce-
dures for acquisitions of leasehold interests in real property
at rental rates that do not exceed the simplified acquisition
threshold.
‘‘(B) For purposes of subparagraph (A), the rental rate
or rates under a multiyear lease do not exceed the simplified
acquisition threshold if the average annual amount of the
rent payable for the period of the lease does not exceed the
simplified acquisition threshold.
‘‘(3) A proposed purchase or contract or for an amount
above the simplified acquisition threshold may not be di-
vided into several purchases or contracts for lesser amounts
in order to use the simplified procedures required by para-
graph (1).
‘‘(4) In using simplified procedures, an executive agen-
cy shall ensure that competition is obtained to the maxi-
mum extent practicable consistent with the particular Gov-
ernment requirement.’’.
(2) Title III of the Federal Property and Administra-
tive Services Act of 1949 (41 U.S.C. 251 et seq.) is amended
by inserting after section 303L a new section—
(A) the designation and heading for which is as
follows:
‘‘SEC. 303M. MERIT-BASED SELECTION.’’;
and
(B) the text of which consists of subsection (h) of
section 303 of such Act, as in effect on the day before
the date of the enactment of this Act, modified—
(i) by striking out the subsection designa-
tion;
(ii) in paragraphs (2)(A), (3), and (4), by
striking out ‘‘subsection’’ and inserting in lieu
thereof ‘‘section’’ each place it appears;
(iii) in paragraph (2)(C), by striking out
‘‘paragraph (1)’’ and inserting in lieu thereof
‘‘subsection (a)’’;
(iv) by redesignating paragraphs (1), (2),
(3), and (4) as subsections (a), (b), (c), and (d),
respectively; and
(v) in subsection (b) (as so redesignated), by
redesignating subparagraphs (A), (B), and (C)
as paragraphs (1), (2), and (3), respectively.
(3) The table of contents for the Federal Property and
Administrative Services Act of 1949 (contained in section
1(b)) is amended—
(A) by striking out the item relating to section
303 and inserting in lieu thereof the following:
‘‘Sec. 303. Contracts: competition requirements.’’;
and
(B) by inserting after the item relating to section
303L the following new item:
‘‘Sec. 303M. Merit-based selection.’’.
(c) REVISIONS
TO PROCUREMENT NOTICE PROVI-
SIONS.—Section 18 of the Office of Federal Procurement
Policy Act (41 U.S.C. 416) is amended—
(1) in subsection (a)—
(A) in subparagraph (B) of paragraph
(1)—
(i) by striking out ‘‘subsection (f)—’’
and all that follows through the end of the
subparagraph and inserting in lieu thereof
‘‘subsection (b); and’’; and
(ii) by inserting after ‘‘property or
services’’ the following: ‘‘for a price expected
to exceed $10,000 but not to exceed
$25,000’’;
(B) by striking out paragraph (4); and
(C) by redesignating paragraphs (5) and
(6) as paragraphs (4) and (5), respectively; and
(2) in subsection (b)—
(A) by amending subparagraph (B) of
paragraph (2) to read as follows:
‘‘(B) state whether the acquisition is to be
conducted pursuant to a contractor verification
system (as provided pursuant to section 35) or
whether the offeror, its product, or its service oth-
erwise must meet a qualification requirement in
order to be eligible for award and, if so, identify
the criteria to be used in determining such eligi-
bility;’’; and
(B) by amending paragraph (4) to read as
follows:
‘‘(4) a statement that all responsible sources may
submit 
for 
consideration 
a 
bid, 
proposal, 
or
quotation;’’.
(d) EXECUTIVE AGENCY RESPONSIBILITIES.—(1) Sec-
tion 16 of the Office of Federal Procurement Policy Act (41
U.S.C. 414) is amended—
(A) by striking out ‘‘achieve’’ in the matter pre-
ceding paragraph (1) and inserting in lieu thereof
‘‘promote’’; and
(B) by amending paragraph (1) to read as fol-
lows:
‘‘(1) to implement competition that provides
open access for responsible sources in the procurement
of property or services by the executive agency by es-
tablishing policies, procedures, and practices that are
consistent with the need to efficiently fulfill the Gov-
ernment’s requirements;’’.
(2) Section 20 of such Act (41 U.S.C. 418) is amended
in subsection (a)(2)(A) by striking out ‘‘serving in a posi-
tion authorized for such executive agency on the date of en-
actment of the Competition in Contracting Act of 1984’’.
SEC. 102. DEFINITIONS RELATING TO COMPETITION RE-
QUIREMENTS.
(a) DEFINITION.—Paragraphs (5) and (6) of section
4 of the Office of Federal Procurement Policy Act (41
U.S.C. 403) are amended to read as follows:
‘‘(5) The term ‘competitive procedures’ means
procedures under which an agency enters into a con-
tract pursuant to full and open competition that pro-
vides open access and is consistent with the need to
efficiently fulfill the Government’s requirements.
‘‘(6) The term ‘open access’, when used with re-
spect to a procurement, means that all responsible
sources are permitted to submit sealed bids or com-
petitive proposals on the procurement.’’.
(b) CONFORMING AMENDMENTS.—
(1) OFFICE OF FEDERAL PROCUREMENT POLICY
ACT.—Section 20 of the Office of Federal Procurement
Policy Act is amended—
(A) 
in 
subsection 
(b)(1), 
subsection
(b)(3)(A), and subsection (c), by inserting after
‘‘full and open competition’’ the following: ‘‘that
provides open access and is consistent with the
need to efficiently fulfill the Government’s re-
quirements’’ each place it appears; and
(B) in subsection (b)(4)(C), by striking out
‘‘to full and open competition that remain’’ and
inserting in lieu thereof ‘‘that remain to achiev-
ing full and open competition that provides open
access and is consistent with the need to effi-
ciently fulfill the Government’s requirements’’.
(2) TITLE 10.—Title 10, United States Code, is
amended—
(A) in section 2302(2), by striking out the
first sentence and inserting in lieu thereof the
following: ‘‘The term ‘competitive procedures’
means procedures under which an agency enters
into a contract pursuant to full and open com-
petition that provides open access and is consist-
ent with the need to efficiently fulfill the Govern-
ment’s requirements.’’;
(B) in section 2302(3)(D), by striking out
‘‘full and open competition’’ and inserting in
lieu thereof ‘‘open access’’;
(C) in section 2323(e)(3), by striking out
‘‘less than full and open’’ and inserting in lieu
thereof ‘‘procedures other than’’; and
(D) in section 2323(i)(3)(A), by striking out
‘‘full and open’’.
(3) FEDERAL
PROPERTY
AND
ADMINISTRATIVE
SERVICES ACT.—Title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251
et seq.) is amended—
(A) in section 309(b), by striking out the
first sentence and inserting in lieu thereof the
following: ‘‘The term ‘competitive procedures’
means procedures under which an executive
agency enters into a contract pursuant to full
and open competition that provides open access
and is consistent with the need to efficiently ful-
fill the Government’s requirements.’’;
(B) in section 309(c)(4), by striking out
‘‘full and open competition’’ and inserting in
lieu thereof ‘‘open access’’; and
(C) in section 304B(a)(2)(B), by striking
out ‘‘encouraging full and open competition or’’.
(4) OTHER LAWS.—Section 7102 of the Federal
Acquisition Streamlining Act of 1994 (108 Stat.
3367; 15 U.S.C. 644 note) is amended in subsection
(a)(1)(A) by striking out ‘‘less than full and open
competition’’ and inserting in lieu thereof ‘‘procedures
other than competitive procedures’’.
SEC. 103. CONTRACT SOLICITATION AMENDMENTS.
(a) ARMED SERVICES ACQUISITIONS.—Section 2305 of
title 10, United States Code, is amended—
(1) in subsection (a)(1)—
(A) by striking out subparagraph (A) and
inserting in lieu thereof the following: ‘‘(A) In
preparing for the procurement of property or
services, the head of an agency shall use advance
procurement planning and market research.’’;
(B) by striking out subparagraph (B); and
(C) by redesignating subparagraph (C) as
subparagraph (B) and in that subparagraph by
striking out ‘‘For the purposes of subparagraphs
(A) and (B), the’’ and inserting in lieu thereof
‘‘Each solicitation under this chapter shall in-
clude specifications that include restrictive provi-
sions or conditions only to the extent necessary
to satisfy the needs of the agency or as author-
ized by law. The’’;
(2) in subsection (a)(2), by inserting after
‘‘(other than for’’ the following: ‘‘a procurement for
commercial items using simplified procedures or’’;
and
(3) in subsection (b)(4)(A)(i), by striking out
‘‘all’’ and inserting in lieu thereof ‘‘the’’.
(b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section
303A of the Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 253a) is amended—
(A) in subsection (a)—
(i) by striking out paragraph (1) and in-
serting in lieu thereof the following: ‘‘(1) In pre-
paring for the procurement of property or serv-
ices, an executive agency shall use advance pro-
curement planning and market research.’’;
(ii) by striking out paragraph (2); and
(iii) by redesignating paragraph (3) as
paragraph (2) and in that paragraph by strik-
ing out ‘‘For the purposes of paragraphs (1) and
(2), the’’ and inserting in lieu there of ‘‘Each so-
licitation under this title shall include specifica-
tions that include restrictive provisions or condi-
tions only to the extent necessary to satisfy the
needs of the executive agency or as authorized by
law. The’’; and
(B) in subsection (b), by inserting after ‘‘(other
than for’’ the following: ‘‘a procurement for commer-
cial items using simplified procedures or’’.
(2) Section 303B(d)(1)(A) of such Act (41 U.S.C.
253b) is amended by striking out ‘‘all’’ and inserting in
lieu thereof ‘‘the’’.
SEC. 104. PREAWARD DEBRIEFINGS.
(a) 
ARMED
SERVICES
ACQUISITIONS.—Section
2305(b) of title 10, United States Code, is amended—
(1) by striking out subparagraph (F) of para-
graph (5);
(2) by redesignating paragraph (6) as para-
graph (8); and
(3) by inserting after paragraph (5) the follow-
ing new paragraphs:
‘‘(6)(A) When the contracting officer excludes an
offeror submitting a competitive proposal from the competi-
tive range (or otherwise excludes such an offeror from fur-
ther consideration prior to the final source selection deci-
sion), the excluded offeror may request in writing, within
three days after the date on which the excluded offeror re-
ceives notice of its exclusion, a debriefing prior to award.
The contracting officer shall make every effort to debrief the
unsuccessful offeror as soon as practicable and may refuse
the request for a debriefing if it is not in the best interests
of the Government to conduct a debriefing at that time.
‘‘(B) The contracting officer is required to debrief an
excluded offeror in accordance with paragraph (5) of this
section only if that offeror requested and was refused a
preaward debriefing under subparagraph (A) of this para-
graph.
‘‘(C) The debriefing conducted under this subsection
shall include—
‘‘(i) the executive agency’s evaluation of the sig-
nificant elements in the offeror’s offer;
‘‘(ii) a summary of the rationale for the offeror’s
exclusion; and
‘‘(iii) reasonable responses to relevant questions
posed by the debriefed offeror as to whether source se-
lection procedures set forth in the solicitation, appli-
cable regulations, and other applicable authorities
were followed by the executive agency.
‘‘(D) The debriefing conducted pursuant to this sub-
section may not disclose the number or identity of other
offerors and shall not disclose information about the con-
tent, ranking, or evaluation of other offerors’ proposals.
‘‘(7) The contracting officer shall include a summary
of any debriefing conducted under paragraph (5) or (6) in
the contract file.’’.
(b) CIVILIAN AGENCY ACQUISITIONS.—Section 303B of
the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 253b) is amended—
(1) by striking out paragraph (6) of subsection
(e);
(2) by redesignating subsections (f), (g), (h), and
(i) as subsections (h), (i), (j), and (k), respectively;
and
(3) by inserting after subsection (e) the following
new subsections:
‘‘(f)(1) When the contracting officer excludes an offeror
submitting a competitive proposal from the competitive
range (or otherwise excludes such an offeror from further
consideration prior to the final source selection decision),
the excluded offeror may request in writing, within 3 days
after the date on which the excluded offeror receives notice
of its exclusion, a debriefing prior to award. The contract-
ing officer shall make every effort to debrief the unsuccessful
offeror as soon as practicable and may refuse the request
for a debriefing if it is not in the best interests of the Gov-
ernment to conduct a debriefing at that time.
‘‘(2) The contracting officer is required to debrief an
excluded offeror in accordance with subsection (e) of this
section only if that offeror requested and was refused a
preaward debriefing under paragraph (1) of this subsection.
‘‘(3) The debriefing conducted under this subsection
shall include—
‘‘(A) the executive agency’s evaluation of the sig-
nificant elements in the offeror’s offer;
‘‘(B) a summary of the rationale for the offeror’s
exclusion; and
‘‘(C) reasonable responses to relevant questions
posed by the debriefed offeror as to whether source se-
lection procedures set forth in the solicitation, appli-
cable regulations, and other applicable authorities
were followed by the executive agency.
‘‘(4) The debriefing conducted pursuant to this sub-
section may not disclose the number or identity of other
offerors and shall not disclose information about the con-
tent, ranking, or evaluation of other offerors’ proposals.
‘‘(g) The contracting officer shall include a summary
of any debriefing conducted under subsection (e) or (f) in
the contract file.’’.
SEC. 105. CONTRACT TYPES.
(a) ARMED SERVICES ACQUISITIONS.—(1) Section
2306 of title 10, United States Code, is amended—
(A) by inserting before the period at the end of
subsection (a) the following: ‘‘, based on market condi-
tions, established commercial practice (if any) for the
product or service being acquired, and sound business
judgment’’;
(B) by striking out subsections (b), (d), (e), (f),
and (h); and
(C) by redesignating subsection (g) as subsection
(b).
(2) The heading of such section is amended to read
as follows:
‘‘§ 2306. Contract types’’.
(3) The item relating to section 2306 in the table of
sections at the beginning of chapter 137 of such title is
amended to read as follows:
‘‘2306. Contract types.’’.
(b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section 304
of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 254) is amended—
(A) by inserting before the period at the end of
the first sentence of subsection (a) the following: ‘‘,
based on market conditions, established commercial
practice (if any) for the product or service being ac-
quired, and sound business judgment’’;
(B) by striking out ‘‘Every contract awarded’’ in
the second sentence of subsection (a) and all that fol-
lows through the end of the subsection; and
(C) in subsection (b), by striking out ‘‘used,’’ in
the first sentence and all that follows through the end
of the subsection and inserting in lieu thereof ‘‘used.’’.
(2) The heading of such section is amended to read
as follows:
‘‘SEC. 304. CONTRACT TYPES.’’.
(3) The item relating to section 304 in the table of
contents for such Act (contained in section 1(b)) is amended
to read as follows:
‘‘Sec. 304. Contract types.’’.
(c) CONFORMING REPEALS.—(1) Sections 4540, 7212,
and 9540 of title 10, United States Code, are repealed.
(2) The table of sections at the beginning of chapter
433 of such title is amended by striking out the item relat-
ing to section 4540.
(3) The table of sections at the beginning of chapter
631 of such title is amended by striking out the item relat-
ing to section 7212.
(4) The table of sections at the beginning of chapter
933 of such title is amended by striking out the item relat-
ing to section 9540.
(d) CIVIL WORKS AUTHORITY.—(1) Part IV of subtitle
A of title 10, United States Code, is amended—
(A) by transferring section 2855 to the end of
chapter 137; and
(B) by striking out the section heading and sub-
section (a) of such section and inserting in lieu there-
of the following:
‘‘§ 2332. Contracts for architectural and engineering
services
‘‘(a) The Secretary of Defense and the Secretaries of
the military departments may enter into contracts for ar-
chitectural and engineering services in connection with a
military construction or family housing project or for other
Department of Defense or military department purposes.
Such contracts shall be awarded in accordance with the
Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.).’’.
(2) The table of sections at the beginning of chapter
137 of such title is amended by adding at the end the follow-
ing new item:
‘‘2332. Contracts for architectural and engineering services.’’.
(3) The table of sections at the beginning of chapter
169 of such title is amended by striking out the item relat-
ing to section 2855.
SEC. 106. CONTRACTOR PERFORMANCE.
(a) REQUIREMENT FOR SYSTEM.—The Office of Fed-
eral Procurement Policy Act (41 U.S.C. 401 et seq.) is
amended by adding at the end the following new section:
‘‘SEC. 35. CONTRACTOR PERFORMANCE.
‘‘(a) VERIFICATION SYSTEM.—
‘‘(1) REQUIREMENT.—The Federal Acquisition
Regulation shall provide for a contractor verification
system in accordance with this section.
‘‘(2) PROCEDURES.—The Federal Acquisition
Regulation shall provide procedures for the head of an
executive agency to follow in order to verify a con-
tractor as eligible to compete for contracts to furnish
property or services that are procured by the executive
agency on a recurring basis.
‘‘(3) NOTIFICATION.—The procedures shall in-
clude a requirement that the head of an executive
agency provide for the publication of appropriate no-
tification about the verification system in the Com-
merce Business Daily.
‘‘(b) EVALUATION.—(1) Under the procedures referred
to in subsection (a)(2), the head of an executive agency in
granting a verification to a contractor shall use the follow-
ing factors as the basis of the evaluation:
‘‘(A) The efficiency and effectiveness of its busi-
ness practices.
‘‘(B) The level of quality of its product or serv-
ice.
‘‘(C) Past performance of the contractor with re-
gard to the particular property or service.
‘‘(2)(A) The evaluation of past performance may in-
clude performance under—
‘‘(i) a contract with an executive agency of the
Federal Government;
‘‘(ii) a contract with an agency of a State or
local government; or
‘‘(iii) a contract with an entity in the private
sector.
‘‘(B) The procedures shall include a requirement that,
in the case of a contractor with respect to which there is
no information on past contract performance or with re-
spect to which information on past contract performance
is not available, the contractor may not be evaluated favor-
ably or unfavorably on the factor of past performance.
‘‘(c) OPPORTUNITY FOR ALL INTERESTED SOURCES.—
The Federal Acquisition Regulation shall provide proce-
dures for ensuring that all interested sources, including
small businesses, have a fair opportunity to be considered
for verification under the verification system.
‘‘(d) PROCUREMENT
FROM
VERIFIED
CONTRAC-
TORS.—The Federal Acquisition Regulation shall provide
procedures under which the head of an executive agency
may enter into a contract for the procurement of property
or services referred to in subsection (a)(2) on the basis of
a competition in accordance with section 2304 of title 10,
United States Code, or section 303 of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 253)
for contractors verified with respect to such property or
services pursuant to the contractor verification system.
‘‘(e) TERMINATION OF VERIFICATION.—The Federal
Acquisition Regulation shall provide procedures under
which the head of an executive agency—
‘‘(1) may provide for the termination of a ver-
ification granted a contractor under this section upon
the expiration of a period specified by the head of an
executive agency;
‘‘(2) may revoke a verification granted a con-
tractor under this section upon a determination that
the quality of performance of the contractor does not
meet standards applied by the head of the executive
agency as of the time of the revocation decision; and
‘‘(3) may provide that a contractor whose ver-
ification is terminated or revoked will have a fair op-
portunity to be considered for reentry into the ver-
ification system.
‘‘(f) SPECIAL APPLICABILITY RULE.—Notwithstanding
section 34, the verification system shall apply to the pro-
curement of commercial items.’’.
(b) REPEALS.—Section 2319 of title 10, United States
Code, is repealed. Section 303C of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253c) is
repealed.
(c) CLERICAL AMENDMENTS.—(1) The table of con-
tents for the Office of Federal Procurement Policy Act (con-
tained in section 1(b)) is amended by adding at the end
the following new item:
‘‘Sec. 35. Contractor performance.’’.
(2) The table of sections at the beginning of chapter
137 of title 10, United States Code, is amended by striking
out the item relating to section 2319.
(3) The table of contents for the Federal Property and
Administrative Services Act of 1949 (contained in section
1(b)) is amended by striking out the item relating to section
303C.
TITLE II—COMMERCIAL ITEMS
SEC. 201. COMMERCIAL ITEM EXCEPTION TO REQUIREMENT
FOR COST OR PRICING DATA AND INFORMA-
TION LIMITATIONS.
(a) ARMED SERVICES ACQUISITIONS.—(1) Subsections
(b), (c), and (d) of section 2306a of title 10, United States
Code, are amended to read as follows:
‘‘(b) EXCEPTIONS.—
‘‘(1) IN GENERAL.—Submission of cost or pric-
ing data shall not be required under subsection (a) in
the case of a contract, a subcontract, or modification
of a contract or subcontract—
‘‘(A) for which the price agreed upon is
based on—
‘‘(i) adequate price competition; or
‘‘(ii) prices set by law or regulation;
‘‘(B) for the acquisition of a commercial
item; or
‘‘(C) in an exceptional case when the head
of the procuring activity, without delegation, de-
termines that the requirements of this section
may be waived and justifies in writing the rea-
sons for such determination.
‘‘(2) MODIFICATIONS OF CONTRACTS AND SUB-
CONTRACTS FOR COMMERCIAL ITEMS.—In the case of
a modification of a contract or subcontract for a com-
mercial item that is not covered by the exception on
the submission of cost or pricing data in paragraph
(1)(A) or (1)(B), submission of cost or pricing data
shall not be required under subsection (a) if—
‘‘(A) the contract or subcontract being
modified is a contract or subcontract for which
submission of cost or pricing data may not be
required by reason of paragraph (1)(A) or
(1)(B); and
‘‘(B) the modification would not change the
contract or subcontract, as the case may be, from
a contract or subcontract for the acquisition of
a commercial item to a contract or subcontract
for the acquisition of an item other than a com-
mercial item.
‘‘(c) AUTHORITY TO REQUIRE COST OR PRICING DATA
ON BELOW-THRESHOLD CONTRACTS.—(1) Subject to para-
graph (2), when certified cost or pricing data are not re-
quired to be submitted by subsection (a) for a contract, sub-
contract, or modification of a contract or subcontract, such
data may nevertheless be required to be submitted by the
head of the procuring activity, but only if the head of the
procuring activity determines that such data are necessary
for the evaluation by the agency of the reasonableness of
the price of the contract, subcontract, or modification of a
contract or subcontract. In any case in which the head of
the procuring activity requires such data to be submitted
under this subsection, the head of the procuring activity
shall justify in writing the reason for such requirement.
‘‘(2) The head of the procuring activity may not re-
quire certified cost or pricing data to be submitted under
this paragraph for any contract or subcontract, or modi-
fication of a contract or subcontract, covered by the excep-
tions in subparagraph (A) or (B) of subsection (b)(1).
‘‘(3) The head of a procuring activity may not delegate
functions under this paragraph.
‘‘(d) LIMITATIONS
ON OTHER INFORMATION.—The
Federal Acquisition Regulation shall include the following:
‘‘(1) Provisions concerning the types of informa-
tion that contracting officers may consider in deter-
mining whether the price of a procurement to the
Government is fair and reasonable when certified cost
or pricing data are not required to be submitted
under this section, including appropriate information
on the prices at which the same item or similar items
have previously been sold that is adequate for evaluat-
ing the reasonableness of the price of the proposed
contract or subcontract for the procurement.
‘‘(2) Reasonable limitations on requests for sales
data relating to commercial items.
‘‘(3) A requirement that a contracting officer
shall, to the maximum extent practicable, limit the
scope of any request for information relating to com-
mercial items from an offeror to only that informa-
tion that is in the form regularly maintained by the
offeror in commercial operations.
‘‘(4) A statement that any information received
relating to commercial items that is exempt from dis-
closure under section 552(b) of title 5 shall not be dis-
closed by the Federal Government.’’.
(2) Section 2306a of such title is further amended—
(A) by striking out subsection (h); and
(B) by redesignating subsection (i) as subsection
(h).
(3) Section 2375 of title 10, United States Code, is
amended by striking out subsection (c).
(b) CIVILIAN AGENCY ACQUISITIONS.—(1) Subsections
(b), (c) and (d) of section 304A of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 254b)
are amended to read as follows:
‘‘(b) EXCEPTIONS.—
‘‘(1) IN GENERAL.—Submission of cost or pric-
ing data shall not be required under subsection (a) in
the case of a contract, a subcontract, or a modifica-
tion of a contract or subcontract—
‘‘(A) for which the price agreed upon is
based on—
‘‘(i) adequate price competition; or
‘‘(ii) prices set by law or regulation;
‘‘(B) for the acquisition of a commercial
item; or
‘‘(C) in an exceptional case when the head
of the procuring activity, without delegation, de-
termines that the requirements of this section
may be waived and justifies in writing the rea-
sons for such determination.
‘‘(2) MODIFICATIONS OF CONTRACTS AND SUB-
CONTRACTS FOR COMMERCIAL ITEMS.—In the case of
a modification of a contract or subcontract for a com-
mercial item that is not covered by the exception on
the submission of cost or pricing data in paragraph
(1)(A) or (1)(B), submission of cost or pricing data
shall not be required under subsection (a) if—
‘‘(A) the contract or subcontract being
modified is a contract or subcontract for which
submission of cost or pricing data may not be
required by reason of paragraph (1)(A) or
(1)(B); and
‘‘(B) the modification would not change the
contract or subcontract, as the case may be, from
a contract or subcontract for the acquisition of
a commercial item to a contract or subcontract
for the acquisition of an item other than a com-
mercial item.
‘‘(c) AUTHORITY TO REQUIRE COST OR PRICING DATA
ON BELOW-THRESHOLD CONTRACTS.—(1) Subject to para-
graph (2), when certified cost or pricing data are not re-
quired to be submitted by subsection (a) for a contract, sub-
contract, or modification of a contract or subcontract, such
data may nevertheless be required to be submitted by the
head of the procuring activity, but only if the head of the
procuring activity determines that such data are necessary
for the evaluation by the agency of the reasonableness of
the price of the contract, subcontract, or modification of a
contract or subcontract. In any case in which the head of
the procuring activity requires such data to be submitted
under this subsection, the head of the procuring activity
shall justify in writing the reason for such requirement.
‘‘(2) The head of the procuring activity may not re-
quire certified cost or pricing data to be submitted under
this paragraph for any contract or subcontract, or modi-
fication of a contract or subcontract, covered by the excep-
tions in subparagraph (A) or (B) of subsection (b)(1).
‘‘(3) The head of a procuring activity may not delegate
the functions under this paragraph.
‘‘(d) LIMITATIONS
ON OTHER INFORMATION.—The
Federal Acquisition Regulation shall include the following:
‘‘(1) Provisions concerning the types of informa-
tion that contracting officers may consider in deter-
mining whether the price of a procurement to the
Government is fair and reasonable when certified cost
or pricing data are not required to be submitted
under this section, including appropriate information
on the prices at which the same item or similar items
have previously been sold that is adequate for evaluat-
ing the reasonableness of the price of the proposed
contract or subcontract for the procurement.
‘‘(2) Reasonable limitations on requests for sales
data relating to commercial items.
‘‘(3) A requirement that a contracting officer
shall, to the maximum extent practicable, limit the
scope of any request for information relating to com-
mercial items from an offeror to only that informa-
tion that is in the form regularly maintained by the
offeror in commercial operations.
‘‘(4) A statement that any information received
relating to commercial items that is exempt from dis-
closure under section 552(b) of title 5 shall not be dis-
closed by the Federal Government.’’.
(2) Section 304A of such Act is further amended—
(A) by striking out subsection (h); and
(B) by redesignating subsection (i) as subsection
(h).
SEC. 202. APPLICATION OF SIMPLIFIED PROCEDURES TO
COMMERCIAL ITEMS.
(a) 
ARMED
SERVICES
ACQUISITIONS.—Section
2304(e) of title 10, United States Code, as amended by sec-
tion 101(a), is further amended—
(1) in paragraph (1), by inserting after ‘‘special
simplified procedures’’ the following: ‘‘for purchases of
commercial items and’’; and
(2) by adding at the end the following new para-
graph:
‘‘(4) The Federal Acquisition Regulation shall provide
that, in the case of a purchase of commercial items in an
amount greater than the simplified acquisition threshold,
the head of an agency—
‘‘(A) may not conduct the purchase on a sole
source basis unless the need to do so is justified in
writing and approved in accordance with the Federal
Acquisition Regulation; and
‘‘(B) shall include in the contract file a written
description of the procedures used in awarding the
contract and the number of offers received.’’.
(b) CIVILIAN AGENCY ACQUISITIONS.—Section 303(e)
of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 253), as amended by section 101(b), is
further amended—
(1) in paragraph (1), by inserting after ‘‘special
simplified procedures’’ the following: ‘‘for purchases of
commercial items and’’; and
(2) by adding at the end the following new para-
graph:
‘‘(5) The Federal Acquisition Regulation shall provide
that, in the case of a purchase of commercial items in an
amount greater than the simplified acquisition threshold,
an executive agency—
‘‘(A) may not conduct the purchase on a sole
source basis unless the need to do so is justified in
writing and approved in accordance with the Federal
Acquisition Regulation; and
‘‘(B) shall include in the contract file a written
description of the procedures used in awarding the
contract and the number of offers received.’’.
(c) SIMPLIFIED NOTICE.—Section 18 of the Office of
Federal Procurement Policy Act (41 U.S.C. 416) is amend-
ed—
(1) in subsection (a)(5) (as redesignated by sec-
tion 101(c))—
(A) by striking out ‘‘limited’’; and
(B) by inserting before ‘‘submission’’ the fol-
lowing: ‘‘issuance of solicitations and the’’; and
(2) in subsection (b)(6), by striking out ‘‘thresh-
old—’’ and inserting in lieu thereof ‘‘threshold, or a
contract for the procurement of commercial items
using simplified procedures—’’.
SEC. 203. AMENDMENT TO DEFINITION OF COMMERCIAL
ITEMS.
Section 4(12)(F) of the Office of Federal Procurement
Policy Act (41 U.S.C. 403(12)(F)) is amended by striking
out ‘‘catalog’’.
SEC. 204. INAPPLICABILITY OF COST ACCOUNTING STAND-
ARDS TO CONTRACTS AND SUBCONTRACTS
FOR COMMERCIAL ITEMS.
Subparagraph (B) of section 26(f)(2) of the Office of
Federal Procurement Policy Act (41 U.S.C. 422(f)(2)) is
amended—
(1) by striking out clause (i) and inserting in
lieu thereof the following:
‘‘(i) Contracts or subcontracts for the acquisition
of commercial items.’’; and
(2) by striking out clause (iii).
TITLE III—ADDITIONAL REFORM
PROVISIONS
SEC. 301. GOVERNMENT RELIANCE ON THE PRIVATE SEC-
TOR.
(a) GOVERNMENT RELIANCE ON THE PRIVATE SEC-
TOR.—The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.) is amended by inserting after section
16 the following new section:
‘‘SEC. 17. GOVERNMENT RELIANCE ON THE PRIVATE SEC-
TOR.
‘‘It is the policy of the Federal Government to rely on
the private sector to supply the products and services the
Federal Government needs.’’.
(b) CLERICAL AMENDMENT.—The table of contents for
the Office of Federal Procurement Policy Act (contained in
section 1(b)) is amended by inserting after the item relating
to section 16 the following new item:
‘‘Sec. 17. Government reliance on the private sector.’’.
SEC. 302. ELIMINATION OF CERTAIN CERTIFICATION RE-
QUIREMENTS.
(a) ELIMINATION OF CERTAIN STATUTORY CERTIFI-
CATION REQUIREMENTS.—(1)(A) Section 2410 of title 10,
United States Code, is amended—
(i) in the heading, by striking out ‘‘: certifi-
cation’’; and
(ii) in subsection (a)—
(I) in the heading, by striking out ‘‘CER-
TIFICATION’’;
(II) by striking out ‘‘unless’’ and all that
follows through ‘‘that—’’ and inserting in lieu
thereof ‘‘unless—’’; and
(III) in paragraph (2), by striking out ‘‘to
the best of that person’s knowledge and belief’’.
(B) The item relating to section 2410 in the table of
sections at the beginning of chapter 141 of such title is
amended to read as follows:
‘‘Sec. 2410. Requests for equitable adjustment or other relief.’’.
(2) Section 2410b of title 10, United States Code, is
amended in paragraph (2) by striking out ‘‘certification
and’’.
(3) Section 1352(b)(2) of title 31, United States Code,
is amended—
(A) by striking out subparagraph (C); and
(B) by inserting ‘‘and’’ after the semicolon at the
end of subparagraph (A).
(4) Section 5152 of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701) is amended—
(A) in subsection (a)(1), by striking out ‘‘has
certified to the contracting agency that it will’’ and
inserting in lieu thereof ‘‘agrees to’’;
(B) in subsection (a)(2), by striking out ‘‘con-
tract includes a certification by the individual’’ and
inserting in lieu thereof ‘‘individual agrees’’; and
(C) in subsection (b)(1)—
(i) by striking out subparagraph (A);
(ii) by redesignating subparagraph (B) as
subparagraph (A) and in that subparagraph by
striking out ‘‘such certification by failing to
carry out’’; and
(iii) by redesignating subparagraph (C) as
subparagraph (B).
(b) ELIMINATION OF CERTAIN REGULATORY CERTIFI-
CATION REQUIREMENTS.—
(1) CURRENT CERTIFICATION REQUIREMENTS.—
(A) Not later than 210 days after the date of the en-
actment of this Act, any certification required of con-
tractors or offerors by the Federal Acquisition Regula-
tion that is not specifically imposed by statute shall
be removed by the Administrator for Federal Procure-
ment Policy from the Federal Acquisition Regulation
unless—
(i) written justification for such certifi-
cation is provided to the Administrator by the
Federal Acquisition Regulatory Council; and
(ii) the Administrator approves in writing
the retention of such certification.
(B)(i) Not later than 210 days after the date of
the enactment of this Act, any certification required
of contractors or offerors by a procurement regulation
of an executive agency that is not specifically imposed
by statute shall be removed by the head of the execu-
tive agency from such regulation unless—
(I) written justification for such certifi-
cation is provided to the head of the executive
agency by the senior procurement executive; and
(II) the head of the executive agency ap-
proves in writing the retention of such certifi-
cation.
(ii) For purposes of clause (i), the term ‘‘head of
the executive agency’’ with respect to a military de-
partment means the Secretary of Defense.
(iii) The Secretary of Defense may delegate his
duties under this subparagraph only to the Under
Secretary of Defense for Acquisition and Technology.
(2) FUTURE CERTIFICATION REQUIREMENTS.—
(A) Section 29 of the Office of Federal Procurement
Policy Act (41 U.S.C. 425) is amended—
(i) by amending the heading to read as fol-
lows:
‘‘SEC. 29. CONTRACT CLAUSES AND CERTIFICATIONS.’’;
(ii) by inserting ‘‘(a) NONSTANDARD CON-
TRACT CLAUSES.—’’ before ‘‘The Federal Acqui-
sition’’; and
(iii) by adding at the end the following new
subsection:
‘‘(b) PROHIBITION
ON
CERTIFICATION
REQUIRE-
MENTS.—(1) A requirement for a certification by a contrac-
tor or offeror may not be included in the Federal Acquisi-
tion Regulation unless—
‘‘(A) the certification is specifically imposed by
statute; or
‘‘(B) written justification for such certification is
provided to the Administrator for Federal Procure-
ment Policy by the Federal Acquisition Regulatory
Council, and the Administrator approves in writing
the inclusion of such certification.
‘‘(2)(A) A requirement for a certification by a contrac-
tor or offeror may not be included in a procurement regula-
tion of an executive agency unless—
‘‘(i) the certification is specifically imposed by
statute; or
‘‘(ii) written justification for such certification is
provided to the head of the executive agency by the
senior procurement executive of the agency, and the
head of the executive agency approves in writing the
inclusion of such certification.
‘‘(B) For purposes of subparagraph (A), the term ‘head
of the executive agency’ with respect to a military depart-
ment means the Secretary of Defense.
‘‘(C) The Secretary of Defense may delegate his duties
under this paragraph only to the Under Secretary of De-
fense for Acquisition and Technology.’’.
(B) The item relating to section 29 in the table
of contents for the Office of Federal Procurement Pol-
icy Act (contained in section 1(b)) (41 U.S.C. 401
note) is amended to read as follows:
‘‘Sec. 29. Contract clauses and certifications.’’.
SEC. 303. AMENDMENT TO COMMENCEMENT AND EXPIRA-
TION OF AUTHORITY TO CONDUCT CERTAIN
TESTS OF PROCUREMENT PROCEDURES.
Subsection (j) of section 5061 of the Federal Acquisi-
tion Streamlining Act of 1994 (41 U.S.C. 413 note) is
amended to read as follows:
‘‘(j) COMMENCEMENT AND EXPIRATION OF AUTHOR-
ITY.—The authority to conduct a test under subsection (a)
in an agency and to award contracts under such a test shall
take effect on August 1, 1995, and shall expire on August
1, 2000. Contracts entered into before such authority expires
in an agency pursuant to a test shall remain in effect, not-
withstanding the expiration of the authority to conduct the
test under this section.’’.
SEC. 304. INTERNATIONAL COMPETITIVENESS.
(a) REPEAL OF PROVISION RELATING TO RESEARCH,
DEVELOPMENT, AND PRODUCTION COSTS.—
(1) Subject to paragraph (2), section 21(e) of the
Arms Export Control Act (22 U.S.C. 2761(e)) is
amended—
(A) by inserting ‘‘and’’ after the semicolon
at the end of paragraph (1)(A);
(B) by striking out subparagraph (B) of
paragraph (1);
(C) by redesignating subparagraph (C) of
paragraph (1) as subparagraph (B);
(D) by striking out paragraph (2); and
(E) by redesignating paragraph (3) as
paragraph (2).
(2) Paragraph (1) shall be effective only if—
(A) the President, in the budget of the
President for fiscal year 1997, proposes legisla-
tion that if enacted would be qualifying offset-
ting legislation; and
(B) there is enacted by October 1, 1996,
qualifying offsetting legislation.
(3) If the conditions in paragraph (2) are met,
then the amendments made by paragraph (1) shall
take effect on October 1, 1996.
(4) For purposes of this subsection:
(A) The term ‘‘qualifying offsetting legisla-
tion’’ means legislation that includes provisions
that—
(i) offset fully the estimated revenues
lost as a result of the amendments made by
paragraph (1) for each of the fiscal years
1997 through 2000;
(ii) expressly state that they are en-
acted for the purpose of the offset described
in clause (i); and
(iii) are included in full on the PayGo
scorecard.
(B) The term ‘‘PayGo scorecard’’ means the
estimates that are made with respect to fiscal
years through fiscal year 2000 by the Director of
the Congressional Budget Office and the Director
of the Office of Management and Budget under
section 252(d) of the Balanced Budget and
Emergency Deficit Control Act of 1985.
(b) EFFECTIVE DATES.—The amendments made by
subsection (a) shall be effective with respect to sales agree-
ments pursuant to sections 21 and 22 of the Arms Export
Control Act (22 U.S.C. 2761 and 2762) entered into during
the period beginning on October 1, 1996, and ending on
September 30, 2000.
SEC. 305. PROCUREMENT INTEGRITY.
(a) AMENDMENT OF PROCUREMENT INTEGRITY PROVI-
SION.—Section 27 of the Office of Federal Procurement Pol-
icy Act (41 U.S.C. 423) is amended to read as follows:
‘‘SEC. 27. RESTRICTIONS ON DISCLOSING AND OBTAINING
CONTRACTOR BID OR PROPOSAL INFORMA-
TION OR SOURCE SELECTION INFORMATION.
‘‘(a) PROHIBITION ON DISCLOSING PROCUREMENT IN-
FORMATION.—(1) A person described in paragraph (2) shall
not, other than as provided by law, knowingly disclose con-
tractor bid or proposal information or source selection in-
formation before the award of a Federal agency procure-
ment contract to which the information relates.
‘‘(2) Paragraph (1) applies to any person who—
‘‘(A) is a present or former officer or employee
of the United States, or a person who is acting or has
acted for or on behalf of, or who is advising or has
advised the United States with respect to, a Federal
agency procurement; and
‘‘(B) by virtue of that office, employment, or re-
lationship has or had access to contractor bid or pro-
posal information or source selection information.
‘‘(b) PROHIBITION ON OBTAINING PROCUREMENT IN-
FORMATION.—A person shall not, other than as provided
by law, knowingly obtain contractor bid or proposal infor-
mation or source selection information before the award of
a Federal agency procurement contract to which the infor-
mation relates.
‘‘(c) PROHIBITION
ON DISCLOSING
OR OBTAINING
PROCUREMENT INFORMATION
IN CONNECTION WITH
A
PROTEST.—(1) A person shall not, other than as provided
by law, knowingly violate the terms of a protective order
described in paragraph (2) by disclosing or obtaining con-
tractor bid or proposal information or source selection in-
formation related to the procurement contract concerned.
‘‘(2) Paragraph (1) applies to any protective order is-
sued by the Defense Board or the Civilian Board in connec-
tion with a protest against the award or proposed award
of a Federal agency procurement contract.
‘‘(d) PENALTIES AND ADMINISTRATIVE ACTIONS.—
‘‘(1) CRIMINAL PENALTIES.—
‘‘(A) Whoever engages in conduct constitut-
ing an offense under subsection (a), (b), or (c)
shall be imprisoned for not more than one year
or fined as provided under title 18, United
States Code, or both.
‘‘(B) Whoever engages in conduct constitut-
ing an offense under subsection (a), (b), or (c)
for the purpose of either—
‘‘(i) exchanging the information cov-
ered by such subsection for anything of
value, or
‘‘(ii) obtaining or giving anyone a
competitive advantage in the award of a
Federal agency procurement contract,
shall be imprisoned for not more than 15 years
or fined as provided under title 18, United
States Code, or both.
‘‘(2) CIVIL PENALTIES.—The Attorney General
may bring a civil action in the appropriate United
States district court against any person who engages
in conduct constituting an offense under subsection
(a), (b), or (c). Upon proof of such conduct by a pre-
ponderance of the evidence, the person is subject to a
civil penalty. An individual who engages in such con-
duct is subject to a civil penalty of not more than
$50,000 for each violation plus twice the amount of
compensation which the individual received or offered
for the prohibited conduct. An organization that en-
gages in such conduct is subject to a civil penalty of
not more than $500,000 for each violation plus twice
the amount of compensation which the organization
received or offered for the prohibited conduct.
‘‘(3) ADMINISTRATIVE ACTIONS.—(A) If a Fed-
eral agency receives information that a contractor or
a person has engaged in conduct constituting an of-
fense under subsection (a), (b), or (c), the Federal
agency shall consider taking one or more of the fol-
lowing actions, as appropriate:
‘‘(i) Cancellation of the Federal agency pro-
curement, if a contract has not yet been award-
ed.
‘‘(ii) Rescission of a contract with respect to
which—
‘‘(I) the contractor or someone acting
for the contractor has been convicted for an
offense under subsection (a), (b), or (c), or
‘‘(II) the head of the agency that
awarded the contract has determined, based
upon a preponderance of the evidence, that
the contractor or someone acting for the
contractor has engaged in conduct constitut-
ing such an offense.
‘‘(iii) Initiation of suspension or debarment
proceedings for the protection of the Government
in accordance with procedures in the Federal Ac-
quisition Regulation.
‘‘(iv) Initiation of adverse personnel action,
pursuant to the procedures in chapter 75 of title
5, United States Code, or other applicable law or
regulation.
‘‘(B) If a Federal agency rescinds a contract
pursuant to subparagraph (A)(ii), the United States
is entitled to recover, in addition to any penalty pre-
scribed by law, the amount expended under the con-
tract.
‘‘(C) For purposes of any suspension or debar-
ment proceedings initiated pursuant to subparagraph
(A)(iii), engaging in conduct constituting an offense
under subsection (a), (b), or (c) affects the present re-
sponsibility of a Government contractor or sub-
contractor.
‘‘(e) DEFINITIONS.—As used in this section:
‘‘(1) The term ‘contractor bid or proposal infor-
mation’ means any of the following information sub-
mitted to a Federal agency as part of or in connec-
tion with a bid or proposal to enter into a Federal
agency procurement contract, if that information has
not been previously made available to the public or
disclosed publicly:
‘‘(A) Cost or pricing data (as defined by
section 2306a(h) of title 10, United States Code,
with respect to procurements subject to that sec-
tion, and section 304A(h) of Federal Property
and Administrative Services Act of 1949 (41
U.S.C. 254b(h), with respect to procurements
subject to that section).
‘‘(B) Indirect costs and direct labor rates.
‘‘(C) Proprietary information about manu-
facturing processes, operations, or techniques
marked by the contractor in accordance with ap-
plicable law or regulation.
‘‘(D) Information marked by the contractor
as ‘contractor bid or proposal information’, in
accordance with applicable law or regulation.
‘‘(2) The term ‘source selection information’
means any of the following information prepared for
use by a Federal agency for the purpose of evaluating
a bid or proposal to enter into a Federal agency pro-
curement contract, if that information has not been
previously made available to the public or disclosed
publicly:
‘‘(A) Bid prices submitted in response to a
Federal agency solicitation for sealed bids, or
lists of those bid prices before public bid opening.
‘‘(B) Proposed costs or prices submitted in
response to a Federal agency solicitation, or lists
of those proposed costs or prices.
‘‘(C) Source selection plans.
‘‘(D) Technical evaluation plans.
‘‘(E) Technical evaluations of proposals.
‘‘(F) Cost or price evaluations of proposals.
‘‘(G) Competitive range determinations that
identify proposals that have a reasonable chance
of being selected for award of a contract.
‘‘(H) Rankings of bids, proposals, or com-
petitors.
‘‘(I) The reports and evaluations of source
selection panels, boards, or advisory councils.
‘‘(J) Other information marked as ‘source
selection information’ based on a case-by-case de-
termination by the head of the agency, his des-
ignee, or the contracting officer that its disclo-
sure would jeopardize the integrity or successful
completion of the Federal agency procurement to
which the information relates.
‘‘(3) The term ‘Federal agency’ has the meaning
provided such term in section 3 of the Federal Prop-
erty and Administrative Services Act of 1949 (40
U.S.C. 472).
‘‘(4) The term ‘Federal agency procurement’
means the acquisition (by using competitive proce-
dures and awarding a contract) of goods or services
(including construction) from non-Federal sources by
a Federal agency using appropriated funds.
‘‘(5) The term ‘contracting officer’ means a per-
son who, by appointment in accordance with applica-
ble regulations, has the authority to enter into a Fed-
eral agency procurement contract on behalf of the
Government and to make determinations and findings
with respect to such a contract.
‘‘(6) The term ‘protest’ means a written objection
by an interested party to the award or proposed
award of a Federal agency procurement contract,
pursuant to title IV of the Federal Acquisition Re-
form Act of 1995.
‘‘(f) LIMITATION ON PROTESTS.—No person may file
a protest against the award or proposed award of a Federal
agency procurement contract alleging an offense under sub-
section (a), (b), or (c), of this section, nor may the Defense
Board or the Civilian Board consider such an allegation
in deciding a protest, unless that person reported to the
Federal agency responsible for the procurement information
that the person believed constituted evidence of the offense
no later than 14 days after the person first discovered the
possible offense.
‘‘(g) SAVINGS PROVISIONS.—This section does not—
‘‘(1) restrict the disclosure of information to, or
its receipt by, any person or class of persons author-
ized, in accordance with applicable agency regula-
tions or procedures, to receive that information;
‘‘(2) restrict a contractor from disclosing its own
bid or proposal information or the recipient from re-
ceiving that information;
‘‘(3) restrict the disclosure or receipt of informa-
tion relating to a Federal agency procurement after
it has been canceled by the Federal agency before con-
tract award unless the Federal agency plans to re-
sume the procurement;
‘‘(4) prohibit individual meetings between a Fed-
eral agency employee and an offeror or potential
offeror for, or a recipient of, a contract or subcontract
under a Federal agency procurement, provided that
unauthorized disclosure or receipt of contractor bid or
proposal information or source selection information
does not occur;
‘‘(5) authorize the withholding of information
from, nor restrict its receipt by, Congress, a commit-
tee or subcommittee of Congress, the Comptroller Gen-
eral, a Federal agency, or an inspector general of a
Federal agency;
‘‘(6) authorize the withholding of information
from, nor restrict its receipt by, the Defense Board or
the Civilian Board in the course of a protest against
the award or proposed award of a Federal agency
procurement contract; or
‘‘(7) limit the applicability of any requirements,
sanctions, contract penalties, and remedies established
under any other law or regulation.’’.
(b) REPEALS.—The following provisions of law are re-
pealed:
(1) Sections 2397, 2397a, 2397b, and 2397c of
title 10, United States Code.
(2) Section 33 of the Federal Energy Adminis-
tration Act of 1974 (15 U.S.C. 789).
(3) Section 281 of title 18, United States Code.
(4) Subsection (c) of section 32 of the Office of
Federal Procurement Policy Act (41 U.S.C. 428).
(5) The first section 19 of the Federal Non-
nuclear Energy Research and Development Act of
1974 (42 U.S.C. 5918).
(c) CLERICAL AMENDMENTS.—
(1) The table of sections at the beginning of
chapter 141 of title 10, United States Code, is amend-
ed by striking out the items relating to sections 2397,
2397a, 2397b, and 2397c.
(2) The table of sections at the beginning of
chapter 15 of title 18, United States Code, is amended
by striking out the item relating to section 281.
(3) Section 32 of the Office of Federal Procure-
ment Policy Act (41 U.S.C. 428) is amended by redes-
ignating subsections (d), (e), (f), and (g) as sub-
sections (c), (d), (e), and (f), respectively.
SEC. 306. FURTHER ACQUISITION STREAMLINING PROVI-
SIONS.
(a) PURPOSE OF OFFICE OF FEDERAL PROCUREMENT
POLICY.—(1) Section 5(a) of the Office of Federal Procure-
ment Policy Act (41 U.S.C. 404) is amended to read as
follows:
‘‘(a) To promote economy, efficiency, and effectiveness
in the procurement of property and services by the executive
branch of the Federal Government, there shall be an Office
of Federal Procurement Policy (hereinafter referred to as
the ‘Office’) in the Office of Management and Budget to pro-
vide overall direction of Government-wide procurement
policies, regulations, procedures, and forms for executive
agencies.’’.
(2) Sections 2 and 3 of such Act (41 U.S.C. 401 and
402) are repealed.
(b) REPEAL OF REPORT REQUIREMENT.—Section 8 of
the Office of Federal Procurement Policy Act (41 U.S.C.
407) is repealed.
(c) REPEAL OF OBSOLETE PROVISIONS.—(1) Sections
10 and 11 of the Office of Federal Procurement Policy Act
(41 U.S.C. 409 and 410) are repealed.
(d) CLERICAL AMENDMENTS.—The table of contents
for the Office of Federal Procurement Policy Act (contained
in section 1(b)) is amended by striking out the items relat-
ing to sections 2, 3, 8, 10, and 11.
SEC. 307. JUSTIFICATION OF MAJOR DEFENSE ACQUISI-
TION PROGRAMS NOT MEETING GOALS.
Section 2220(b) of title 10, United States Code, is
amended by adding at the end the following: ‘‘In addition,
the Secretary shall include in such annual report a jus-
tification for the continuation of any program that—
‘‘(1) is more than 50 percent over the cost goal
established for the development, procurement, or oper-
ational phase of the program;
‘‘(2) fails to achieve at least 50 percent of the
performance capability goals established for the devel-
opment, procurement, or operational phase of the pro-
gram; or
‘‘(3) is more than 50 percent behind schedule, as
determined in accordance with the schedule goal es-
tablished for the development, procurement, or oper-
ational phase of the program.’’.
SEC. 308. ENHANCED PERFORMANCE INCENTIVES FOR AC-
QUISITION WORKFORCE.
(a) ARMED SERVICES ACQUISITIONS.—Subsection (b)
of section 5001 of the Federal Acquisition Streamlining Act
of 1994 (Public Law 103–355; 108 Stat. 3350; 10 U.S.C.
2220 note) is amended—
(1) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively;
(2) by designating the second sentence as para-
graph (2);
(3) by inserting ‘‘(1)’’ after ‘‘(b) ENHANCED SYS-
TEM OF PERFORMANCE INCENTIVES.—’’; and
(4) by adding at the end the following:
‘‘(3) The Secretary shall include in the enhanced sys-
tem of incentives the following:
‘‘(A) Pay bands.
‘‘(B) Significant and material pay and pro-
motion incentives to be awarded, and significant and
material unfavorable personnel actions to be imposed,
under the system exclusively, or primarily, on the
basis of the contributions of personnel to the perform-
ance of the acquisition program in relation to cost
goals, performance goals, and schedule goals.
‘‘(C) Provisions for pay incentives and pro-
motion incentives to be awarded under the system.’’.
(b) CIVILIAN AGENCY ACQUISITIONS.—Subsection (c)
of section 5051 of the Federal Acquisition Streamlining Act
of 1994 (Public Law 103–355; 108 Stat. 3351; 41 U.S.C.
263 note) is amended—
(1) by redesignating subparagraphs (A) and (B)
of paragraph (2) as clauses (i) and (ii), respectively;
(2) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively;
(3) by inserting ‘‘(1)’’ after ‘‘(c) ENHANCED SYS-
TEM OF PERFORMANCE INCENTIVES.—’’; and
(4) by adding at the end the following:
‘‘(2) The Deputy Director shall include in the en-
hanced system of incentives under paragraph (1)(B) the fol-
lowing:
‘‘(A) Pay bands.
‘‘(B) Significant and material pay and pro-
motion incentives to be awarded, and significant and
material unfavorable personnel actions to be imposed,
under the system exclusively, or primarily, on the
basis of the contributions of personnel to the perform-
ance of the acquisition program in relation to cost
goals, performance goals, and schedule goals.
‘‘(C) Provisions for pay incentives and pro-
motion incentives to be awarded under the system.’’.
SEC. 309. RESULTS ORIENTED ACQUISITION PROGRAM
CYCLE.
Section 5002(a) of the Federal Acquisition Streamlin-
ing Act of 1994 (Public Law 103–355; 108 Stat. 3350) is
amended—
(1) by inserting ‘‘(1)’’ before ‘‘to ensure’’; and
(2) by striking out the period at the end and in-
serting in lieu thereof the following: ‘‘; (2) to ensure
that the regulations compress the time periods associ-
ated with developing, procuring, and making oper-
ational new systems; and (3) to ensure that Depart-
ment of Defense directives relating to development
and procurement of information systems (numbered
in the 8000 series) and the Department of Defense di-
rectives numbered in the 5000 series are consolidated
into one series of directives that is consistent with
such compressed time periods.’’.
SEC. 310. RAPID CONTRACTING GOAL.
(a) GOAL.—The Office of Federal Procurement Policy
Act, as amended by section 106, is further amended by add-
ing at the end the following new section:
‘‘SEC. 36. RAPID CONTRACTING GOAL.
‘‘The Administrator for Federal Procurement Policy
shall establish a goal of reducing by 50 percent the time
necessary for executive agencies to acquire an item for the
user of that item.’’.
(b) CLERICAL AMENDMENT.—The table of contents for
such Act, contained in section 1(b), is amended by adding
at the end the following new item:
‘‘Sec. 36. Rapid contracting goal.’’.
SEC. 311. ENCOURAGEMENT OF MULTIYEAR CONTRACTING.
(a) 
ARMED
SERVICES
ACQUISITIONS.—Section
2306b(a) of title 10, United States Code, is amended in the
matter preceding paragraph (1) by striking out ‘‘may’’ and
inserting in lieu thereof ‘‘shall, to the maximum extent pos-
sible,’’.
(b) 
CIVILIAN
AGENCY
ACQUISITIONS.—Section
304B(a) of the Federal Property and Administrative Serv-
ices Act of 1949 (41 U.S.C. 254c(a)) is amended in the mat-
ter preceding paragraph (1) by striking out ‘‘may’’ and in-
serting in lieu thereof ‘‘shall, to the maximum extent pos-
sible,’’.
SEC. 312. CONTRACTOR SHARE OF GAINS AND LOSSES
FROM COST, SCHEDULE, AND PERFORMANCE
EXPERIENCE.
(a) ARMED SERVICES ACQUISITIONS.—(1) Chapter
137 of title 10, United States Code, is amended by inserting
after section 2306b the following new section:
‘‘§ 2306c. Contractor share of gains and losses from
cost, schedule, and performance experi-
ence
‘‘The Federal Acquisition Regulation shall contain
provisions to ensure that, for any cost-type contract or in-
centive-type contract, the contractor may be rewarded for
contract performance exceeding the contract cost, schedule,
or performance parameters to the benefit of the United
States and may be penalized for failing to adhere to cost,
schedule, or performance parameters to the detriment of the
United States.’’.
(2) The table of sections at the beginning of such chap-
ter is amended by inserting after the item relating to section
2306b the following new item:
‘‘2306c. Contractor share of gains and losses from cost, schedule, and performance
experience.’’.
(b) CIVILIAN AGENCY ACQUISITIONS.—(1) Title III of
the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 251 et seq.) is amended by inserting after
section 304C the following new section:
‘‘SEC. 304D. CONTRACTOR SHARE OF GAINS AND LOSSES
FROM COST, SCHEDULE, AND PERFORMANCE
EXPERIENCE.
‘‘The Federal Acquisition Regulation shall contain
provisions to ensure that, for any cost-type contract or in-
centive-type contract, the contractor may be rewarded for
contract performance exceeding the contract cost, schedule,
or performance parameters to the benefit of the United
States and may be penalized for failing to adhere to cost,
schedule, or performance parameters to the detriment of the
United States.’’.
(2) The table of contents for such Act, contained in
section 1(b), is amended by inserting after the item relating
to section 304C the following new item:
‘‘Sec. 304D. Contractor share of gains and losses from cost, schedule, and perform-
ance experience.’’.
SEC. 313. PHASE FUNDING OF DEFENSE ACQUISITION PRO-
GRAMS.
Chapter 131 of title 10, United States Code, is amend-
ed by adding at the end the following new section:
‘‘§ 2221. Funding for results oriented acquisition pro-
gram cycle
‘‘Before initial funding is made available for the devel-
opment, procurement, or operational phase of an acquisi-
tion program for which an authorization of appropriations
is required by section 114 of this title, the Secretary of De-
fense shall submit to Congress information about the objec-
tives and plans for the conduct of that phase and the fund-
ing requirements for the entire phase. The information shall
identify the intended user of the system to be acquired under
the program and shall include objective, quantifiable cri-
teria for assessing the extent to which the objectives and
goals determined pursuant to section 2435 of this title are
achieved.’’.
(2) The table of sections at the beginning of such chap-
ter is amended by adding at the end the following new item:
‘‘2221. Funding for results oriented acquisition program cycle.’’.
SEC. 314. IMPROVED DEPARTMENT OF DEFENSE CONTRACT
PAYMENT PROCEDURES.
(a) REVIEW AND IMPROVEMENT OF PROCEDURES.—
The Comptroller General of the United States shall review
commercial practices regarding accounts payable and, con-
sidering the results of the review, develop standards for the
Secretary of Defense to consider using for improving the
contract payment procedures and financial management
systems of the Department of Defense.
(b) GAO REPORT.—Not later than September 30,
1996, the Comptroller General shall submit to Congress a
report containing the following matters:
(1) The weaknesses in the financial management
processes of the Department of Defense.
(2) Deviations of the Department of Defense pay-
ment procedures and financial management systems
from the standards developed pursuant to subsection
(a), expressed quantitatively.
(3) The officials of the Department of Defense
who are responsible for resolving the deviations.
SEC. 315. CONSIDERATION OF PAST PERFORMANCE IN AS-
SIGNMENT TO ACQUISITION POSITIONS.
(a) REQUIREMENT.—Section 1701(a) of title 10,
United States Code, is amended by adding at the end the
following: ‘‘The policies and procedures shall provide that
education and training in acquisition matters, and past
performance of acquisition responsibilities, are major fac-
tors in the selection of personnel for assignment to acquisi-
tion positions in the Department of Defense.’’.
(b) PERFORMANCE
REQUIREMENTS
FOR
ASSIGN-
MENT.—(1) Section 1723(a) of title 10, United States Code,
is amended by inserting ‘‘, including requirements relating
to demonstrated past performance of acquisition duties,’’ in
the first sentence after ‘‘experience requirements’’.
(2) Section 1724(a)(2) of such title is amended by in-
serting before the semicolon at the end the following: ‘‘and
have demonstrated proficiency in the performance of acqui-
sition duties in the contracting position or positions pre-
viously held’’.
(3) Section 1735 of such title is amended—
(A) in subsection (b)—
(i) by striking out ‘‘and’’ at the end of
paragraph (2);
(ii) by striking out the period at the end of
paragraph (3) and inserting in lieu thereof ‘‘;
and’’; and
(iii) by adding at the end the following:
‘‘(4) must have demonstrated proficiency in the
performance of acquisition duties.’’;
(B) in subsection (c)—
(i) by striking out ‘‘and’’ at the end of
paragraph (2);
(ii) by striking out the period at the end of
paragraph (3) and inserting in lieu thereof ‘‘;
and’’; and
(iii) by adding at the end the following:
‘‘(4) must have demonstrated proficiency in the
performance of acquisition duties.’’;
(C) in subsection (d), by inserting before the pe-
riod at the end the following: ‘‘, and have dem-
onstrated proficiency in the performance of acquisi-
tion duties’’; and
(D) in subsection (e), by inserting before the pe-
riod at the end the following: ‘‘, and have dem-
onstrated proficiency in the performance of acquisi-
tion duties’’.
SEC. 316. ADDITIONAL DEPARTMENT OF DEFENSE PILOT
PROGRAMS.
(a) ADDITIONAL PROGRAM AUTHORIZED FOR PAR-
TICIPATION IN DEFENSE ACQUISITION PILOT PROGRAM.—
Section 5064 of the Federal Acquisition Streamlining Act
of 1994 (P.L. 103–355; 108 Stat. 3359) is amended as fol-
lows:
(1) Subsection (a) is amended by adding at the
end the following new paragraph:
‘‘(6) JOINT STANDOFF WEAPON UNITARY VARIANT
(JSOW-UV).—The Joint Standoff Weapon Unitary
Variant program with respect to all contracts directly
related to the development and procurement of an air-
delivered, standoff weapon that incorporates a global
positioning system-aided inertial navigation system,
a data link capability, and a unitary warhead.’’.
(2) Subsection (c) is amended—
(A) by striking out ‘‘and’’ at the end of
paragraph (1);
(B) by striking out the period at the end of
paragraph (2) and inserting in lieu thereof ‘‘;
and’’; and
(C) by adding at the end the following new
paragraph:
‘‘(3) with respect to the program described in
subsection (a)(6)—
‘‘(A) to apply any amendment or repeal of
a provision of law made in the Federal Acquisi-
tion Reform Act of 1995 to the pilot program be-
fore the effective date of such amendment or re-
peal; and
‘‘(B) to apply to a procurement of items
other than commercial items under such pro-
gram any waiver or exception applicable under
the Federal Acquisition Streamlining Act of
1994 (Public Law 103–355) or the Federal Ac-
quisition Reform Act of 1995 (or an amendment
made by a provision of either Act) in the case
of commercial items before the effective date of
such provision (or amendment), to the extent
that the Secretary determines necessary to test
the application of such waiver or exception to
procurements of items other than commercial
items.’’.
(b) DEFENSE ACQUISITION FACILITY-WIDE PILOT
PROGRAM.—
(1) AUTHORITY
TO
CONDUCT
FACILITY-WIDE
PILOT PROGRAM.—The Secretary of Defense may con-
duct a pilot program, to be known as the ‘‘defense fa-
cility-wide pilot program’’, for the purpose of deter-
mining the potential for increasing the efficiency and
effectiveness of the acquisition process in facilities.
(2) SCOPE
OF
PROGRAM.—At a facility des-
ignated as a participant in the pilot program, the
pilot program shall consist of the following:
(A) All contracts and subcontracts for de-
fense supplies and services that are performed at
the facility.
(B) All contracts and subcontracts per-
formed elsewhere that the Secretary determines
are directly and substantially related to the pro-
duction of defense supplies and services at the fa-
cility and are necessary for the pilot program.
(3) DESIGNATION
OF
PARTICIPATING
FACILI-
TIES.—(A) The Secretary may designate up to three
facilities as participants in the defense facility-wide
pilot program.
(B) Subject to paragraph (7), the Secretary may
determine the scope and duration of a designation
made under this paragraph.
(4) CRITERIA FOR DESIGNATION.—The Secretary
may designate a facility under paragraph (3) only if
the Secretary determines that all or substantially all
of the contracts to be awarded and performed at the
facility after the designation, and all or substantially
all of the subcontracts to be awarded under those con-
tracts and performed at the facility after the designa-
tion, will be—
(A) for the production of supplies or services
on a firm-fixed price basis;
(B) awarded without requiring the contrac-
tors or subcontractors to provide certified cost or
pricing data pursuant to section 2306a of title
10, United States Code; and
(C) awarded and administered without the
application of cost accounting standards under
section 26(f) of the Office of Federal Procurement
Policy Act (41 U.S.C. 422(f)).
(5) 
EXEMPTION
FROM
CERTAIN
REQUIRE-
MENTS.—In the case of a contract or subcontract that
is to be performed at a facility designated for partici-
pation in the defense facility-wide pilot program and
that is subject to section 2306a of title 10, United
States Code, or section 26(f) of the Office of Federal
Procurement Policy Act (41 U.S.C. 422(f)), the Sec-
retary of Defense may exempt such contract or sub-
contract from the requirement to obtain certified cost
or pricing data under such section 2306a or the re-
quirement to apply mandatory cost accounting stand-
ards under such section 26(f) if the Secretary deter-
mines that the contract or subcontract—
(A) is within the scope of the pilot program
(as described in paragraph (2)); and
(B) is fairly and reasonably priced based
on information other than certified cost and
pricing data.
(6) SPECIAL
AUTHORITY.—The authority pro-
vided under paragraph (1) may include authority for
the Secretary of Defense—
(A) to apply any amendment or repeal of a
provision of law made in this Act to the pilot
program before the effective date of such amend-
ment or repeal; and
(B) to apply to a procurement of items
other than commercial items under such pro-
gram—
(i) any authority provided in the Fed-
eral Acquisition Streamlining Act of 1994
(Public Law 103–355) (or in an amend-
ment made by a provision of that Act) to
waive a provision of law in the case of com-
mercial items, and
(ii) any exception applicable under
this Act or the Federal Acquisition Stream-
lining Act of 1994 (Public Law 103–355)
(or an amendment made by a provision of
either Act) in the case of commercial items,
before the effective date of such provision (or
amendment) to the extent that the Secretary de-
termines necessary to test the application of such
waiver or exception to procurements of items
other than commercial items.
(7) APPLICABILITY.—(A) Paragraphs (5) and
(6) apply with respect to—
(i) a contract that is awarded or modified
during the period described in subparagraph
(B); and
(ii) a contract that is awarded before the be-
ginning of such period and is to be performed
(or may be performed), in whole or in part, dur-
ing such period.
(B) The period referred to in subparagraph (A)
is the period that begins 45 days after the date of the
enactment of this Act and ends on September 30,
1998.
(8) COMMERCIAL
PRACTICES
ENCOURAGED.—
With respect to contracts and subcontracts within the
scope of the defense facility-wide pilot program, the
Secretary of Defense may, to the extent the Secretary
determines appropriate and in accordance with the
law, adopt commercial practices in the administra-
tion of contracts and subcontracts. Such commercial
practices may include elimination of Government
audit and access to records provisions; incorporation
of commercial oversight, inspection, and acceptance
procedures; use of alternative dispute resolution tech-
niques (including arbitration); and elimination of
contract provisions authorizing the Government to
make unilateral changes to contracts.
SEC. 317. VALUE ENGINEERING FOR FEDERAL AGENCIES.
(a) USE OF VALUE ENGINEERING.—The Office of Fed-
eral Procurement Policy Act (41 U.S.C. 401 et seq.), as
amended by section 310, is further amended by adding at
the end the following new section:
‘‘SEC. 37. VALUE ENGINEERING.
‘‘(a) IN GENERAL.—Each executive agency shall estab-
lish and maintain effective value engineering procedures
and processes.
‘‘(b) THRESHOLD.—The procedures and processes es-
tablished pursuant to subsection (a) shall be applied to those
programs, projects, systems, and products of an executive
agency that, in a ranking of all programs, projects, systems,
and products of the agency according to greatest dollar
value, are within the highest 20th percentile.
‘‘(c) DEFINITION.—As used in this section, the term
‘value engineering’ means a team effort, performed by
qualified agency or contractor personnel, directed at ana-
lyzing the functions of a program, project, system, product,
item of equipment, building, facility, service, or supply for
the purpose of achieving the essential functions at the lowest
life-cycle cost that is consistent with required or improved
performance, reliability, quality, and safety.’’.
(b) CLERICAL AMENDMENT.—The table of contents for
such Act, contained in section 1(b), is amended by adding
at the end the following new item:
‘‘Sec. 37. Value engineering.’’.
SEC. 318. ACQUISITION WORKFORCE.
(a) ACQUISITION WORKFORCE.—(1) The Office of Fed-
eral Procurement Policy Act (41 U.S.C. 401 et seq.), as
amended by section 317, is further amended by adding at
the end the following new section:
‘‘SEC. 38. ACQUISITION WORKFORCE.
‘‘(a) APPLICABILITY.—This section does not apply to
an executive agency that is subject to chapter 87 of title
10, United States Code.
‘‘(b) MANAGEMENT POLICIES.—
‘‘(1) POLICIES AND PROCEDURES.—The head of
each executive agency, after consultation with the Ad-
ministrator for Federal Procurement Policy, shall es-
tablish policies and procedures for the effective man-
agement (including accession, education, training, ca-
reer development, and performance incentives) of the
acquisition workforce of the agency. The development
of acquisition workforce policies under this section
shall be carried out consistent with the merit system
principles set forth in paragraphs (1) and (2) of sec-
tion 2301(b) of title 5, United States Code.
‘‘(2) UNIFORM IMPLEMENTATION.—The head of
each executive agency shall ensure that, to the maxi-
mum extent practicable, acquisition workforce policies
and procedures established are uniform in their im-
plementation throughout the agency.
‘‘(3) GOVERNMENT-WIDE POLICIES AND EVALUA-
TION.—The Administrator shall issue policies to pro-
mote uniform implementation of this section by exec-
utive agencies, with due regard for differences in pro-
gram requirements among agencies that may be ap-
propriate and warranted in view of the agency mis-
sion. The Administrator shall coordinate with the
Deputy Director for Management of the Office of
Management and Budget to ensure that such policies
are consistent with the policies and procedures estab-
lished and enhanced system of incentives provided
pursuant to section 5051(c) of the Federal Acquisition
Streamlining Act of 1994 (41 U.S.C. 263 note). The
Administrator shall evaluate the implementation of
the provisions of this section by executive agencies.
‘‘(c) SENIOR PROCUREMENT EXECUTIVE AUTHORITIES
AND RESPONSIBILITIES.—Subject to the authority, direc-
tion, and control of the head of an executive agency, the
senior procurement executive of the agency shall carry out
all powers, functions, and duties of the head of the agency
with respect to implementation of this section. The senior
procurement executive shall ensure that the policies of the
head of the executive agency established in accordance with
this section are implemented throughout the agency.
‘‘(d) MANAGEMENT INFORMATION SYSTEMS.—The Ad-
ministrator shall ensure that the heads of executive agencies
collect and maintain standardized information on the ac-
quisition workforce related to implementation of this sec-
tion. To the maximum extent practicable, such data re-
quirements shall conform to standards established by the Of-
fice of Personnel Management for the Central Personnel
Data File.
‘‘(e) ACQUISITION WORKFORCE.—The programs estab-
lished by this section shall apply to all employees in the
General Schedule Contracting series (GS–1102) and the
General Schedule Purchasing series (GS–1105), and to any
employees regardless of series who have been appointed as
contracting officers whose authority exceeds the micro-pur-
chase threshold, as that term is defined in section 32(g).
The head of each executive agency may include employees
in other series who perform acquisition or acquisition-relat-
ed functions.
‘‘(f) CAREER DEVELOPMENT.—
‘‘(1) CAREER PATHS.—The head of each execu-
tive agency shall ensure that appropriate career paths
for personnel who desire to pursue careers in acquisi-
tion are identified in terms of the education, training,
experience, and assignments necessary for career pro-
gression to the most senior acquisition positions. The
head of each executive agency shall make information
available on such career paths.
‘‘(2) CRITICAL DUTIES AND TASKS.—For each
career path, the head of each executive agency shall
identify the critical acquisition-related duties and
tasks in which, at minimum, employees of the agency
in the career path shall be competent to perform at
full performance grade levels. For this purpose, the
head of the executive agency shall provide appropriate
coverage of the critical duties and tasks identified by
the Director of the Federal Acquisition Institute.
‘‘(3) MANDATORY TRAINING AND EDUCATION.—
For each career path, the head of each executive agen-
cy shall establish requirements for the completion of
course work and related on-the-job training in the
critical acquisition-related duties and tasks of the ca-
reer path. The head of each executive agency shall also
encourage employees to maintain the currency of their
acquisition knowledge and generally enhance their
knowledge of related acquisition management dis-
ciplines through academic programs and other self-de-
velopmental activities.
‘‘(4) PERFORMANCE INCENTIVES.—The head of
each executive agency, acting through the senior pro-
curement executive for the agency, shall provide for
an enhanced system of incentives for the encourage-
ment of excellence in the acquisition workforce which
rewards performance of employees that contribute to
achieving the agency’s performance goals. The system
of incentives shall include provisions that—
‘‘(A) relate pay to performance;
‘‘(B) provide for consideration, in personnel
evaluations and promotion decisions, of the ex-
tent to which the performance of personnel con-
tributed to achieving the agency’s performance
goals; and
‘‘(C) provide pay and promotion incentives
to be awarded, and unfavorable personnel actions
to be imposed, under the system on the basis of
the contributions of personnel to achieving the
agency’s performance goals.
‘‘(g) QUALIFICATION REQUIREMENTS.—
‘‘(1) GENERAL SCHEDULE CONTRACTING SERIES
(GS–1102).—
‘‘(A) ENTRY LEVEL QUALIFICATIONS.—The
Director of the Office of Personnel Management
shall require that, after October 1, 1996, a per-
son may not be appointed to a position in the
GS–1102 occupational series unless the person—
‘‘(i) has received a baccalaureate degree
from an accredited educational institution
authorized to grant baccalaureate degrees,
‘‘(ii) has completed at least 24 semester
credit hours (or the equivalent) of study
from an accredited institution of higher
education in any of the following dis-
ciplines: accounting, business finance, law,
contracts, purchasing, economics, industrial
management, marketing, quantitative meth-
ods, or organization and management, or
‘‘(iii) has passed a written test deter-
mined by the Administrator for Federal
Procurement Policy, after consultation with
the Director of the Office of Personnel Man-
agement, to demonstrate the judgmental
skills necessary for positions in this series.
‘‘(B) QUALIFICATIONS
FOR
SENIOR
CON-
TRACTING POSITIONS.—The Director of the Office
of Personnel Management shall require that,
after October 1, 1996, persons may be appointed
to positions at and above full performance grade
levels in the GS–1102 occupational series only if
those persons—
‘‘(i) have satisfied the educational re-
quirement either of subparagraph (A)(i) or
(A)(ii),
‘‘(ii) have successfully completed all
training required for the position under
subsection (f)(3), and
‘‘(iii) have satisfied experience and
other requirements established by the Direc-
tor for such positions.
However, this requirement shall apply to persons
employed on October 1, 1996, in GS–1102 posi-
tions at those grade levels only as a prerequisite
for promotion to a GS–1102 position at a higher
grade.
‘‘(2) GENERAL SCHEDULE PURCHASING SERIES
(GS–1105).—The Director of the Office of Personnel
Management shall require that, after October 1, 1996,
a person may not be appointed to a position in the
GS–1105 occupational series unless the person—
‘‘(A) has successfully completed 2 years of
course work from an accredited educational in-
stitution authorized to grant degrees, or
‘‘(B) has passed a written test determined
by the Administrator for Federal Procurement
Policy, after consultation with the Director of the
Office of Personnel Management, to demonstrate
the judgmental skills necessary for positions in
this series.
‘‘(3) CONTRACTING OFFICERS.—The head of each
executive agency shall require that, beginning after
October 1, 1996, a person may be appointed as a con-
tracting officer with authority to award or admin-
ister contracts for amounts above the micro-purchase
threshold, as that term is defined in section 32(g),
only if the person—
‘‘(A) has successfully completed all manda-
tory training required of an employee in an
equivalent GS–1102 or 1105 position under sub-
section (f)(3); and
‘‘(B) meets experience and other require-
ments established by the head of the agency,
based on the dollar value and complexity of the
contracts that the employee will be authorized to
award or administer under the appointment as
a contracting officer.
‘‘(4) EXCEPTIONS.—(A) The requirements set
forth in paragraphs (1) and (2), as applicable, shall
not apply to any person employed in the GS–1102 or
GS–1105 series on October 1, 1996.
‘‘(B) Employees of an executive agency who do
not satisfy the full qualification requirements for ap-
pointment as a contracting officer under paragraph
(3) may be appointed as a contracting officer for a
temporary period of time under procedures established
by the agency head. The procedures shall—
‘‘(i) require that the person have completed
a significant portion of the required training,
‘‘(ii) require a plan be established for the
balance of the required training,
‘‘(iii) specify a period of time for comple-
tion of the training, and
‘‘(iv) include provisions for withdrawing or
terminating the appointment prior to the sched-
uled expiration date, where appropriate.
‘‘(5) WAIVER.—The senior procurement executive
for an executive agency may waive any or all of the
qualification requirements of paragraphs (1) and (2)
for a person if the person possesses significant poten-
tial for advancement to levels of greater responsibility
and authority, based on demonstrated job perform-
ance and qualifying experience. This authority may
not be redelegated by the senior procurement execu-
tive. With respect to each waiver granted under this
subsection, the senior procurement executive shall set
forth in writing the rationale for the decision to
waive such requirements.
‘‘(h) PROGRAM ESTABLISHMENT AND IMPLEMENTA-
TION.—
‘‘(1) FUNDING LEVELS.—(A) The head of an ex-
ecutive agency shall request in the budget for a fiscal
year for the agency—
‘‘(i) for education and training under this
section, an amount equal to no less than 2.5 per-
cent of the base aggregate salary cost of the ac-
quisition workforce subject to this section for that
fiscal year; and
‘‘(ii) 
for 
salaries 
of 
the 
acquisition
workforce, an amount equal to no more than
97.5 percent of such base aggregate salary cost.
‘‘(B) The head of the executive agency shall set
forth separately the funding levels requested in the
budget justification documents submitted in support
of the President’s budget submitted to Congress under
section 1105 of title 31, United States Code.
‘‘(C) Funds appropriated for education and
training under this section may not be obligated or
used for any other purpose.
‘‘(2) INTERAGENCY AGREEMENTS.—The head of
an executive agency may enter into a written agree-
ment with another agency to participate in programs
established under this section on a reimbursable basis.
‘‘(3) TUITION ASSISTANCE.—Notwithstanding the
prohibition in section 4107(b) of title 5, United States
Code, the head of each executive agency may provide
for tuition reimbursement and education (including a
full-time course of study leading to a degree) for ac-
quisition personnel in the agency related to the pur-
poses of this section.
‘‘(4) INTERN PROGRAMS.—The head of each exec-
utive agency may establish intern programs in order
to recruit highly qualified and talented individuals
and provide them with opportunities for accelerated
promotions, career broadening assignments, and spec-
ified training for advancement to senior acquisition
positions. For such programs, the head of an executive
agency, without regard to the provisions of title 5,
United States Code, may appoint individuals to com-
petitive GS–5, GS–7, or GS–9 positions in the Gen-
eral Schedule Contracting series (GS–1102) who have
graduated from baccalaureate or master’s programs
in purchasing or contracting from accredited edu-
cational institutions authorized to grant bacca-
laureate and master’s degrees.
‘‘(5) COOPERATIVE EDUCATION PROGRAM.—The
head of each executive agency may establish an agen-
cywide cooperative education credit program for ac-
quisition positions. Under the program, the head of
the executive agency may enter into cooperative ar-
rangements with one or more accredited institutions
of higher education which provide for such institu-
tions to grant undergraduate credit for work per-
formed in such position.
‘‘(6) SCHOLARSHIP PROGRAM.—
‘‘(A) ESTABLISHMENT.—Where deemed ap-
propriate, the head of each executive agency may
establish a scholarship program for the purpose
of qualifying individuals for acquisition posi-
tions in the agency.
‘‘(B) ELIGIBILITY.—To be eligible to par-
ticipate in a scholarship program established
under this paragraph by an executive agency, an
individual must—
‘‘(i) be accepted for enrollment or be
currently enrolled as a full-time student at
an accredited educational institution au-
thorized to grant baccalaureate or graduate
degrees (as appropriate);
‘‘(ii) be pursuing a course of education
that leads toward completion of a bachelor’s,
master’s, or doctor’s degree (as appropriate)
in a qualifying field of study, as determined
by the head of the agency;
‘‘(iii) sign an agreement described in
subparagraph (C) under which the partici-
pant agrees to serve a period of obligated
service in the agency in an acquisition posi-
tion in return for payment of educational
assistance as provided in the agreement;
and
‘‘(iv) meet such other requirements as
the head of the agency prescribes.
‘‘(C) AGREEMENT.—An agreement between
the head of an executive agency and a partici-
pant in a scholarship program established under
this paragraph shall be in writing, shall be
signed by the participant, and shall include the
following provisions:
‘‘(i) The agreement of the head of the
agency to provide the participant with edu-
cational assistance for a specified number of
school years, not to exceed 4, during which
the participant is pursuing a course of edu-
cation in a qualifying field of study. The
assistance may include payment of tuition,
fees, books, laboratory expenses, and a sti-
pend.
‘‘(ii) The participant’s agreement—
‘‘(I) to accept such educational as-
sistance,
‘‘(II) to maintain enrollment and
attendance in the course of education
until completed,
‘‘(III) while enrolled in such
course, to maintain an acceptable level
of academic standing (as prescribed by
the head of the agency), and
‘‘(IV) after completion of the
course of education, to serve as a full-
time employee in an acquisition posi-
tion in the agency for a period of time
of one calendar year for each school
year or part thereof for which the par-
ticipant was provided a scholarship
under the program.
‘‘(D) REPAYMENT.—(i) Any person partici-
pating in a program established under this
paragraph shall agree to pay to the United
States the total amount of educational assistance
provided to the person under the program if the
person is voluntarily separated from the agency
or involuntarily separated for cause from the
agency before the end of the period for which the
person has agreed to continue in the service of
the agency in an acquisition position.
‘‘(ii) If an employee fails to fulfill the agree-
ment to pay to the Government the total amount
of educational assistance provided to the person
under the program, a sum equal to the amount
of the educational assistance may be recovered by
the Government from the employee (or the estate
of the employee) by setoff against accrued pay,
compensation, amount of retirement credit, or
other amount due the employee from the Govern-
ment; and by such other method as is provided
by law for the recovery of amounts owing to the
Government.
‘‘(iii) The head of an executive agency may
waive in whole or in part a repayment required
under this paragraph if the head of the agency
determines the recovery would be against equity
and good conscience or would be contrary to the
best interests of the United States.
‘‘(E) TERMINATION OF AGREEMENT.—There
shall be no requirement that a position be offered
to a person after such person successfully com-
pletes a course of education required by an
agreement under this paragraph. If no position
is offered, the agreement shall be considered ter-
minated.’’.
(2) The table of contents for such Act, contained in
section 1(b), is amended by adding at the end the following
new item:
‘‘Sec. 38. Acquisition workforce.’’.
(b) ADDITIONAL AMENDMENTS.—Section 6(d)(5) of the
Office of Federal Procurement Policy Act (41 U.S.C. 405),
is amended—
(1) in subparagraph (A), by striking out ‘‘Gov-
ernment-wide career management programs for a pro-
fessional procurement work force’’ and inserting in
lieu thereof ‘‘the development of a professional acqui-
sition workforce Government-wide’’;
(2) in subparagraph (B)—
(A) by striking out ‘‘procurement by the’’
and inserting in lieu thereof ‘‘acquisition by
the’’; and
(B) by striking out ‘‘and’’ at the end of the
subparagraph; and
(3) by striking out subparagraph (C) and insert-
ing in lieu thereof the following:
‘‘(C) administer the provisions of section
38;
‘‘(D) collect data and analyze acquisition
workforce data from the Office of Personnel Man-
agement, the heads of executive agencies, and,
through periodic surveys, from individual em-
ployees;
‘‘(E) periodically analyze acquisition career
fields to identify critical competencies, duties,
tasks, and related academic prerequisites, skills,
and knowledge;
‘‘(F) coordinate and assist agencies in iden-
tifying and recruiting highly qualified can-
didates for acquisition fields;
‘‘(G) develop instructional materials for ac-
quisition personnel in coordination with private
and public acquisition colleges and training fa-
cilities;
100
‘‘(H) evaluate the effectiveness of training
and career development programs for acquisition
personnel;
‘‘(I) promote the establishment and utiliza-
tion of academic programs by colleges and uni-
versities in acquisition fields;
‘‘(J) facilitate, to the extent requested by
agencies, interagency intern and training pro-
grams; and
‘‘(K) perform other career management or
research functions as directed by the Adminis-
trator.’’.
TITLE IV—STREAMLINING OF
DISPUTE RESOLUTION
Subtitle A—General Provisions
SEC. 401. DEFINITIONS.
(a) IN GENERAL.—The Office of Federal Procurement
Policy Act (41 U.S.C. 401 et seq.) is amended by adding
at the end the following:
‘‘TITLE II—DISPUTE
RESOLUTION
‘‘Subtitle A—General Provisions
‘‘SEC. 201. DEFINITIONS.
‘‘In this title:
101
‘‘(1) The term ‘Defense Board’ means the De-
partment of Defense Board of Contract Appeals estab-
lished pursuant to section 8(a) of the Contract Dis-
putes Act of 1978 (41 U.S.C. 607).
‘‘(2) The term ‘Civilian Board’ means the Civil-
ian Board of Contract Appeals established pursuant
to section 8(b) of the Contract Disputes Act of 1978
(41 U.S.C. 607).
‘‘(3) The term ‘Board judge’ means a member of
the Defense Board or the Civilian Board, as the case
may be.
‘‘(4) The term ‘Chairman’ means the Chairman
of the Defense Board or the Civilian Board, as the
case may be.
‘‘(5) The term ‘Board concerned’ means—
‘‘(A) the Defense Board with respect to mat-
ters within its jurisdiction; and
‘‘(B) the Civilian Board with respect to
matters within its jurisdiction.
‘‘(6) The term ‘executive agency’—
‘‘(A) for purposes of contract disputes under
section 213—
‘‘(i) with respect to contract disputes
under the jurisdiction of the Defense Board,
means the Department of Defense, the De-
102
partment of the Army, the Department of
the Navy, or the Department of the Air
Force; and
‘‘(ii) with respect to contract disputes
under the jurisdiction of the Civilian
Board, has the meaning given by section
2(2) of the Contract Disputes Act of 1978
(41 U.S.C. 601(2)) except that the term does
not include the Department of Defense, the
Department of the Army, the Department of
the Navy, and the Department of the Air
Force; and
‘‘(B) for purposes of protests under section
214—
‘‘(i) with respect to protests under the
jurisdiction of the Defense Board, means the
Department of Defense, the Department of
the Army, the Department of the Navy, or
the Department of the Air Force; and
‘‘(ii) with respect to protests under the
jurisdiction of the Civilian Board, has the
meaning given by section 4(1) of this Act
except that the term does not include the
Department of Defense, the Department of
103
the Army, the Department of the Navy, and
the Department of the Air Force.
‘‘(7) The term ‘alternative means of dispute reso-
lution’ has the meaning given by section 571(3) of
title 5, United States Code.
‘‘(8) The term ‘protest’ means a written objection
by an interested party to any of the following:
‘‘(A) A solicitation or other request by an
executive agency for offers for a contract for the
procurement of property or services.
‘‘(B) The cancellation of such a solicitation
or other request.
‘‘(C) An award or proposed award of such
a contract.
‘‘(D) A termination or cancellation of an
award of such a contract, if the written objection
contains an allegation that the termination or
cancellation is based in whole or in part on im-
proprieties concerning the award of the contract.
‘‘(9) The term ‘interested party’, with respect to
a contract or a solicitation or other request for offers,
means an actual or prospective bidder or offeror
whose direct economic interest would be affected by
the award of the contract or by failure to award the
contract.
104
‘‘(10) The term ‘prevailing party’, with respect
to a determination of the Board under section
214(h)(2) that a decision of a contracting officer vio-
lates a statute or regulation, means a party that dem-
onstrated such violation.’’.
(b) CONFORMING AMENDMENTS.—The Office of Fed-
eral Procurement Policy Act (41 U.S.C. 401 et seq.) is fur-
ther amended—
(1) by inserting the following before section 1:
‘‘TITLE 
I—FEDERAL 
PROCURE-
MENT POLICY GENERALLY’’;
and
(2) in section 4, by striking out ‘‘As used in this
Act:’’ and inserting in lieu thereof ‘‘Except as other-
wise specifically provided, as used in this Act:’’.
Subtitle B—Establishment of Civil-
ian and Defense Boards of Con-
tract Appeals
SEC. 411. ESTABLISHMENT.
Subsections (a) and (b) of section 8 of the Contract
Disputes Act of 1978 (41 U.S.C. 607) are amended to read
as follows:
‘‘(a) There is established in the Department of Defense
a board of contract appeals to be known as the Department
of Defense Board of Contract Appeals.
105
‘‘(b) There is established in the General Services Ad-
ministration a board of contract appeals to be known as
the Civilian Board of Contract Appeals.’’.
SEC. 412. MEMBERSHIP.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 401, is further
amended by adding at the end the following:
‘‘SEC. 202. MEMBERSHIP.
‘‘(a) APPOINTMENT.—(1)(A) The Defense Board shall
consist of judges appointed by the Chairman, without re-
gard to political affiliation and solely on the basis of the
professional qualifications required to perform the duties
and responsibilities of a Defense Board judge, from a reg-
ister of applicants maintained by the Defense Board.
‘‘(B) The Civilian Board shall consist of judges ap-
pointed by the Chairman, without regard to political affili-
ation and solely on the basis of the professional qualifica-
tions required to perform the duties and responsibilities of
a Civilian Board judge, from a register of applicants main-
tained by the Civilian Board.
‘‘(2) The members of the Defense Board and the Civil-
ian Board shall be selected and appointed to serve in the
same manner as administrative law judges appointed pur-
suant to section 3105 of title 5, United States Code, with
an additional requirement that such members shall have
106
had not fewer than five years of experience in public con-
tract law.
‘‘(3) Notwithstanding paragraph (2) and subject to
subsection (b), the following persons shall serve as Board
judges:
‘‘(A) For the Defense Board, any full-time mem-
ber of the Armed Services Board of Contract Appeals
serving as such on the day before the effective date of
this title.
‘‘(B) For the Civilian Board, any full-time mem-
ber of any agency board of contract appeals other
than the Armed Services Board of Contract Appeals
serving as such on the day before the effective date of
this title.
‘‘(C) For either the Defense Board or the Civil-
ian Board, any person serving on the day before the
date of the enactment of this title in a position at a
level of assistant general counsel or higher with au-
thority delegated from the Comptroller General to de-
cide bid protests under subchapter V of chapter 35 of
title 31, United States Code.
‘‘(b) REMOVAL.—Members of the Defense Board and
the Civilian Board shall be subject to removal in the same
manner as administrative law judges, as provided in sec-
tion 7521 of title 5, United States Code.
107
‘‘(c) COMPENSATION.—Compensation for the Chair-
man of the Defense Board and the Chairman of the Civilian
Board and all other members of each Board shall be deter-
mined under section 5372a of title 5, United States Code.’’.
SEC. 413. CHAIRMAN.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 412, is further
amended by adding at the end the following:
‘‘SEC. 203. CHAIRMAN.
‘‘(a) DESIGNATION.—(1)(A) The Chairman of the De-
fense Board shall be designated by the Secretary of Defense
to serve for a term of five years. The Secretary shall select
the Chairman from among sitting judges each of whom has
had at least five years of service—
‘‘(i) as a member of the Armed Services Board
of Contract Appeals; or
‘‘(ii) in a position at a level of assistant general
counsel or higher with authority delegated from the
Comptroller General to decide bid protests under sub-
chapter V of chapter 35 of title 31, United States
Code (as in effect on the day before the effective date
of this title).
‘‘(B) The Chairman of the Civilian Board shall be des-
ignated by the Administrator of General Services to serve
for a term of five years. The Administrator shall select the
108
Chairman from among sitting judges each of whom has had
at least five years of service—
‘‘(i) as a member of an agency board of contract
appeals other than the Armed Services Board of Con-
tract Appeals; or
‘‘(ii) in a position at a level of assistant general
counsel or higher with authority delegated from the
Comptroller General to decide bid protests under sub-
chapter V of chapter 35 of title 31, United States
Code (as in effect on the day before the effective date
of this title).
‘‘(2) A Chairman of a Board may continue to serve
after the expiration of the Chairman’s term until a succes-
sor has taken office. A Chairman may be reappointed any
number of times.
‘‘(b) RESPONSIBILITIES.—The Chairman of the De-
fense Board or the Civilian Board, as the case may be, shall
be responsible on behalf of the Board for the executive and
administrative operation of the Board, including functions
of the Board with respect to the following:
‘‘(1) The selection, appointment, and fixing of
the compensation of such personnel, pursuant to part
III of title 5, United States Code, as the Chairman
considers necessary or appropriate, including a Clerk
109
of the Board, a General Counsel, and clerical and
legal assistance for Board judges.
‘‘(2) The supervision of personnel employed by or
assigned to the Board, and the distribution of work
among such personnel.
‘‘(3) The operation of an Office of the Clerk of
the Board, including the receipt of all filings made
with the Board, the assignment of cases, and the
maintenance of all records of the Board.
‘‘(4) The prescription of such rules and regula-
tions as the Chairman considers necessary or appro-
priate for the administration and management of the
Board.
‘‘(c) VICE CHAIRMEN.—The Chairman of the Defense
Board or the Civilian Board, as the case may be, may des-
ignate up to four other Board judges as Vice Chairmen. The
Chairman may divide the Board into two divisions, one
for handling contract disputes and one for handling pro-
tests, and, if such division is made, shall assign a Vice
Chairman to head each division. The Vice Chairmen, in
the order designated by the Chairman, shall act in the place
and stead of the Chairman during the absence of the Chair-
man.’’.
110
SEC. 414. RULEMAKING AUTHORITY.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 413, is further
amended by adding at the end the following:
‘‘SEC. 204. RULEMAKING AUTHORITY.
‘‘The Chairman of the Defense Board and the Chair-
man of the Civilian Board shall jointly issue and main-
tain—
‘‘(1) such procedural rules and regulations as are
necessary to the exercise of the functions of the Boards
under sections 213 and 214; and
‘‘(2) statements of policy of general applicability
with respect to such functions.’’.
SEC. 415. AUTHORIZATION OF APPROPRIATIONS.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 414, is further
amended by adding at the end the following:
‘‘SEC. 205. AUTHORIZATION OF APPROPRIATIONS.
‘‘There are authorized to be appropriated for fiscal
year 1997 and each succeeding fiscal year such sums as
may be necessary to carry out the provisions of this title.
Funds for the activities of each Board shall be separately
appropriated for such purpose. Funds appropriate pursu-
ant to this section shall remain available until expended.’’.
111
Subtitle C—Functions of Defense
and Civilian Boards of Contract
Appeals
SEC. 421. ALTERNATIVE DISPUTE RESOLUTION SERVICES.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 415, is further
amended by adding at the end the following:
‘‘Subtitle B—Functions of the De-
fense and Civilian Boards of
Contract Appeals
‘‘SEC. 211. ALTERNATIVE DISPUTE RESOLUTION SERVICES.
‘‘(a) REQUIREMENT TO PROVIDE SERVICES UPON RE-
QUEST.—The Defense Board and the Civilian Board shall
each provide alternative means of dispute resolution for any
disagreement regarding a contract or prospective contract
of an executive agency upon the request of all parties to
the disagreement.
‘‘(b) PERSONNEL QUALIFIED TO ACT.—Each Board
judge and each attorney employed by the Board concerned
shall be considered to be qualified to act for the purpose
of conducting alternative means of dispute resolution under
this section.
‘‘(c) 
SERVICES
TO
BE
PROVIDED
WITHOUT
CHARGE.—Any services provided by the Board concerned
112
or any Board judge or employee pursuant to this section
shall be provided without charge.
‘‘(d) RECUSAL OF CERTAIN PERSONNEL UPON RE-
QUEST.—In the event that a matter which is presented to
the Board concerned for alternative means of dispute resolu-
tion, pursuant to this section, later becomes the subject of
formal proceedings before such Board, any Board judge or
employee who was involved in the alternative means of dis-
pute resolution shall, if requested by any party to the for-
mal proceeding, take no part in that proceeding.’’.
SEC. 422. ALTERNATIVE DISPUTE RESOLUTION OF DIS-
PUTES 
AND 
PROTESTS 
SUBMITTED 
TO
BOARDS.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 421, is further
amended by adding at the end the following:
‘‘SEC. 212. ALTERNATIVE DISPUTE RESOLUTION OF DIS-
PUTES 
AND 
PROTESTS 
SUBMITTED 
TO
BOARDS.
‘‘With reasonable promptness after the submission to
the Defense Board or the Civilian Board of a contract dis-
pute under section 213 or a bid protest under section 214,
a Board judge to whom the contract dispute or protest is
assigned shall request the parties to meet with a Board
judge, or an attorney employed by the Board concerned, for
113
the purpose of attempting to resolve the dispute or protest
through alternative means of dispute resolution. Formal
proceedings in the appeal shall then be suspended until such
time as any party or a Board judge to whom the dispute
or protest is assigned determines that alternative means of
dispute resolution are not appropriate for resolution of the
dispute or protest.’’.
SEC. 423. CONTRACT DISPUTES.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 422, is further
amended by adding at the end the following:
‘‘SEC. 213. CONTRACT DISPUTES.
‘‘The Defense Board shall have jurisdiction as provided
by section 8(a) of the Contract Disputes Act of 1978 (41
U.S.C. 601–613). The Civilian Board shall have jurisdic-
tion as provided by section 8(b) of such Act.’’.
SEC. 424. PROTESTS.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 423, is further
amended by adding at the end the following:
‘‘SEC. 214. PROTESTS.
‘‘(a) REVIEW REQUIRED UPON REQUEST.—Upon re-
quest of an interested party in connection with any pro-
curement conducted by an executive agency, the Defense
Board or the Civilian Board, as the case may be, shall re-
114
view, as provided in this section, any decision by the head
of the executive agency alleged to violate a statute or regula-
tion. A decision or order of the Board concerned pursuant
to this section shall not be subject to interlocutory appeal
or review.
‘‘(b) STANDARD OF REVIEW.—In deciding a protest,
the Board concerned may consider all evidence that is rel-
evant to the decision under protest. It shall accord a pre-
sumption of correctness to the decision under protest. The
protester may rebut such presumption by showing, by a pre-
ponderance of the evidence, that the decision was arbitrary
or capricious or violated a statute or regulation.
‘‘(c) NOTIFICATION.—Within one day after the receipt
of a protest, the Board concerned shall notify the executive
agency involved of the protest.
‘‘(d) SUSPENSION OF CONTRACT AWARD.—(1) Except
as provided in paragraph (2) of this subsection, a contract
may not be awarded in any procurement after the executive
agency has received notice of a protest with respect to such
procurement from the Board concerned and while the pro-
test is pending.
‘‘(2) The head of the procuring activity responsible for
award of a contract may authorize the award of the con-
tract (notwithstanding a protest of which the executive
agency has notice under this section)—
115
‘‘(A) upon a written finding that urgent and
compelling circumstances which significantly affect
interests of the United States will not permit waiting
for the decision of the Board concerned under this sec-
tion; and
‘‘(B) after the Board concerned is advised of that
finding.
‘‘(3) A finding may not be made under paragraph
(2)(A) of this subsection unless the award of the contract
is otherwise likely to occur within 30 days after the making
of such finding.
‘‘(4) The suspension of the award under paragraph (1)
shall not preclude the executive agency concerned from con-
tinuing the procurement process up to but not including
the award of the contract.
‘‘(e) SUSPENSION OF CONTRACT PERFORMANCE.—(1)
A contractor awarded an executive agency contract may,
during the period described in paragraph (4), begin per-
formance of the contract and engage in any related activi-
ties that result in obligations being incurred by the United
States under the contract unless the contracting officer re-
sponsible for the award of the contract withholds authoriza-
tion to proceed with performance of the contract.
‘‘(2) The contracting officer may withhold an author-
ization to proceed with performance of the contract during
116
the period described in paragraph (4) if the contracting of-
ficer determines in writing that—
‘‘(A) a protest is likely to be filed; and
‘‘(B) the immediate performance of the contract
is not in the best interests of the United States.
‘‘(3)(A) If the executive agency awarding the contract
receives notice of a protest in accordance with this section
during the period described in paragraph (4)—
‘‘(i) the contracting officer may not authorize
performance of the contract to begin while the protest
is pending; or
‘‘(ii) if authorization for contract performance to
proceed was not withheld in accordance with para-
graph (2) before receipt of the notice, the contracting
officer shall immediately direct the contractor to cease
performance under the contract and to suspend any
related activities that may result in additional obli-
gations being incurred by the United States under
that contract.
‘‘(B) Performance and related activities suspended
pursuant to subparagraph (A)(ii) by reason of a protest
may not be resumed while the protest is pending.
‘‘(C) The head of the procuring activity may authorize
the performance of the contract (notwithstanding a protest
117
of which the executive agency has notice under this sec-
tion)—
‘‘(i) upon a written finding that urgent and
compelling circumstances that significantly affect in-
terests of the United States will not permit waiting
for the decision concerning the protest by the Board
concerned; and
‘‘(ii) after the Board concerned is notified of that
finding.
‘‘(4) The period referred to in paragraphs (2) and
(3)(A), with respect to a contract, is the period beginning
on the date of the contract award and ending on the later
of—
‘‘(A) the date that is 10 days after the date of
the contract award; or
‘‘(B) the date that is 5 days after the debriefing
date offered to an unsuccessful offeror for any debrief-
ing that is requested and, when requested, is required.
‘‘(f) The authority of the head of the procuring activity
to make findings and to authorize the award and perform-
ance of contracts under subsections (d) and (e) of this sec-
tion may not be delegated.
‘‘(g) PROCEDURES.—
‘‘(1) PROCEEDINGS AND DISCOVERY.—The Board
concerned shall conduct proceedings and allow such
118
discovery to the minimum extent necessary for the ex-
peditious, fair, and cost-effective resolution of the pro-
test. The Board concerned shall limit discovery to ma-
terial which is relevant to the grounds of protest or
to such affirmative defenses as the executive agency
involved, or any intervenor supporting the agency,
may raise.
‘‘(2) PRIORITY.—The Board concerned shall give
priority to protests filed under this section over con-
tract disputes and alternative dispute services. Except
as provided in paragraph (3), the Board concerned
shall issue its final decision within 65 days after the
date of the filing of the protest, unless the Chairman
determines that the specific and unique circumstances
of the protest require a longer period, in which case
the Board concerned shall issue such decision within
the longer period determined by the Chairman. An
amendment that adds a new ground of protest should
be resolved, to the maximum extent practicable, with-
in the time limits established for resolution of the ini-
tial protest.
‘‘(3) THRESHOLD.—(A) Except as provided in
subparagraph (B), any protest in which the antici-
pated value of the contract award that will result
from the protested procurement, as estimated by the
119
executive agency involved, is less than $20,000,000
shall be considered under simplified rules of proce-
dure. Such simplified rules shall provide that discov-
ery in such protests shall be in writing only. Such
protests shall be decided by a single Board judge. The
Board concerned shall issue its final decision in each
such protest within 40 days after the date of the filing
of the protest, unless the Chairman determines that
the specific and unique circumstances of the protest
require a longer period, in which case the Board con-
cerned shall issue such decision within the longer pe-
riod determined by the Chairman.
‘‘(B) If the Chairman of the Board concerned de-
termines that special and unique circumstances of a
protest that would otherwise qualify for the simplified
rules described in subparagraph (A), including the
complexity of a protest, requires the use of full proce-
dures as described in paragraphs (1) and (2), the
Chairman shall use such procedures in lieu of the
simplified rules described in subparagraph (A).
‘‘(4) CALCULATION OF TIME FOR ADR.—In cal-
culating time for purposes of paragraph (2) or (3) of
this subsection, any days during which proceedings
are suspended for the purpose of attempting to resolve
120
the protest by alternative means of dispute resolution,
up to a maximum of 20 days, shall not be counted.
‘‘(5) DISMISSAL OF FRIVOLOUS PROTESTS.—The
Board concerned may dismiss a protest that the
Board concerned determines—
‘‘(A) is frivolous,
‘‘(B) has been brought or pursued in bad
faith; or
‘‘(C) does not state on its face a valid basis
for protest.
‘‘(6) PAYMENT OF COSTS FOR FRIVOLOUS PRO-
TESTS.—(A) If the Board concerned expressly finds
that a protest or a portion of a protest is frivolous
or has been brought or pursued in bad faith, the
Board concerned shall declare that the protester or
other interested party who joins the protest is liable
to the United States for payment of the costs described
in subparagraph (B) unless—
‘‘(i) special circumstances would make such
payment unjust; or
‘‘(ii) the protester obtains documents or
other information after the protest is filed with
the Board concerned that establishes that the
protest or a portion of the protest is frivolous or
has been brought or pursued in bad faith, and
121
the protester then promptly withdraws the pro-
test or portion of the protest.
‘‘(B) The costs referred to in subparagraph (A)
are all of the costs incurred by the United States of
reviewing the protest, or of reviewing that portion of
the protest for which the finding is made, including
the fees and other expenses (as defined in section
2412(d)(2)(A) of title 28, United States Code) in-
curred by the United States in defending the protest.
‘‘(h) DECISIONS AND CORRECTIVE ACTIONS ON PRO-
TESTS.—(1) In making a decision on protests filed under
this section, the Board concerned shall accord due weight
to the goals of economic and efficient procurement, and
shall take due account of the rule of prejudicial error.
‘‘(2) If the Board concerned determines that a decision
of the head of the executive agency violates a statute or regu-
lation, the Board concerned may order the agency (or its
head) to take such corrective action as the Board concerned
considers appropriate. Corrective action includes requiring
that the executive agency—
‘‘(A) refrain from exercising any of its options
under the contract;
‘‘(B) recompete the contract immediately;
‘‘(C) issue a new solicitation;
‘‘(D) terminate the contract;
122
‘‘(E) award a contract consistent with the re-
quirements of such statute and regulation;
‘‘(F) implement any combination of require-
ments under subparagraphs (A), (B), (C), (D), and
(E); or
‘‘(G) implement such other actions as the Board
concerned determines necessary.
‘‘(3) If the Board concerned orders corrective action
after the contract award, the affected contract shall be pre-
sumed valid as to all goods or services delivered and accept-
ed under the contract before the corrective action was or-
dered.
‘‘(4) Any agreement that provides for the dismissal of
a protest and involves a direct or indirect expenditure of
appropriated funds shall be submitted to the Board con-
cerned and shall be made a part of the public record (subject
to any protective order considered appropriate by the Board
concerned) before dismissal of the protest.
‘‘(i) AUTHORITY
TO
DECLARE
ENTITLEMENT
TO
COSTS.—(1)(A) Whenever the Board concerned determines
that a decision of a contracting officer violates a statute
or regulation, it may, in accordance with section 1304 of
title 31, United States Code, further declare an appropriate
prevailing party to be entitled to the costs of—
123
‘‘(i) filing and pursuing the protest, including
reasonable attorneys’ fees and consultant and expert
witness fees, and
‘‘(ii) bid and proposal preparation.
‘‘(B) No party (other than a small business concern
(within the meaning of section 3(a) of the Small Business
Act)) may be declared entitled under this paragraph to costs
for—
‘‘(i) consultant and expert witness fees that ex-
ceed the highest rate of compensation for expert wit-
nesses paid by the Federal Government, or
‘‘(ii) attorneys’ fees that exceed $150 per hour
unless the Board concerned, on a case by case basis,
determines that an increase in the cost of living or a
special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justi-
fies a higher fee.
‘‘(2) Payment of amounts due from an agency under
paragraph (1) or under the terms of a settlement agreement
under subsection (h)(4) shall be made from the appropria-
tion made by section 1304 of title 31, United States Code,
for the payment of judgments. The executive agency con-
cerned shall reimburse that appropriation account out of
funds available for the procurement.
124
‘‘(j) APPEALS.—A final decision of the Board con-
cerned may be appealed as set forth in section 8(g)(1) of
the Contract Disputes Act of 1978 by the head of the execu-
tive agency concerned and by any interested party, includ-
ing interested parties who intervene in any protest filed
under this section.
‘‘(k) ADDITIONAL RELIEF.—Nothing contained in this
section shall affect the power of the Board concerned to
order any additional relief which it is authorized to provide
under any statute or regulation.
‘‘(l) NONEXCLUSIVITY OF REMEDIES.—Nothing con-
tained in this section shall affect the right of any interested
party to file a protest with the contracting agency or to
file an action in the United States Court of Federal Claims
or in a United States district court.’’.
SEC. 425. APPLICABILITY TO CERTAIN CONTRACTS.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), as amended by section 424, is further
amended by adding at the end the following:
‘‘SEC. 215. APPLICABILITY TO CERTAIN CONTRACTS.
‘‘(a) CONTRACTS AT OR BELOW THE SIMPLIFIED AC-
QUISITION THRESHOLD.—Notwithstanding section 33 of
this Act, the authority conferred on the Defense Board and
the Civilian Board by this title is applicable to contracts
125
in amounts not greater than the simplified acquisition
threshold.
‘‘(b) CONTRACTS FOR COMMERCIAL ITEMS.—Notwith-
standing section 34 of this Act, the authority conferred on
the Defense Board and the Civilian Board by this title is
applicable to contracts for the procurement of commercial
items.’’.
Subtitle D—Repeal of Other Stat-
utes Authorizing Administrative
Protests
SEC. 431. REPEALS.
(a) GSBCA PROVISIONS.—Subsection (f) of the Brooks
Automatic Data Processing Act (section 111 of the Federal
Property and Administrative Services Act of 1949; 40
U.S.C. 759) is repealed.
(b) GAO PROVISIONS.—(1) Subchapter V of chapter
35 of title 31, United States Code (31 U.S.C. 3551–3556)
is repealed.
(2) The analysis for chapter 35 of such title is amended
by striking out the items relating to sections 3551 through
3556 and the heading for subchapter V.
126
Subtitle E—Transfers and Transi-
tional, Savings, and Conforming
Provisions
SEC. 441. TRANSFER AND ALLOCATION OF APPROPRIA-
TIONS AND PERSONNEL.
(a) TRANSFERS.—
(1) ARMED SERVICES BOARD OF CONTRACT AP-
PEALS.—The personnel employed in connection with,
and the assets, liabilities, contracts, property, records,
and unexpended balance of appropriations, authoriza-
tions, allocations, and other funds employed, held,
used, arising from, available to, or to be made avail-
able in connection with the functions vested by law in
the Armed Services Board of Contract Appeals estab-
lished pursuant to section 8 of the Contract Disputes
Act of 1978 (41 U.S.C. 607) (as in effect on the day
before the effective date of this Act), shall be trans-
ferred to the Department of Defense Board of Contract
Appeals for appropriate allocation by the Chairman
of that Board.
(2) OTHER BOARDS OF CONTRACTS APPEALS.—
The personnel employed in connection with, and the
assets, liabilities, contracts, property, records, and un-
expended balance of appropriations, authorizations,
allocations, and other funds employed, held, used,
127
arising from, available to, or to be made available in
connection with the functions vested by law in the
boards of contract appeals established pursuant to sec-
tion 8 of the Contract Disputes Act of 1978 (41
U.S.C. 607) other than the Armed Services Board of
Contract Appeals (as in effect on the day before the
effective date of this Act), shall be transferred to the
Civilian Board of Contract Appeals for appropriate
allocation by the Chairman of that Board.
(3) COMPTROLLER GENERAL.—(A) One-third (as
determined by the Comptroller General) of the person-
nel employed in connection with, and one-third (as
determined by the Comptroller General) of the assets,
liabilities, contracts, property, records, and unex-
pended balance of appropriations, authorizations, al-
locations, and other funds employed, held, used, aris-
ing from, available to, or to be made available in con-
nection with the functions vested by law in the Comp-
troller General pursuant to subchapter V of chapter
35 of title 31, United States Code (as in effect on the
day before the effective date of this Act), shall be
transferred to the Civilian Board of Contract Appeals
for appropriate allocation by the Chairman of that
Board.
128
(B) Two-thirds (as determined by the Comptrol-
ler General) of the personnel employed in connection
with, and two-thirds (as determined by the Comptrol-
ler General) of the assets, liabilities, contracts, prop-
erty, records, and unexpended balance of appropria-
tions, authorizations, allocations, and other funds em-
ployed, held, used, arising from, available to, or to be
made available in connection with the functions vest-
ed by law in the Comptroller General pursuant to
subchapter V of chapter 35 of title 31, United States
Code (as in effect on the day before the effective date
of this Act), shall be transferred to the Department of
Defense Board of Contract Appeals for appropriate
allocation by the Chairman of that Board.
(b) EFFECT ON PERSONNEL.—Personnel transferred
pursuant to this title shall not be separated or reduced in
compensation for one year after such transfer, except for
cause.
(c) REGULATIONS.—(1) The Department of Defense
Board of Contract Appeals and the Civilian Board of Con-
tract Appeals shall each prescribe regulations for the release
of competing employees in a reduction in force that gives
due effect to—
(A) efficiency or performance ratings;
(B) military preference; and
129
(C) tenure of employment.
(2) In prescribing the regulations, the Board concerned
shall provide for military preference in the same manner
as set forth in subchapter I of chapter 35 of title 5, United
States Code.
SEC. 442. TERMINATIONS AND SAVINGS PROVISIONS.
(a) TERMINATION
OF BOARDS
OF CONTRACT AP-
PEALS.—On the effective date of this title, the boards of con-
tract appeals established pursuant to section 8 of the Con-
tract Disputes Act of 1978 (41 U.S.C. 607) (as in effect
on the day before the effective date of this Act) shall termi-
nate.
(b) SAVINGS PROVISION
FOR CONTRACT DISPUTE
MATTERS PENDING BEFORE BOARDS.—(1) The provisions
of this title shall not affect any proceedings (other than bid
protests pending before the board of contract appeals of the
General Services Administration) pending on the effective
date of this Act before any board of contract appeals de-
scribed in subsection (a).
(2) In the case of any such proceedings pending before
the Armed Services Board of Contract Appeals, the proceed-
ings shall be continued by the Department of Defense Board
of Contract Appeals, and orders which were issued in any
such proceeding by the Armed Services Board of Contract
Appeals shall continue in effect until modified, terminated,
130
superseded, or revoked by the Department of Defense Board
of Contract Appeals, by a court of competent jurisdiction,
or by operation of law.
(3) In the case of any such proceedings pending before
an agency board of contract appeals other than the Armed
Services Board of Contract Appeals, the proceedings shall
be continued by the Civilian Board of Contract Appeals,
and orders which were issued in any such proceeding by
the agency board shall continue in effect until modified, ter-
minated, superseded, or revoked by the Civilian Board of
Contract Appeals, by a court of competent jurisdiction, or
by operation of law.
(c) BID PROTEST TRANSITION PROVISIONS.—(1) No
protest may be submitted to the Comptroller General pursu-
ant to section 3553(a) of title 31, United States Code, or
to the board of contract appeals for the General Services
Administration pursuant to the Brooks Automatic Data
Processing Act (40 U.S.C. 759) on or after the effective date
of this Act.
(2) In the case of bid protest proceedings pending be-
fore the board of contract appeals of the General Services
Administration on the effective date of this Act, the proceed-
ings shall be continued by the Civilian Board of Contract
Appeals. The provisions repealed by section 431(a) shall
continue to apply to such proceedings until the Civilian
131
Board of Contract Appeals determines such proceedings
have been completed.
(3) The provisions repealed by section 431(b) shall con-
tinue to apply to proceedings pending on the effective date
of this title before the Comptroller General pursuant to those
provisions, until the Comptroller General determines such
proceedings have been completed.
SEC. 443. CONTRACT DISPUTES AUTHORITY OF BOARDS.
(a) Section 2 of the Contract Disputes Act of 1978 (41
U.S.C. 601) is amended—
(1) by amending paragraph (6) to read as fol-
lows:
‘‘(6) the term ‘Defense Board’ means the Depart-
ment of Defense Board of Contract Appeals estab-
lished under section 8(a) of this Act;’’;
(2) by redesignating paragraph (7) as para-
graph (8); and
(3) by inserting after paragraph (6) the follow-
ing new paragraph (7):
‘‘(7) the term ‘Civilian Board’ means the Civil-
ian Board of Contract Appeals established under sec-
tion 8(b) of this Act; and’’.
(b) Section 6(c)(6) of the Contract Disputes Act of
1978 (41 U.S.C. 605(c)(6)) is amended—
132
(1) by striking out ‘‘court or an agency board of
contract appeals’’ and inserting in lieu thereof ‘‘court,
the Defense Board, or the Civilian Board’’;
(2) by striking out ‘‘an agency board of contract
appeals’’ in the third sentence and inserting in lieu
thereof ‘‘the Defense Board or the Civilian Board’’;
and
(3) by striking out ‘‘agency board’’ and inserting
in lieu thereof ‘‘the Board concerned’’.
(c) Section 7 of the Contract Disputes Act of 1978 (41
U.S.C. 606) is amended by striking out ‘‘an agency board
of contract appeals’’ and inserting in lieu thereof ‘‘the De-
fense Board or the Civilian Board’’.
(d) Section 8 of the Contract Disputes Act of 1978 (41
U.S.C. 607), as amended by section 411, is further amend-
ed—
(1) by amending the heading to read as follows:
‘‘DEFENSE AND CIVILIAN BOARDS OF CONTRACT APPEALS’’;
(2) by striking out subsection (c);
(3) in subsection (d)—
(A) by striking out the first sentence and
inserting in lieu thereof the following:
‘‘The Defense Board shall have jurisdiction to decide any
appeal from a decision of a contracting officer of the De-
partment of Defense, the Department of the Army, the De-
partment of the Navy, or the Department of the Air Force
133
relative to a contract made by that department. The Civil-
ian Board shall have jurisdiction to decide any appeal from
a decision of a contracting officer of any executive agency
(other than the Department of Defense or the Department
of the Army, the Navy, or the Air Force) relative to a con-
tract made by that agency.’’; and
(B) in the second sentence, by striking out
‘‘the agency board’’ and inserting in lieu thereof
‘‘the Board concerned’’;
(4) in subsection (e), by striking out ‘‘An agency
board shall provide’’ and inserting in lieu thereof
‘‘The Defense Board and the Civilian Board shall
each provide,’’;
(5) in subsection (f), by striking out ‘‘each agen-
cy board’’ and inserting in lieu thereof ‘‘the Defense
Board and the Civilian Board’’;
(6) in subsection (g)—
(A) in the first sentence of paragraph (1),
by striking out ‘‘an agency board of contract ap-
peals’’ and inserting in lieu thereof ‘‘the Defense
Board or the Civilian Board, as the case may
be,’’;
(B) by striking out paragraph (2); and
(C) by redesignating paragraph (3) as
paragraph (2); and
134
(7) by striking out subsections (h) and (i).
(e) Section 9 of the Contract Disputes Act of 1978 (41
U.S.C. 608) is amended—
(1) in subsection (a), by striking out ‘‘each agen-
cy board’’ and inserting in lieu thereof ‘‘the Defense
Board and the Civilian Board’’; and
(2) in subsection (b), by striking out ‘‘the agency
board’’ and inserting in lieu thereof ‘‘the Board con-
cerned’’.
(f) Section 10 of the Contract Disputes Act of 1978
(41 U.S.C. 609) is amended—
(1) in subsection (a)—
(A) in the first sentence of paragraph (1)—
(i) by striking out ‘‘Except as provided
in paragraph (2), and in’’ and inserting in
lieu thereof ‘‘In’’; and
(ii) by striking out ‘‘an agency board’’
and inserting in lieu thereof ‘‘the Defense
Board or the Civilian Board’’;
(B) by striking out paragraph (2); and
(C) by redesignating paragraph (3) as
paragraph (2), and in that paragraph by strik-
ing out ‘‘or (2)’’;
(2) in subsection (b)—
135
(A) by striking out ‘‘any agency board’’ and
inserting in lieu thereof ‘‘the Defense Board or
the Civilian Board’’; and
(B) by striking out ‘‘the agency board’’ and
inserting in lieu thereof ‘‘the Board concerned’’;
(3) in subsection (c)—
(A) by striking out ‘‘an agency board’’ and
inserting in lieu of each ‘‘the Defense Board or
the Civilian Board’’; and
(B) by striking out ‘‘the agency board’’ and
inserting in lieu thereof ‘‘the Board concerned’’;
and
(4) in subsection (d)—
(A) by striking out ‘‘one or more agency
boards’’ and inserting in lieu thereof ‘‘the De-
fense Board or the Civilian Board (or both)’’;
and
(B) by striking out ‘‘or among the agency
boards involved’’ and inserting in lieu thereof
‘‘one or both of the Boards’’.
(g) Section 11 of the Contract Disputes Act of 1978
(41 U.S.C. 610) is amended—
(1) in the first sentence, by striking out ‘‘an
agency board of contract appeals’’ and inserting in
136
lieu thereof ‘‘the Defense Board or the Civilian
Board’’; and
(2) in the second sentence, by striking out ‘‘the
agency board through the Attorney General; or upon
application by the board of contract appeals of the
Tennessee Valley Authority’’ and inserting in lieu
thereof ‘‘the Defense Board or the Civilian Board’’.
(h) Section 13 of the Contract Disputes Act of 1978
(41 U.S.C. 612) is amended—
(1) in subsection (b), by striking out ‘‘an agency
board of contract appeals’’ and inserting in lieu
thereof ‘‘the Defense Board or the Civilian Board’’;
and
(2) in subsection (d)(2), by striking out ‘‘by the
board of contract appeals for’’ and inserting in lieu
thereof ‘‘by the Defense Board or the Civilian Board
from’’.
SEC. 444. REFERENCES TO AGENCY BOARDS OF CONTRACT
APPEALS.
(a) DEFENSE BOARD.—Any reference to the Armed
Services Board of Contract Appeals in any provision of law
or in any rule, regulation, or other paper of the United
States shall be treated as referring to the Department of
Defense Board of Contract Appeals.
137
(b) CIVILIAN BOARD.—Any reference to an agency
board of contract appeals other than the Armed Services
Board of Contract Appeals in any provision of law or in
any rule, regulation, or other paper of the United States
shall be treated as referring to the Civilian Board of Con-
tract Appeals.
SEC. 445. CONFORMING AMENDMENTS.
(a) TITLE 5.—Section 5372a of title 5, United States
Code, is amended—
(1) in subsection (a)(1), by striking out ‘‘an
agency board of contract appeals appointed under
section 8 of the Contract Disputes Act of 1978’’ and
inserting in lieu thereof ‘‘the Department of Defense
Board of Contract Appeals or the Civilian Board of
Contract Appeals appointed under section 202 of the
Office of Federal Procurement Policy Act’’; and
(2) in subsection (a)(2), by striking out ‘‘an
agency board of contract appeals’’ and inserting in
lieu thereof ‘‘the Department of Defense Board of Con-
tract Appeals or the Civilian Board of Contract Ap-
peals’’.
(b) TITLE 10.—(1) Section 2305(e) of title 10, United
States Code, is amended—
(A) in paragraph (1), by striking out ‘‘sub-
chapter V of chapter 35 of title 31’’ and inserting in
138
lieu thereof ‘‘title II of the Office of Federal Procure-
ment Policy Act’’; and
(B) by striking out paragraph (3).
(2) Section 2305(f) of such title is amended—
(A) in paragraph (1), by striking out ‘‘subpara-
graphs (A) through (F) of subsection (b)(1) of section
3554 of title 31’’ and inserting in lieu thereof ‘‘section
214(h)(2) of the Office of Federal Procurement Policy
Act’’; and
(B) in paragraph (2), by striking out ‘‘para-
graph (1) of section 3554(c) of title 31 within the lim-
its referred to in paragraph (2)’’ and inserting in
lieu thereof ‘‘subparagraph (A) of section 214(i)(1) of
the Office of Federal Procurement Policy Act within
the limits referred to in subparagraph (B)’’.
(c) FEDERAL PROPERTY AND ADMINISTRATIVE SERV-
ICES ACT OF 1949.—(1) Section 303B(j) (as redesignated
by section 104(b)(2)) of the Federal Property and Adminis-
trative Services Act of 1949 (41 U.S.C. 253b(h)) is amend-
ed—
(A) in paragraph (1), by striking out ‘‘sub-
chapter V of chapter 35 of title 31, United States
Code’’ and inserting in lieu thereof ‘‘title II of the Of-
fice of Federal Procurement Policy Act’’; and
(B) by striking out paragraph (3).
139
(2) Section 303B(k) (as redesignated by section
104(b)(2)) of such Act (41 U.S.C. 253b(i)) is amended—
(A) in paragraph (1), by striking out ‘‘in sub-
paragraphs (A) through (F) of subsection (b)(1) of
section 3554 of title 31, United States Code’’ and in-
serting in lieu thereof ‘‘section 214(h)(2) of the Office
of Federal Procurement Policy Act’’; and
(B) in paragraph (2), by striking out ‘‘para-
graph (1) of section 3554(c) of such title within the
limits referred to in paragraph (2)’’ and inserting in
lieu thereof ‘‘subparagraph (A) of section 214(i)(1) of
the Office of Federal Procurement Policy Act within
the limits referred to in subparagraph (B)’’.
(d) OFFICE
OF FEDERAL PROCUREMENT POLICY
ACT.—The table of contents for the Office of Federal Pro-
curement Policy Act (contained in section 1(b)) is amend-
ed—
(1) by inserting the following before the item re-
lating to section 1:
‘‘TITLE I—FEDERAL PROCUREMENT POLICY GENERALLY’’;
and
(2) by adding at the end the following:
‘‘TITLE II—DISPUTE RESOLUTION
‘‘SUBTITLE A—GENERAL PROVISIONS
‘‘Sec. 201. Definitions.
‘‘Sec. 202. Membership.
‘‘Sec. 203. Chairman.
‘‘Sec. 204. Rulemaking authority.
140
‘‘Sec. 205. Authorization of appropriations.
‘‘SUBTITLE B—FUNCTIONS OF THE DEFENSE AND CIVILIAN BOARDS OF
CONTRACT APPEALS
‘‘Sec. 211. Alternative dispute resolution services.
‘‘Sec. 212. Alternative dispute resolution of disputes and protests submitted to
Boards.
‘‘Sec. 213. Contract disputes.
‘‘Sec. 214. Protests.
‘‘Sec. 215. Applicability to certain contracts.’’.
Subtitle F—Effective Date; Interim
Appointment and Rules
SEC. 451. EFFECTIVE DATE.
This title and the amendments made by this title shall
take effect on October 1, 1996.
SEC. 452. INTERIM APPOINTMENT.
(a) DEFENSE BOARD.—The judge serving as chairman
of the Armed Services Board of Contract Appeals on the
date of the enactment of this Act shall serve as Chairman
of the Department of Defense Board of Contract Appeals
during the two-year period beginning on the effective date
of this title, unless such individual resigns such position
or the position otherwise becomes vacant before the expira-
tion of such period. The authority vested in the Secretary
of Defense by section 203(a) of the Office of Federal Procure-
ment Policy Act (as added by section 413) shall take effect
upon the expiration of such two-year period or on the date
such position is vacated, whichever occurs earlier.
(b) CIVILIAN BOARD.—The judge serving as chairman
of the board of contract appeals of the General Services Ad-
141
ministration on the date of the enactment of this Act shall
serve as Chairman of the Civilian Board of Contract Ap-
peals during the two-year period beginning on the effective
date of this title, unless such individual resigns such posi-
tion or the position otherwise becomes vacant before the ex-
piration of such period. The authority vested in the Admin-
istrator of General Services by section 203(a) of the Office
of Federal Procurement Policy Act (as added by section
413) shall take effect upon the expiration of such two-year
period or on the date such position is vacated, whichever
occurs earlier.
SEC. 453. INTERIM RULES.
(a) RULES OF PROCEDURE.—Until such date as rules
of procedure are promulgated pursuant to section 204 of
the Office of Federal Procurement Policy Act (as added by
section 414)—
(1) for protests, the rules of procedure of the
board of contract appeals of the General Services Ad-
ministration, as in effect on the day before the effec-
tive date of this Act, shall be the rules of procedure
for both the Department of Defense Board of Contract
Appeals and the Civilian Board of Contract Appeals;
and
(2) for contract disputes—
142
(A) the rules of procedure of the board of
contract appeals of the General Services Admin-
istration, as in effect on the day before the effec-
tive date of this Act, shall be the rules of proce-
dure for the Civilian Board of Contract Appeals;
and
(B) the rules of procedure of the Armed
Services Board of Contract Appeals, as in effect
on the day before the effective date of this Act,
shall be the rules of procedure for the Depart-
ment of Defense Board of Contract Appeals.
(b) RULES REGARDING BOARD JUDGES.—(1) Until
such date as the Department of Defense Board of Contract
Appeals (in this paragraph referred to as the ‘‘Defense
Board’’) promulgates rules governing the establishment and
maintenance of a register of eligible applicants and the se-
lection of Board judges, the rules of the Armed Services
Board of Contract Appeals governing the establishment and
maintenance of a register of eligible applicants and the se-
lection of board members (as in effect on the day before the
effective date of this Act) shall be the rules of the Defense
Board governing the establishment and maintenance of a
register of eligible applicants and the selection of Board
judges, except that any provisions of the rules of the Armed
Services Board of Contract Appeals that authorize any in-
143
dividual other than the chairman of such board to select
a Defense Board judge shall have no effect.
(2) Until such date as the Civilian Board of Contract
Appeals (in this paragraph referred to as the ‘‘Civilian
Board’’) promulgates rules governing the establishment and
maintenance of a register of eligible applicants and the se-
lection of Board judges, the rules of the board of contract
appeals of the General Services Administration governing
the establishment and maintenance of a register of eligible
applicants and the selection of board members (as in effect
on the day before the effective date of this Act) shall be the
rules of the Civilian Board governing the establishment and
maintenance of a register of eligible applicants and the se-
lection of Board judges, except that any provisions of the
rules of the board of contract appeals of the General Services
Administration that authorize any individual other than
the chairman of such board to select a Civilian Board judge
shall have no effect.
TITLE V—EFFECTIVE DATES AND
IMPLEMENTATION
SEC. 501. EFFECTIVE DATE AND APPLICABILITY.
(a) EFFECTIVE DATE.—Except as otherwise provided
in this title, this title and the amendments made by this
title shall take effect on the date of the enactment of this
Act.
144
(b) APPLICABILITY OF AMENDMENTS.—(1) An amend-
ment made by this title shall apply, in the manner pre-
scribed in the final regulations promulgated pursuant to
section 502 to implement such amendment, with respect to
any solicitation that is issued, any unsolicited proposal
that is received, and any contract entered into pursuant
to such a solicitation or proposal, on or after the date de-
scribed in paragraph (3).
(2) An amendment made by this title shall also apply,
to the extent and in the manner prescribed in the final regu-
lations promulgated pursuant to section 502 to implement
such amendment, with respect to any matter related to—
(A) a contract that is in effect on the date de-
scribed in paragraph (3);
(B) an offer under consideration on the date de-
scribed in paragraph (3); or
(C) any other proceeding or action that is ongo-
ing on the date described in paragraph (3).
(3) The date referred to in paragraphs (1) and (2) is
the date specified in such final regulations. The date so
specified shall be October 1, 1996, or any earlier date that
is not within 30 days after the date on which such final
regulations are published.
145
SEC. 502. IMPLEMENTING REGULATIONS.
(a) PROPOSED REVISIONS.—Proposed revisions to the
Federal Acquisition Regulation and such other proposed
regulations (or revisions to existing regulations) as may be
necessary to implement this title shall be published in the
Federal Register not later than 210 days after the date of
the enactment of this Act.
(b) PUBLIC COMMENT.—The proposed regulations de-
scribed in subsection (a) shall be made available for public
comment for a period of not less than 60 days.
(c) FINAL REGULATIONS.—Final regulations shall be
published in the Federal Register not later than 330 days
after the date of enactment of this Act.
(d) MODIFICATIONS.—Final regulations promulgated
pursuant to this section to implement an amendment made
by this title may provide for modification of an existing
contract without consideration upon the request of the con-
tractor.
(e) SAVINGS PROVISIONS.—(1) Nothing in this title
shall be construed to affect the validity of any action taken
or any contract entered into before the date specified in the
regulations pursuant to section 501(b)(3) except to the ex-
tent and in the manner prescribed in such regulations.
(2) Except as specifically provided in this title, noth-
ing in this title shall be construed to require the renegoti-
146
ation or modification of contracts in existence on the date
of the enactment of this Act.
(3) Except as otherwise provided in this title, a law
amended by this title shall continue to be applied according
to the provisions thereof as such law was in effect on the
day before the date of the enactment of this Act until—
(A) the date specified in final regulations imple-
menting the amendment of that law (as promulgated
pursuant to this section); or
(B) if no such date is specified in regulations,
October 1, 1996.
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