H. R. 1530—472
‘‘(2) The time constraints for delivery of the project.
‘‘(3) The capability and experience of potential contractors.
‘‘(4) The suitability of the project for use of the two-phase
selection procedures.
‘‘(5) The capability of the agency to manage the two-phase
selection process.
‘‘(6) Other criteria established by the agency.
‘‘(c) PROCEDURES DESCRIBED.—Two-phase selection procedures
consist of the following:
‘‘(1) The agency develops, either in-house or by contract,
a scope of work statement for inclusion in the solicitation
that defines the project and provides prospective offerors with
sufficient information regarding the Government’s require-
ments (which may include criteria and preliminary design,
budget parameters, and schedule or delivery requirements) to
enable the offerors to submit proposals which meet the Govern-
ment’s needs. If the agency contracts for development of the
scope of work statement, the agency shall contract for architec-
tural and engineering services as defined by and in accordance
with the Brooks Architect-Engineers Act (40 U.S.C. 541 et
seq.).
‘‘(2) The contracting officer solicits phase-one proposals
that—
‘‘(A) include information on the offeror’s—
‘‘(i) technical approach; and
‘‘(ii) technical qualifications; and
‘‘(B) do not include—
‘‘(i) detailed design information; or
‘‘(ii) cost or price information.
‘‘(3) The evaluation factors to be used in evaluating phase-
one proposals are stated in the solicitation and include special-
ized experience and technical competence, capability to perform,
past performance of the offeror’s team (including the architect-
engineer and construction members of the team) and other
appropriate factors, except that cost-related or price-related
evaluation factors are not permitted. Each solicitation estab-
lishes the relative importance assigned to the evaluation factors
and subfactors that must be considered in the evaluation of
phase-one proposals. The agency evaluates phase-one proposals
on the basis of the phase-one evaluation factors set forth in
the solicitation.
‘‘(4) The contracting officer selects as the most highly quali-
fied the number of offerors specified in the solicitation to pro-
vide the property or services under the contract and requests
the selected offerors to submit phase-two competitive proposals
that include technical proposals and cost or price information.
Each solicitation establishes with respect to phase two—
‘‘(A) the technical submission for the proposal, includ-
ing design concepts or proposed solutions to requirements
addressed within the scope of work (or both), and
‘‘(B) the evaluation factors and subfactors, including
cost or price, that must be considered in the evaluations
of proposals in accordance with subsections (b), (c), and
(d) of section 303A.
The contracting officer separately evaluates the submissions
described in subparagraphs (A) and (B).
H. R. 1530—473
‘‘(5) The agency awards the contract in accordance with
section 303B of this title.
‘‘(d) SOLICITATION
TO STATE NUMBER
OF OFFERORS TO BE
SELECTED FOR PHASE TWO REQUESTS FOR COMPETITIVE PROPOS-
ALS.—A solicitation issued pursuant to the procedures described
in subsection (c) shall state the maximum number of offerors that
are to be selected to submit competitive proposals pursuant to
subsection (c)(4). The maximum number specified in the solicitation
shall not exceed 5 unless the agency determines with respect to
an individual solicitation that a specified number greater than
5 is in the Government’s interest and is consistent with the purposes
and objectives of the two-phase selection process.
‘‘(e) REQUIREMENT FOR GUIDANCE AND REGULATIONS.—The Fed-
eral Acquisition Regulation shall include guidance—
‘‘(1) regarding the factors that may be considered in deter-
mining whether the two-phase contracting procedures author-
ized by subsection (a) are appropriate for use in individual
contracting situations;
‘‘(2) regarding the factors that may be used in selecting
contractors; and
‘‘(3) providing for a uniform approach to be used Govern-
ment-wide.’’.
(2) The table of sections at the beginning of such Act is amended
by inserting after the item relating to section 303L the following
new item:
‘‘Sec. 303M. Design-build selection procedures.’’.
TITLE XLII—COMMERCIAL ITEMS
SEC. 4201. COMMERCIAL ITEM EXCEPTION TO REQUIREMENT FOR
CERTIFIED COST OR PRICING DATA.
(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 certified cost or pricing
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 procur-
ing activity, without delegation, determines that the
requirements of this section may be waived and justifies
in writing the reasons for such determination.
‘‘(2) MODIFICATIONS OF CONTRACTS AND SUBCONTRACTS FOR
COMMERCIAL ITEMS.—In the case of a modification of a contract
or subcontract for a commercial item that is not covered by
the exception to the submission of certified cost or pricing
data in paragraph (1)(A) or (1)(B), submission of certified 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 certified
H. R. 1530—474
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 commercial item.
‘‘(c) 
COST
OR
PRICING
DATA
ON
BELOW-THRESHOLD
CONTRACTS.—
‘‘(1) AUTHORITY TO REQUIRE SUBMISSION.—Subject to para-
graph (2), when certified cost or pricing data are not required
to be submitted by subsection (a) for a contract, subcontract,
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) EXCEPTION.—The head of the procuring activity may
not require certified cost or pricing data to be submitted under
this paragraph for any contract or subcontract, or modification
of a contract or subcontract, covered by the exceptions in
subparagraph (A) or (B) of subsection (b)(1).
‘‘(3) DELEGATION OF AUTHORITY PROHIBITED.—The head of
a procuring activity may not delegate functions under this
paragraph.
‘‘(d) SUBMISSION OF OTHER INFORMATION.—
‘‘(1) AUTHORITY TO REQUIRE SUBMISSION.—When certified
cost or pricing data are not required to be submitted under
this section for a contract, subcontract, or modification of a
contract or subcontract, the contracting officer shall require
submission of data other than certified cost or pricing data
to the extent necessary to determine the reasonableness of
the price of the contract, subcontract, or modification of the
contract or subcontract. Except in the case of a contract or
subcontract covered by the exceptions in subsection (b)(1)(A),
the data submitted shall include, at a minimum, appropriate
information on the prices at which the same item or similar
items have previously been sold that is adequate for evaluating
the reasonableness of the price for the procurement.
‘‘(2) LIMITATIONS ON AUTHORITY.—The Federal Acquisition
Regulation shall include the following provisions regarding the
types of information that contracting officers may require under
paragraph (1):
‘‘(A) Reasonable limitations on requests for sales data
relating to commercial items.
‘‘(B) A requirement that a contracting officer limit,
to the maximum extent practicable, the scope of any
request for information relating to commercial items from
an offeror to only that information that is in the form
regularly maintained by the offeror in commercial
operations.
H. R. 1530—475
‘‘(C) A statement that any information received relating
to commercial items that is exempt from disclosure under
section 552(b) of title 5 shall not be disclosed 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).
(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 certified cost or pricing
data shall not be required under subsection (a) in the case
of a contract, a subcontract, or a 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 procur-
ing activity, without delegation, determines that the
requirements of this section may be waived and justifies
in writing the reasons for such determination.
‘‘(2) MODIFICATIONS OF CONTRACTS AND SUBCONTRACTS FOR
COMMERCIAL ITEMS.—In the case of a modification of a contract
or subcontract for a commercial item that is not covered by
the exception to the submission of certified cost or pricing
data in paragraph (1)(A) or (1)(B), submission of certified 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 certified
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 commercial item.
‘‘(c) COST
OR
PRICING
DATA
ON
BELOW-THRESHOLD
CON-
TRACTS.—
‘‘(1) AUTHORITY TO REQUIRE SUBMISSION.—Subject to para-
graph (2), when certified cost or pricing data are not required
to be submitted by subsection (a) for a contract, subcontract,
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) EXCEPTION.—The head of the procuring activity may
not require certified cost or pricing data to be submitted under
this paragraph for any contract or subcontract, or modification
H. R. 1530—476
of a contract or subcontract, covered by the exceptions in
subparagraph (A) or (B) of subsection (b)(1).
‘‘(3) DELEGATION OF AUTHORITY PROHIBITED.—The head of
a procuring activity may not delegate the functions under this
paragraph.
‘‘(d) SUBMISSION OF OTHER INFORMATION.—
‘‘(1) AUTHORITY TO REQUIRE SUBMISSION.—When certified
cost or pricing data are not required to be submitted under
this section for a contract, subcontract, or modification of a
contract or subcontract, the contracting officer shall require
submission of data other than certified cost or pricing data
to the extent necessary to determine the reasonableness of
the price of the contract, subcontract, or modification of the
contract or subcontract. Except in the case of a contract or
subcontract covered by the exceptions in subsection (b)(1)(A),
the data submitted shall include, at a minimum, appropriate
information on the prices at which the same item or similar
items have previously been sold that is adequate for evaluating
the reasonableness of the price for the procurement.
‘‘(2) LIMITATIONS ON AUTHORITY.—The Federal Acquisition
Regulation shall include the following provisions regarding the
types of information that contracting officers may require under
paragraph (1):
‘‘(A) Reasonable limitations on requests for sales data
relating to commercial items.
‘‘(B) A requirement that a contracting officer limit,
to the maximum extent practicable, the scope of any
request for information relating to commercial items from
an offeror to only that information that is in the form
regularly maintained by the offeror in commercial
operations.
‘‘(C) A statement that any information received relating
to commercial items that is exempt from disclosure under
section 552(b) of title 5 shall not be disclosed 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. 4202. APPLICATION OF SIMPLIFIED PROCEDURES TO CERTAIN
COMMERCIAL ITEMS.
(a) ARMED SERVICES ACQUISITIONS.—(1) Section 2304(g) of title
10, United States Code, is amended—
(A) in paragraph (1), by striking out ‘‘shall provide for
special simplified procedures for purchases of’’ and all that
follows through the end of the paragraph and inserting in
lieu thereof the following: ‘‘shall provide for—
‘‘(A) special simplified procedures for purchases of property
and services for amounts not greater than the simplified
acquisition threshold; and
‘‘(B) special simplified procedures for purchases of property
and services for amounts greater than the simplified acquisition
threshold but not greater than $5,000,000 with respect to which
the contracting officer reasonably expects, based on the nature
of the property or services sought and on market research,
that offers will include only commercial items.’’; and
(B) by adding at the end the following new paragraph:
H. R. 1530—478
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), as applicable; and
‘‘(3) shall include in the contract file a written description
of the procedures used in awarding the contract and the number
of offers received.’’.
(d) SIMPLIFIED NOTICE.—(1) Section 18 of the Office of Federal
Procurement Policy Act (41 U.S.C. 416) is amended—
(A) in subsection (a)(6), by inserting before ‘‘submission’’
the following: ‘‘issuance of solicitations and the’’; and
(B) in subsection (b)(6), by striking out ‘‘threshold—’’ and
inserting in lieu thereof ‘‘threshold, or a contract for the
procurement of commercial items using special simplified
procedures—’’.
(e) EFFECTIVE DATE.—The authority to issue solicitations for
purchases of commercial items in excess of the simplified acquisition
threshold pursuant to the special simplified procedures authorized
by section 2304(g)(1) of title 10, United States Code, section
303(g)(1) of the Federal Property and Administrative Services Act
of 1949, and section 31(a) of the Office of Federal Procurement
Policy Act, as amended by this section, shall expire three years
after the date on which such amendments take effect pursuant
to section 4401(b). Contracts may be awarded pursuant to solicita-
tions that have been issued before such authority expires, notwith-
standing the expiration of such authority.
SEC. 4203. INAPPLICABILITY OF CERTAIN PROCUREMENT LAWS TO
COMMERCIALLY AVAILABLE OFF-THE-SHELF ITEMS.
(a) LAWS LISTED IN THE FAR.—The Office of Federal Procure-
ment Policy Act (41 U.S.C. 401) et seq.) is amended by adding
at the end the following:
‘‘SEC. 35. COMMERCIALLY AVAILABLE OFF-THE-SHELF ITEM ACQUISI-
TIONS: LISTS OF INAPPLICABLE LAWS IN FEDERAL
ACQUISITION REGULATION.
‘‘(a) LISTS OF INAPPLICABLE PROVISIONS OF LAW.—(1) The Fed-
eral Acquisition Regulation shall include a list of provisions of
law that are inapplicable to contracts for the procurement of
commercially available off-the-shelf items.
‘‘(2) A provision of law that, pursuant to paragraph (3), is
properly included on a list referred to in paragraph (1) may not
be construed as being applicable to contracts referred to in para-
graph (1). Nothing in this section shall be construed to render
inapplicable to such contracts any provision of law that is not
included on such list.
‘‘(3) A provision of law described in subsection (b) shall be
included on the list of inapplicable provisions of law required by
paragraph (1) unless the Administrator for Federal Procurement
Policy makes a written determination that it would not be in
the best interest of the United States to exempt such contracts
from the applicability of that provision of law. Nothing in this
section shall be construed as modifying or superseding, or as being
intended to impair or restrict authorities or responsibilities under—
‘‘(A) section 15 of the Small Business Act (15 U.S.C. 644);
or
‘‘(B) bid protest procedures developed under the authority
of subchapter V of chapter 35 of title 31, United States Code;
subsections (e) and (f) of section 2305 of title 10, United States
H. R. 1530—479
Code; or subsections (h) and (i) of section 303B of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
253b).
‘‘(b) COVERED LAW.—Except as provided in subsection (a)(3),
the list referred to in subsection (a)(1) shall include each provision
of law that, as determined by the Administrator, imposes on persons
who have been awarded contracts by the Federal Government for
the procurement of commercially available off-the-shelf items
Government-unique policies, procedures, requirements, or restric-
tions for the procurement of property or services, except the
following:
‘‘(1) A provision of law that provides for criminal or civil
penalties.
‘‘(2) A provision of law that specifically refers to this section
and provides that, notwithstanding this section, such provision
of law shall be applicable to contracts for the procurement
of commercial off-the-shelf items.
‘‘(c) DEFINITION.—(1) As used in this section, the term ‘commer-
cially available off-the-shelf item’ means, except as provided in
paragraph (2), an item that—
‘‘(A) is a commercial item (as described in section 4(12)(A));
‘‘(B) is sold in substantial quantities in the commercial
marketplace; and
‘‘(C) is offered to the Government, without modification,
in the same form in which it is sold in the commercial
marketplace.
‘‘(2) The term ‘commercially available off-the-shelf item’ does
not include bulk cargo, as defined in section 3 of the Shipping
Act of 1984 (46 U.S.C. App. 1702), such as agricultural products
and petroleum products.’’.
(b) CLERICAL AMENDMENT.—The table of contents in section
1(b) of such Act is amended by inserting after the item relating
to section 34 the following:
‘‘Sec. 35. Commercially available off-the-shelf item acquisitions: lists of inapplicable
laws in Federal Acquisition Regulation.’’.
SEC. 4204. AMENDMENT OF COMMERCIAL ITEMS DEFINITION.
Section 4(12)(F) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(12)(F)) is amended by inserting ‘‘or market’’
after ‘‘catalog’’.
SEC. 4205. INAPPLICABILITY OF COST ACCOUNTING STANDARDS TO
CONTRACTS AND SUBCONTRACTS FOR COMMERCIAL
ITEMS.
Paragraph (2)(B) of section 26(f) of the Office of Federal
Procurement Policy Act (41 U.S.C. 422(f)) is amended—
(1) by striking out clause (i) and inserting in lieu thereof
the following:
‘‘(i) Contracts or subcontracts for the acquisition of commer-
cial items.’’; and
(2) by striking out clause (iii).
H. R. 1530—480
TITLE XLIII—ADDITIONAL REFORM
PROVISIONS
Subtitle A—Additional Acquisition Reform
Provisions
SEC. 4301. ELIMINATION OF CERTAIN CERTIFICATION REQUIREMENTS.
(a) ELIMINATION
OF
CERTAIN
STATUTORY
CERTIFICATION
REQUIREMENTS.—(1) Section 2410b of title 10, United States Code,
is amended in paragraph (2) by striking out ‘‘certification and’’.
(2) 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).
(3) 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 ‘‘contract 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 certifi-
cation by failing to carry out’’; and
(iii) by redesignating subparagraph (C) as subpara-
graph (B).
(b) ELIMINATION
OF
CERTAIN
REGULATORY
CERTIFICATION
REQUIREMENTS.—
(1) CURRENT CERTIFICATION REQUIREMENTS.—(A) Not later
than 210 days after the date of the enactment of this Act,
the Administrator for Federal Procurement Policy shall issue
for public comment a proposal to amend the Federal Acquisition
Regulation to remove from the Federal Acquisition Regulation
certification requirements for contractors and offerors that are
not specifically imposed by statute. The Administrator may
omit such a certification requirement from the proposal only
if—
(i) the Federal Acquisition Regulatory Council provides
the Administrator with a written justification for the
requirement and a determination that there is no less
burdensome means for administering and enforcing the
particular regulation that contains the certification require-
ment; and
(ii) the Administrator approves in writing the retention
of the certification requirement.
(B)(i) Not later than 210 days after the date of the enact-
ment of this Act, the head of each executive agency that has
agency procurement regulations containing one or more certifi-
cation requirements for contractors and offerors that are not
specifically imposed by statute shall issue for public comment
a proposal to amend the regulations to remove the certification
H. R. 1530—481
requirements. The head of the executive agency may omit such
a certification requirement from the proposal only if—
(I) the senior procurement executive for the executive
agency provides the head of the executive agency with
a written justification for the requirement and a determina-
tion that there is no less burdensome means for administer-
ing and enforcing the particular regulation that contains
the certification requirement; and
(II) the head of the executive agency approves in writ-
ing the retention of such certification requirement.
(ii) For purposes of clause (i), the term ‘‘head of the execu-
tive agency’’ with respect to a military department means the
Secretary of Defense.
(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 follows:
‘‘SEC. 29. CONTRACT CLAUSES AND CERTIFICATIONS.’’;
(ii) 
by 
inserting 
‘‘(a) 
NONSTANDARD
CONTRACT
CLAUSES.—’’ before ‘‘The Federal Acquisition’’; and
(iii) by adding at the end the following new subsection:
‘‘(c) PROHIBITION
ON CERTIFICATION REQUIREMENTS.—(1) A
requirement for a certification by a contractor or offeror may not
be included in the Federal Acquisition Regulation unless—
‘‘(A) the certification requirement is specifically imposed
by statute; or
‘‘(B) written justification for such certification requirement
is provided to the Administrator for Federal Procurement Policy
by the Federal Acquisition Regulatory Council, and the
Administrator approves in writing the inclusion of such certifi-
cation requirement.
‘‘(2)(A) A requirement for a certification by a contractor or
offeror may not be included in a procurement regulation of an
executive agency unless—
‘‘(i) the certification requirement is specifically imposed
by statute; or
‘‘(ii) written justification for such certification requirement
is provided to the head of the executive agency by the senior
procurement executive of the agency, and the head of the execu-
tive agency approves in writing the inclusion of such certifi-
cation requirement.
‘‘(B) For purposes of subparagraph (A), the term ‘head of the
executive agency’ with respect to a military department means
the Secretary of Defense.’’.
(B) The item relating to section 29 in the table of contents
for the Office of Federal Procurement Policy Act (contained
in section 1(b)) (41 U.S.C. 401 note) is amended to read as
follows:
‘‘Sec. 29. Contract clauses and certifications.’’.
(c) POLICY OF CONGRESS.—Section 29 of the Office of Federal
Procurement Policy Act (41 U.S.C. 425) is further amended by
adding after subsection (a) the following new subsection:
‘‘(b) CONSTRUCTION OF CERTIFICATION REQUIREMENTS.—A provi-
sion of law may not be construed as requiring a certification by
a contractor or offeror in a procurement made or to be made
H. R. 1530—482
by the Federal Government unless that provision of law specifically
provides that such a certification shall be required.’’.
SEC. 4302. AUTHORITIES CONDITIONED ON FACNET CAPABILITY.
(a) COMMENCEMENT AND EXPIRATION OF AUTHORITY TO CON-
DUCT CERTAIN TESTS OF PROCUREMENT PROCEDURES.—Subsection
(j) of section 5061 of the Federal Acquisition Streamlining Act
of 1994 (41 U.S.C. 413 note; 108 Stat. 3355) is amended to read
as follows:
‘‘(j) COMMENCEMENT
AND EXPIRATION
OF AUTHORITY.—The
authority to conduct a test under subsection (a) in an agency and
to award contracts under such a test shall take effect on January
1, 1997, and shall expire on January 1, 2001. A contract entered
into before such authority expires in an agency pursuant to a
test shall remain in effect, in accordance with the terms of the
contract, the notwithstanding of expiration the authority to conduct
the test under this section.’’.
(b) USE OF SIMPLIFIED ACQUISITION PROCEDURES.—Subsection
(e) of section 31 of the Office of Federal Procurement Policy Act
(41 U.S.C. 427) is amended—
(1) by striking out ‘‘ACQUISITION PROCEDURES.—’’ and all
that follows through ‘‘(B) The simplified acquisition’’ in para-
graph (2)(B) and inserting in lieu thereof ‘‘ACQUISITION PROCE-
DURES.—The simplified acquisition’’; and
(2) by striking out ‘‘pursuant to this section’’ in the remain-
ing text and inserting in lieu thereof ‘‘pursuant to section
2304(g)(1)(A) of title 10, United States Code, section 303(g)(1)(A)
of the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 253(g)(1)(A)), and subsection (a)(1) of this
section’’.
SEC. 4303. INTERNATIONAL COMPETITIVENESS.
(a) ADDITIONAL AUTHORITY
TO WAIVE RESEARCH, DEVELOP-
MENT, AND PRODUCTION COSTS.—Subject to subsection (b), section
21(e)(2) of the Arms Export Control Act (22 U.S.C. 2761(e)(2))
is amended—
(1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and
(2) by adding at the end the following new subparagraphs:
‘‘(B) The President may waive the charge or charges which
would otherwise be considered appropriate under paragraph (1)(B)
for a particular sale if the President determines that—
‘‘(i) imposition of the charge or charges likely would result
in the loss of the sale; or
‘‘(ii) in the case of a sale of major defense equipment
that is also being procured for the use of the Armed Forces,
the waiver of the charge or charges would (through a resulting
increase in the total quantity of the equipment purchased from
the source of the equipment that causes a reduction in the
unit cost of the equipment) result in a savings to the United
States on the cost of the equipment procured for the use of
the Armed Forces that substantially offsets the revenue fore-
gone by reason of the waiver of the charge or charges.
‘‘(C) The President may waive, for particular sales of major
defense equipment, any increase in a charge or charges previously
considered appropriate under paragraph (1)(B) if the increase
results from a correction of an estimate (reasonable when made)
of the production quantity base that was used for calculating the
charge or charges for purposes of such paragraph.’’.
H. R. 1530—483
(b) CONDITIONS.—Subsection (a) shall be effective only if—
(1) the President, in the budget of the President for fiscal
year 1997, proposes legislation that if enacted would be qualify-
ing offsetting legislation; and
(2) there is enacted qualifying offsetting legislation.
(c) EFFECTIVE DATE.—If the conditions in subsection (b) are
met, then the amendments made by subsection (a) shall take effect
on the date of the enactment of qualifying offsetting legislation.
(d) DEFINITIONS.—For purposes of this section:
(1) The term ‘‘qualifying offsetting legislation’’ means legis-
lation that includes provisions that—
(A) offset fully the estimated revenues lost as a result
of the amendments made by subsection (a) for each of
the fiscal years 1997 through 2005;
(B) expressly state that they are enacted for the pur-
pose of the offset described in subparagraph (A); and
(C) are included in full on the PayGo scorecard.
(2) The term ‘‘PayGo scorecard’’ means the estimates that
are made 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.
SEC. 4304. PROCUREMENT INTEGRITY.
(a) AMENDMENT OF PROCUREMENT INTEGRITY PROVISION.—Sec-
tion 27 of the Office of Federal Procurement Policy Act (41 U.S.C.
423) is amended to read as follows:
‘‘SEC. 27. RESTRICTIONS ON DISCLOSING AND OBTAINING CONTRAC-
TOR BID OR PROPOSAL INFORMATION OR SOURCE SELEC-
TION INFORMATION.
‘‘(a) PROHIBITION
ON
DISCLOSING
PROCUREMENT
INFORMA-
TION.—(1) A person described in paragraph (2) shall not, other
than as provided by law, knowingly disclose contractor bid or pro-
posal information or source selection information before the award
of a Federal agency procurement 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 relationship
has or had access to contractor bid or proposal information
or source selection information.
‘‘(b) PROHIBITION ON OBTAINING PROCUREMENT INFORMATION.—
A person shall not, other than as provided by law, knowingly
obtain contractor bid or proposal information or source selection
information before the award of a Federal agency procurement
contract to which the information relates.
‘‘(c) ACTIONS REQUIRED OF PROCUREMENT OFFICERS WHEN CON-
TACTED
BY OFFERORS REGARDING NON-FEDERAL EMPLOYMENT.—
(1) If an agency employee who is participating personally and
substantially in a Federal agency procurement for a contract in
excess of the simplified acquisition threshold contacts or is contacted
by a person who is a bidder or offeror in that Federal agency
procurement regarding possible non-Federal employment for that
employee, the employee shall—
H. R. 1530—484
‘‘(A) promptly report the contact in writing to the employ-
ee’s supervisor and to the designated agency ethics official
(or designee) of the agency in which the employee is employed;
and
‘‘(B)(i) reject the possibility of non-Federal employment;
or
‘‘(ii) disqualify himself or herself from further personal
and substantial participation in that Federal agency procure-
ment until such time as the agency has authorized the employee
to resume participation in such procurement, in accordance
with the requirements of section 208 of title 18, United States
Code, and applicable agency regulations on the grounds that—
‘‘(I) the person is no longer a bidder or offeror in
that Federal agency procurement; or
‘‘(II) all discussions with the bidder or offeror regarding
possible non-Federal employment have terminated without
an agreement or arrangement for employment.
‘‘(2) Each report required by this subsection shall be retained
by the agency for not less than two years following the submission
of the report. All such reports shall be made available to the
public upon request, except that any part of a report that is exempt
from the disclosure requirements of section 552 of title 5, United
States Code, under subsection (b)(1) of such section may be withheld
from disclosure to the public.
‘‘(3) An employee who knowingly fails to comply with the
requirements of this subsection shall be subject to the penalties
and administrative actions set forth in subsection (e).
‘‘(4) A bidder or offeror who engages in employment discussions
with an employee who is subject to the restrictions of this sub-
section, knowing that the employee has not complied with subpara-
graph (A) or (B) of paragraph (1), shall be subject to the penalties
and administrative actions set forth in subsection (e).
‘‘(d) PROHIBITION ON FORMER EMPLOYEE’S ACCEPTANCE OF COM-
PENSATION FROM CONTRACTOR.—(1) A former employee of a Federal
agency may not accept compensation from a contractor as an
employee, officer, director, or consultant of the contractor within
a period of one year after such former employee—
‘‘(A) served, at the time of selection of the contractor or
the award of a contract to that contractor, as the procuring
contracting officer, the source selection authority, a member
of the source selection evaluation board, or the chief of a finan-
cial or technical evaluation team in a procurement in which
that contractor was selected for award of a contract in excess
of $10,000,000;
‘‘(B) served as the program manager, deputy program man-
ager, or administrative contracting officer for a contract in
excess of $10,000,000 awarded to that contractor; or
‘‘(C) personally made for the Federal agency—
‘‘(i) a decision to award a contract, subcontract, modi-
fication of a contract or subcontract, or a task order or
delivery order in excess of $10,000,000 to that contractor;
‘‘(ii) a decision to establish overhead or other rates
applicable to a contract or contracts for that contractor
that are valued in excess of $10,000,000;
‘‘(iii) a decision to approve issuance of a contract pay-
ment or payments in excess of $10,000,000 to that contrac-
tor; or
H. R. 1530—485
‘‘(iv) a decision to pay or settle a claim in excess of
$10,000,000 with that contractor.
‘‘(2) Nothing in paragraph (1) may be construed to prohibit
a former employee of a Federal agency from accepting compensation
from any division or affiliate of a contractor that does not produce
the same or similar products or services as the entity of the contrac-
tor that is responsible for the contract referred to in subparagraph
(A), (B), or (C) of such paragraph.
‘‘(3) A former employee who knowingly accepts compensation
in violation of this subsection shall be subject to penalties and
administrative actions as set forth in subsection (e).
‘‘(4) A contractor who provides compensation to a former
employee knowing that such compensation is accepted by the former
employee in violation of this subsection shall be subject to penalties
and administrative actions as set forth in subsection (e).
‘‘(5) Regulations implementing this subsection shall include
procedures for an employee or former employee of a Federal agency
to request advice from the appropriate designated agency ethics
official regarding whether the employee or former employee is or
would be precluded by this subsection from accepting compensation
from a particular contractor.
‘‘(e) PENALTIES AND ADMINISTRATIVE ACTIONS.—
‘‘(1) CRIMINAL
PENALTIES.—Whoever engages in conduct
constituting a violation of subsection (a) or (b) for the purpose
of either—
‘‘(A) exchanging the information covered by such sub-
section for anything of value, or
‘‘(B) obtaining or giving anyone a competitive advan-
tage in the award of a Federal agency procurement
contract,
shall be imprisoned for not more than 5 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 an appropriate United States district court
against any person who engages in conduct constituting a viola-
tion of subsection (a), (b), (c), or (d). Upon proof of such conduct
by a preponderance of the evidence, the person is subject to
a civil penalty. An individual who engages in such conduct
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 engages 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 Federal agency
receives information that a contractor or a person has engaged
in conduct constituting a violation of subsection (a), (b), (c),
or (d), the Federal agency shall consider taking one or more
of the following actions, as appropriate:
‘‘(i) Cancellation of the Federal agency procurement,
if a contract has not yet been awarded.
‘‘(ii) Rescission of a contract with respect to which—
‘‘(I) the contractor or someone acting for the con-
tractor has been convicted for an offense punishable
under paragraph (1), or
H. R. 1530—486
‘‘(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 constituting
such an offense.
‘‘(iii) Initiation of suspension or debarment proceedings
for the protection of the Government in accordance with
procedures in the Federal Acquisition 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 prescribed by law, the amount
expended under the contract.
‘‘(C) For purposes of any suspension or debarment proceed-
ings initiated pursuant to subparagraph (A)(iii), engaging in
conduct constituting an offense under subsection (a), (b), (c),
or (d) affects the present responsibility of a Government con-
tractor or subcontractor.
‘‘(f) DEFINITIONS.—As used in this section:
‘‘(1) The term ‘contractor bid or proposal information’ means
any of the following information submitted to a Federal agency
as part of or in connection 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 dis-
closed publicly:
‘‘(A) Cost or pricing data (as defined by section 2306a(h)
of title 10, United States Code, with respect to procure-
ments subject to that section, and section 304A(h) of the
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 manufacturing
processes, operations, or techniques marked by the contrac-
tor in accordance with applicable law or regulation.
‘‘(D) Information marked by the contractor as ‘contrac-
tor 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 procurement contract, if that information
has not been previously made available to the public or dis-
closed 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.