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.
Sec. xx. Two-phase selection procedures.
TITLE II—COMMERCIAL ITEMS
Sec. 201. Commercial item exception to requirement for cost or pricing data
and information limitations.
Sec. 202. Application of simplified procedures to commercial items.
Sec. 203. Amendment to definition of commercial items.
Sec. 204. Inapplicability of cost accounting standards to contracts and 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 per-
formance 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.
Sec. 319. Demonstration project relating to certain personnel management poli-
cies and procedures.
Sec. 320. Cooperative purchasing.
TITLE IV—STREAMLINING OF DISPUTE RESOLUTION
Subtitle A—General Provisions
Sec. 401. Definitions.
Subtitle B—Establishment of Civilian and Defense Boards of Contract
Appeals
Sec. 411. Establishment.
Sec. 412. Membership.
Sec. 413. Chairman.
Sec. 414. Rulemaking authority.
Sec. 415. Authorization of appropriations.
Subtitle C—Functions of Defense and Civilian Boards of Contract Appeals
Sec. 421. Alternative dispute resolution services.
Sec. 422. Alternative dispute resolution of disputes and protests submitted to
boards.
Sec. 423. Contract disputes.
Sec. 424. Protests.
Sec. 425. Applicability to certain contracts.
Subtitle D—Repeal of Other Statutes Authorizing Administrative Protests
Sec. 431. Repeals.
Subtitle E—Transfers and Transitional, Savings, and Conforming Provisions
Sec. 441. Transfer and allocation of appropriations and personnel.
Sec. 442. Terminations and savings provisions.
Sec. 443. Contract disputes authority of boards.
Sec. 444. References to agency boards of contract appeals.
Sec. 445. Conforming amendments.
Subtitle F—Effective Date; Regulations and Appointment of Chairmen
Sec. 451. Effective date.
Sec. 452. Regulations.
Sec. 453. Appointment of chairmen of defense board and civilian board.
TITLE V—EFFECTIVE DATES AND IMPLEMENTATION
Sec. 501. Effective date and applicability.
Sec. 502. Implementing regulations.
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 stat-
ute, 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 ef-
ficiently fulfill the Government’s requirements,
through the use of competitive procedures in accord-
ance with this title and the Federal Acquisition Reg-
ulation; and
‘‘(B) shall use the competitive procedure or
combination 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
receiving 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 title using competitive
procedures 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 Acquisi-
tion Regulation shall set forth the circumstances under
which a particular 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 competi-
tive procedures (other than a procurement for commercial
items using simplified procedures or a procurement in an
amount not greater than the simplified acquisition thresh-
old) shall be justified in writing and approved in accord-
ance 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 pro-
curement’), the Federal Acquisition Regulation shall pro-
vide for justification and approval under paragraph (1) of
such procurement under standards that set forth limited
circumstances for such sole source procurements, includ-
ing circumstances when—
‘‘(A) the property or services needed by the
agency 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
unless 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
provided by an educational or other nonprofit insti-
tution or a federally funded research and develop-
ment center, or (iii) to procure the services of an ex-
pert for use, in any litigation or dispute (including
any reasonably foreseeable litigation or dispute) in-
volving the Federal Government, in any trial, hear-
ing, or proceeding before any court, administrative
tribunal, or agency, or in any part of an alternative
dispute resolution 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
government or international organization, or the
written directions of a foreign government reimburs-
ing the agency for the cost of the procurement of the
property or services for such government, have the
effect of requiring the award of the contract for the
property or services to a particular source;
‘‘(E) subject to section 2304f, a statute ex-
pressly 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
procedures other than sealed-bid procedures shall be treat-
ed 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 public buildings of the United States and the
District of Columbia by contractors and subcontrac-
tors, 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
before the date of the enactment of this Act, modi-
fied—
(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), respec-
tively.
(3) The table of sections at the beginning of such
chapter 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 fol-
lows:
‘‘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 stat-
ute, an executive 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 ef-
ficiently fulfill the Government’s requirements,
through the use of competitive procedures in accord-
ance with this title and the Federal Acquisition Reg-
ulation; and
‘‘(B) shall use the competitive procedure or
combination 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
receiving 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 ex-
ecutive agency may provide for the procurement of prop-
erty or services covered by this title using competitive pro-
cedures but excluding a particular source in order to es-
tablish or maintain an alternative source or sources of
supply for that property or service. The Federal Acquisi-
tion Regulation shall set forth the circumstances under
which a particular 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
property or services covered by this section using competi-
tive 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 con-
cerns 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 competi-
tive procedures (other than a procurement for commercial
items using simplified procedures or a procurement in an
amount not greater than the simplified acquisition thresh-
old) shall be justified in writing and approved in accord-
ance 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 pro-
curement’), the Federal Acquisition Regulation shall pro-
vide for justification and approval under paragraph (1) of
such procurement under standards that set forth limited
circumstances for such sole source procurements, includ-
ing circumstances when—
‘‘(A) the property or services needed by the ex-
ecutive agency are available from only one respon-
sible 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 prop-
erty or services is of such an unusual and compelling
urgency that the United States would be seriously
injured 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
provided by an educational or other nonprofit insti-
tution or a federally funded research and develop-
ment center, or (iii) to procure the services of an ex-
pert for use, in any litigation or dispute (including
any reasonably foreseeable litigation or dispute) in-
volving the Federal Government, in any trial, hear-
ing, or proceeding before any court, administrative
tribunal, or agency, or in any part of an alternative
dispute resolution 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 re-
imbursing the executive agency for the cost of the
procurement of the property or services for such
government, have the effect of requiring the award
of the contract for the property or services to a par-
ticular source;
‘‘(E) subject to section 303M, a statute ex-
pressly 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 commercial 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
particular 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
Federal Acquisition Regulation shall provide for special
simplified procedures for purchases of property and serv-
ices for amounts not greater than the simplified acquisi-
tion threshold.
‘‘(2)(A) The Administrator of General Services shall
prescribe regulations that provide special simplified proce-
dures for acquisitions of leasehold interests in real prop-
erty at rental rates that do not exceed the simplified acqui-
sition 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 divided into several purchases or contracts for lesser
amounts in order to use the simplified procedures required
by paragraph (1).
‘‘(4) In using simplified procedures, an executive
agency shall ensure that competition is obtained to the
maximum extent practicable consistent with the particular
Government 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, modi-
fied—
(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), respec-
tively.
(3) The table of contents for the Federal Property
and Administrative Services Act of 1949 (contained in sec-
tion 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 sec-
tion 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 ex-
pected 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
otherwise must meet a qualification require-
ment in order to be eligible for award and, if
so, identify the criteria to be used in determin-
ing such eligibility;’’; 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)
Section 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 procure-
ment of property or services by the executive agency
by establishing policies, procedures, and practices
that are consistent with the need to efficiently fulfill
the Government’s requirements;’’.
(2) Section 20 of such Act (41 U.S.C. 418) is amend-
ed in subsection (a)(2)(A) by striking out ‘‘serving in a
position authorized for such executive agency on the date
of enactment 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 POL-
ICY ACT.—Section 20 of the Office of Federal Pro-
curement 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
efficiently fulfill the Government’s require-
ments’’.
(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 con-
sistent with the need to efficiently fulfill the
Government’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
fulfill 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 ‘‘proce-
dures 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 ad-
vance procurement planning and market re-
search.’’;
(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 subpara-
graphs (A) and (B), the’’ and inserting in lieu
thereof ‘‘Each solicitation under this chapter
shall include specifications that include restric-
tive provisions or conditions only to the extent
necessary to satisfy the needs of the agency or
as authorized 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
preparing for the procurement of property or
services, an executive agency shall use advance
procurement 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 solicitation under this title shall include
specifications that include restrictive provisions
or conditions 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 com-
petitive range (or otherwise excludes such an offeror from
further consideration prior to the final source selection de-
cision), the excluded offeror may request in writing, within
three days after the date on which the excluded offeror
receives 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 but 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
selection procedures set forth in the solicitation, ap-
plicable 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), respec-
tively; and
(3) by inserting after subsection (e) the follow-
ing new subsections:
‘‘(f)(1) When the contracting officer excludes an
offeror submitting a competitive proposal from the com-
petitive range (or otherwise excludes such an offeror from
further consideration prior to the final source selection de-
cision), the excluded offeror may request in writing, within
3 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 but 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.
‘‘(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 sub-
section.
‘‘(3) The debriefing conducted under this subsection
shall include—
‘‘(A) the executive agency’s evaluation of the
significant 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
selection procedures set forth in the solicitation, ap-
plicable 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 con-
ditions, 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 sub-
section (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
follows 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 amend-
ed to read as follows:
‘‘Sec. 304. Contract types.’’.
(c) CONFORMING
REPEALS.—(1) Sections 4540,
7212, and 9540 of title 10, United States Code, are re-
pealed.
(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 sub-
title 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
subsection (a) of such section and inserting in lieu
thereof 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
architectural and engineering services in connection with
a military construction or family housing project or for
other Department of Defense or military department pur-
poses. 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
following 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
contractor as eligible to compete for contracts to fur-
nish 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 re-
ferred to in subsection (a)(2), the head of an executive
agency in granting a verification to a contractor shall use
the following factors as the basis of the evaluation:
‘‘(A) The efficiency and effectiveness of its
business practices.
‘‘(B) The level of quality of its product or serv-
ice.
‘‘(C) Past performance of the contractor with
regard 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 respect to which information on past contract per-
formance is not available, the contractor may not be evalu-
ated favorably or unfavorably on the factor of past per-
formance.
‘‘(c) 
OPPORTUNITY
FOR
ALL
INTERESTED
SOURCES.—The Federal Acquisition Regulation shall pro-
vide procedures 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.—Notwithstand-
ing section 34, the verification system shall apply to the
procurement 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
(contained 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 strik-
ing out the item relating to section 2319.
(3) The table of contents for the Federal Property
and Administrative Services Act of 1949 (contained in sec-
tion 1(b)) is amended by striking out the item relating
to section 303C.
SEC. 107. TWO-PHASE SELECTION PROCEDURES.
(a) ARMED SERVICES ACQUISITIONS.—(1) Chapter
137 of title 10, United States Code, is amended by insert-
ing after section 2305 the following new section:
‘‘§ 2305a. Two-phase selection procedures
‘‘(a) AUTHORIZATION.—Unless the traditional acqui-
sition approach of design-bid-build is used or another ac-
quisition procedure authorized by law is used, the head
of an agency shall use the two-phase selection procedures
authorized in this section for entering into a contract for
the design and construction of a public building, facility,
or work when a determination is made under subsection
(b) that the procedures are appropriate for use.
‘‘(b) CRITERIA FOR USE.—A contracting officer shall
make a determination whether two-phase selection proce-
dures are appropriate for use for entering into a contract
for the design and construction of a public building, facil-
ity, or work when the contracting officer anticipates that
three or more offers will be received for such contract, de-
sign work must be performed before an offeror can develop
a price or cost proposal for such contract, the offeror will
incur a substantial amount of expense in preparing the
offer, and the contracting officer has considered informa-
tion such as the following:
‘‘(1) The extent to which the project require-
ments have been adequately defined.
‘‘(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 selec-
tion 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 re-
garding the Government’s requirements (which may
include criteria and preliminary design, budget pa-
rameters, and schedule or delivery requirements) to
enable the offerors to submit proposals which meet
the Government’s needs. When the two-phase selec-
tion procedure is used for design and construction of
a public building, facility, or work and the agency
contracts for development of the scope of work state-
ment, the agency shall contract for architectural/en-
gineering 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 evalu-
ating phase-one proposals are stated in the solicita-
tion and include specialized experience and technical
competence, capability to perform, past performance
of the offeror’s team (including the architect-engi-
neer and construction members of the team if the
project is for the construction of a public building,
facility, or work) and other appropriate factors, ex-
cept that cost-related or price-related evaluation fac-
tors are not permitted. Each solicitation establishes
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 solicita-
tion.
‘‘(4) The contracting officer selects as the most
highly qualified the number of offerors specified in
the solicitation to provide the property or services
under the contract and requests the selected offerors
to submit phase-two competitive proposals that in-
clude technical proposals and cost or price informa-
tion. Each solicitation establishes with respect to
phase two—
‘‘(A) the technical submission for the pro-
posal, including design concepts or proposed so-
lutions 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 section 2305(b)(4) of this title.
The contracting officer separately evaluates the sub-
missions described in subparagraphs (A) and (B).
‘‘(5) The agency awards the contract in accord-
ance with section 2305(b)(4) of this title.
‘‘(d) 
SOLICITATION
TO
STATE
NUMBER
OF
OFFERORS TO BE SELECTED
FOR PHASE TWO RE-
QUESTS FOR COMPETITIVE PROPOSALS.—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 deter-
mines with respect to an individual solicitation that a spec-
ified number greater than 5 is in the Government’s inter-
est and is consistent with the purposes and objectives of
the two-phase selection process.
‘‘(e) REQUIREMENT FOR GUIDANCE AND REGULA-
TIONS.—The Federal Acquisition Regulatory Council, es-
tablished by section 25(a) of the Office of Federal Pro-
curement Policy Act (41 U.S.C. 421(a)), shall provide
guidance and promulgate regulations—
‘‘(1) regarding the factors that may be consid-
ered in determining whether the two-phase contract-
ing procedures authorized by subsection (a) are ap-
propriate 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 Government-wide.’’.
(2) The table of sections at the beginning of chapter
137 of such title is amended by adding after the item re-
lating to section 2305 the following new item:
‘‘2305a. Two-phase selection procedures.’’.
(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 303L the following new section:
‘‘(a) AUTHORIZATION.—Unless the ‘traditional’ ac-
quisition approach of design-bid-build is used or another
acquisition procedure authorized by law is used, the head
of an executive agency shall use the two-phase selection
procedures authorized in this section for entering into a
contract for the design and construction of a public build-
ing, facility, or work when a determination is made under
subsection (b) that the procedures are appropriate for use.
The two-phase selection procedures authorized in this sec-
tion may also be used for entering into a contract for the
acquisition of property or services other than construction
services when such a determination is made.
‘‘(b) CRITERIA FOR USE.—A contracting officer shall
make a determination whether two-phase selection proce-
dures are appropriate for use for entering into a contract
for the design and construction of a public building, facil-
ity, or work when the contracting officer anticipates that
three or more offers will be received for such contract, de-
sign work must be performed before an offeror can develop
a price or cost proposal for such contract, the offeror will
incur a substantial amount of expense in preparing the
offer, and the contracting officer has considered informa-
tion such as the following:
‘‘(1) The extent to which the project require-
ments have been adequately defined.
‘‘(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 selec-
tion 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 re-
garding the Government’s requirements (which may
include criteria and preliminary design, budget pa-
rameters, and schedule or delivery requirements) to
enable the offerors to submit proposals which meet
the Government’s needs. When the two-phase selec-
tion procedure is used for design and construction of
a public building, facility, or work and the agency
contracts for development of the scope of work state-
ment, the agency shall contract for architectural/en-
gineering 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 evalu-
ating phase-one proposals are stated in the solicita-
tion and include specialized experience and technical
competence, capability to perform, past performance
of the offeror’s team (including the architect-engi-
neer and construction members of the team if the
project is for the construction of a public building,
facility, or work) and other appropriate factors, ex-
cept that cost-related or price-related evaluation fac-
tors are not permitted. Each solicitation establishes
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 solicita-
tion.
‘‘(4) The contracting officer selects as the most
highly qualified the number of offerors specified in
the solicitation to provide the property or services
under the contract and requests the selected offerors
to submit phase-two competitive proposals that in-
clude technical proposals and cost or price informa-
tion. Each solicitation establishes with respect to
phase two—
‘‘(A) the technical submission for the pro-
posal, including design concepts or proposed so-
lutions 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 section 303B(d).
The contracting officer separately evaluates the sub-
missions described in subparagraphs (A) and (B).
‘‘(5) The agency awards the contract in accord-
ance with section 303B of this title.
‘‘(d) 
SOLICITATION
TO
STATE
NUMBER
OF
OFFERORS TO BE SELECTED
FOR PHASE TWO RE-
QUESTS FOR COMPETITIVE PROPOSALS.—A solicitation
issued pursuant to the precedures 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 deter-
mines with respect to an individual solicitation that a spec-
ified number greater than 5 is in the Government’s inter-
est and is consistent with the purposes and objectives of
the two-phase selection process.
‘‘(e) REQUIREMENT FOR GUIDANCE AND REGULA-
TIONS.—The Federal Acquisition Regulatory Council, es-
tablished by section 25(a) of the Office of Federal Pro-
curement Policy Act (41 U.S.C. 421(a)), shall provide
guidance and promulgate regulations—
‘‘(1) regarding the factors that may be consid-
ered in determining whether the two-phase contract-
ing procedures authorized by subsection (a) are ap-
propriate 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 Government-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. Two-phase selection procedures.’’.
TITLE II—COMMERCIAL ITEMS
SEC. 201. COMMERCIAL ITEM EXCEPTION TO REQUIRE-
MENT FOR COST OR PRICING DATA AND IN-
FORMATION LIMITATIONS.
(a) ARMED
SERVICES
ACQUISITIONS.—(1) Sub-
sections (b), (c), and (d) of section 2306a of title 10, Unit-
ed 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 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
commercial item that is not covered by the exception
on the submission of cost or pricing data in para-
graph (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 acquisi-
tion of a commercial item to a contract or sub-
contract for the acquisition of an item other
than a commercial item.
‘‘(c) AUTHORITY TO REQUIRE COST OR PRICING
DATA ON BELOW-THRESHOLD CONTRACTS.—(1) Subject
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
evaluating the reasonableness of the price of the pro-
posed 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
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 sub-
section (h).
(3) Section 2375 of title 10, United States Code, is
amended by striking out subsection (c).
(b) CIVILIAN
AGENCY
ACQUISITIONS.—(1) Sub-
sections (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 modi-
fication 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
commercial item that is not covered by the exception
on the submission of cost or pricing data in para-
graph (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 acquisi-
tion of a commercial item to a contract or sub-
contract for the acquisition of an item other
than a commercial item.
‘‘(c) AUTHORITY TO REQUIRE COST OR PRICING
DATA ON BELOW-THRESHOLD CONTRACTS.—(1) Subject
to paragraph (2), when certified cost or pricing data are
not required to be submitted by subsection (a) for a con-
tract, subcontract, or modification of a contract or sub-
contract, 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 dele-
gate the functions under this paragraph.
‘‘(d) LIMITATIONS ON OTHER INFORMATION.—The
Federal Acquisition Regulation shall include the following:
‘‘(1) Provisions concerning the types of infor-
mation that contracting officers may consider in de-
termining 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
evaluating the reasonableness of the price of the pro-
posed 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
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 sub-
section (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
section 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
paragraph:
‘‘(4) The Federal Acquisition Regulation shall pro-
vide 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 Serv-
ices 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
paragraph:
‘‘(5) The Federal Acquisition Regulation shall pro-
vide 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
amended—
(1) in subsection (a)(5) (as redesignated by sec-
tion 101(c))—
(A) by striking out ‘‘limited’’; and
(B) by inserting before ‘‘submission’’ the
following: ‘‘issuance of solicitations and the’’;
and
(2) in subsection (b)(6), by striking out
‘‘threshold—’’ and inserting in lieu thereof ‘‘thresh-
old, 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 Procure-
ment 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 acquisi-
tion 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 (con-
tained 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 CER-
TIFICATION REQUIREMENTS.—
(1) 
CURRENT
CERTIFICATION
REQUIRE-
MENTS.—(A) Not later than 210 days after the date
of the enactment of this Act, any certification re-
quired of contractors or offerors by the Federal Ac-
quisition Regulation that is not specifically imposed
by statute shall be removed by the Administrator for
Federal Procurement Policy from the Federal Acqui-
sition 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 re-
quired of contractors or offerors by a procurement
regulation of an executive agency that is not specifi-
cally imposed by statute shall be removed by the
head of the executive 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
department 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 Tech-
nology.
(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 Ac-
quisition’’; and
(iii) by adding at the end the following new
subsection:
‘‘(c) PROHIBITION
ON CERTIFICATION REQUIRE-
MENTS.—(1) A requirement for a certification by a con-
tractor or offeror may not be included in the Federal Ac-
quisition Regulation unless—
‘‘(A) the certification is specifically imposed by
statute; or
‘‘(B) written justification for such certification
is provided to the Administrator for Federal Pro-
curement Policy by the Federal Acquisition Regu-
latory Council, and the Administrator approves in
writing the inclusion of such certification.
‘‘(2)(A) A requirement for a certification by a con-
tractor or offeror may not be included in a procurement
regulation 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
department means the Secretary of Defense.
‘‘(C) The Secretary of Defense may delegate his du-
ties under this paragraph only to the Under Secretary of
Defense for Acquisition and Technology.’’.
(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 fur-
ther amended by adding after subsection (a) the following
new subsection:
‘‘(b) CONSTRUCTION OF CERTIFICATION REQUIRE-
MENTS.—A provision of law may not be construed as re-
quiring a certification by a contractor or offeror in a pro-
curement made or to be made by the Federal Government
unless that provision of law specifically refers to this sub-
section and provides that, notwithstanding this subsection,
such a certification shall be required.’’.
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 October 1, 1996, and shall expire on
October 1, 2000. Contracts entered into before such au-
thority expires in an agency pursuant to a test shall re-
main in effect, notwithstanding the expiration of the au-
thority 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 de-
scribed 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 fis-
cal years through fiscal year 2000 by the Direc-
tor 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 dur-
ing the period beginning on October 1, 1996, and ending
on September 30, 2000.
SEC. 305. PROCUREMENT INTEGRITY.
(a) AMENDMENT OF PROCUREMENT INTEGRITY PRO-
VISION.—Section 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
CONTRACTOR BID OR PROPOSAL INFORMA-
TION OR SOURCE SELECTION INFORMATION.
‘‘(a) PROHIBITION ON DISCLOSING PROCUREMENT
INFORMATION.—(1) A person described in paragraph (2)
shall not, other than as provided by law, knowingly dis-
close contractor bid or proposal information or source se-
lection 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 re-
lationship has or had access to contractor bid or pro-
posal information or source selection information.
‘‘(b) PROHIBITION
ON OBTAINING PROCUREMENT
INFORMATION.—A person shall not, other than as pro-
vided 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) 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
issued by the Defense Board or the Civilian Board in con-
nection 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 con-
stituting 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 con-
stituting 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
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 of-
fered 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 or-
ganization received or offered for the prohibited con-
duct.
‘‘(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
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 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 evi-
dence, that the contractor or someone act-
ing for the contractor has engaged in con-
duct constituting such an offense.
‘‘(iii) Initiation of suspension or debarment
proceedings for the protection of the Govern-
ment in accordance with procedures in the Fed-
eral 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 pre-
scribed by law, the amount expended under the con-
tract.
‘‘(C) For purposes of any suspension or debar-
ment proceedings initiated pursuant to subpara-
graph (A)(iii), engaging in conduct constituting an
offense under subsection (a), (b), or (c) affects the
present responsibility of a Government contractor or
subcontractor.
‘‘(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 section, and section 304A(h) of Federal
Property and Administrative Services Act of
1949 (41 U.S.C. 254b(h), with respect to pro-
curements 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
applicable law or regulation.
‘‘(D) Information marked by the contrac-
tor 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 evaluat-
ing 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 open-
ing.
‘‘(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 propos-
als.
‘‘(G) Competitive range determinations
that identify proposals that have a reasonable
chance of being selected for award of a con-
tract.
‘‘(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
determination by the head of the agency, his
designee, or the contracting officer that its dis-
closure would jeopardize the integrity or suc-
cessful completion of the Federal agency pro-
curement to which the information relates.
‘‘(3) The term ‘Federal agency’ has the mean-
ing provided such term in section 3 of the Federal
Property 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
person who, by appointment in accordance with ap-
plicable regulations, has the authority to enter into
a Federal 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 objec-
tion 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 Fed-
eral agency procurement contract alleging an offense
under subsection (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 re-
ported to the Federal agency responsible for the procure-
ment information that the person believed constituted evi-
dence 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 receiving that information;
‘‘(3) restrict the disclosure or receipt of infor-
mation relating to a Federal agency procurement
after it has been canceled by the Federal agency be-
fore contract award unless the Federal agency plans
to resume the procurement;
‘‘(4) prohibit individual meetings between a
Federal agency employee and an offeror or potential
offeror for, or a recipient of, a contract or sub-
contract under a Federal agency procurement, pro-
vided that unauthorized disclosure or receipt of con-
tractor bid or proposal information or source selec-
tion 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
General, 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 estab-
lished under any other law or regulation.’’.
(b) REPEALS.—The following provisions of law are
repealed:
(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
amended by striking out the items relating to sec-
tions 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 re-
designating 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 PROCURE-
MENT POLICY.—(1) Section 5(a) of the Office of Federal
Procurement Policy Act (41 U.S.C. 404) is amended to
read as follows:
‘‘(a) To promote economy, efficiency, and effective-
ness 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 provide 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) Sec-
tions 10 and 11 of the Office of Federal Procurement Pol-
icy 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 (con-
tained in section 1(b)) is amended by striking out the
items relating to sections 2, 3, 8, 10, and 11.
(e) REPEAL
OF
DATA
COLLECTION
REQUIRE-
MENT.—Subsection (h) of section 111 of the Federal
Property and Administrative Services Act of 1949 (40
U.S.C. 759) is repealed.
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
operational phase of the program;
‘‘(2) fails to achieve at least 50 percent of the
performance capability goals established for the de-
velopment, procurement, or operational phase of the
program; or
‘‘(3) is more than 50 percent behind schedule,
as determined in accordance with the schedule goal
established for the development, procurement, or
operational 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 Streamlin-
ing 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
SYSTEM 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 im-
posed, under the system exclusively, or primarily, on
the basis of the contributions of personnel to the
performance 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 Streamlin-
ing 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), respec-
tively;
(2) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively;
(3) by inserting ‘‘(1)’’ after ‘‘(c) ENHANCED
SYSTEM 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
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 im-
posed, under the system exclusively, or primarily, on
the basis of the contributions of personnel to the
performance 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 Stream-
lining 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
inserting in lieu thereof the following: ‘‘; (2) to en-
sure that the regulations compress the time periods
associated with developing, procuring, and making
operational new systems; and (3) to ensure that De-
partment of Defense directives relating to develop-
ment and procurement of information systems (num-
bered in the 8000 series) and the Department of De-
fense directives numbered in the 5000 series are
consolidated into one series of directives that is con-
sistent with such compressed time periods.’’.
SEC. 310. RAPID CONTRACTING GOAL.
(a) GOAL.—The Office of Federal Procurement Pol-
icy Act, as amended by section 106, is further amended
by adding 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 add-
ing 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 ex-
tent possible,’’.
(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
matter preceding paragraph (1) by striking out ‘‘may’’
and inserting in lieu thereof ‘‘shall, to the maximum ex-
tent possible,’’.
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 insert-
ing 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, sched-
ule, or performance parameters to the benefit of the Unit-
ed States and may be penalized for failing to adhere to
cost, schedule, or performance parameters to the det-
riment of the United States.’’.
(2) The table of sections at the beginning of such
chapter 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 perform-
ance 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, sched-
ule, or performance parameters to the benefit of the Unit-
ed States and may be penalized for failing to adhere to
cost, schedule, or performance parameters to the det-
riment of the United States.’’.
(2) The table of contents for such Act, contained in
section 1(b), is amended by inserting after the item relat-
ing to section 304C the following new item:
‘‘Sec. 304D. Contractor share of gains and losses from cost, schedule, and per-
formance experience.’’.
SEC. 313. PHASE FUNDING OF DEFENSE ACQUISITION PRO-
GRAMS.
Chapter 131 of title 10, United States Code, is
amended 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 de-
velopment, procurement, or operational phase of an acqui-
sition program for which an authorization of appropria-
tions is required by section 114 of this title, the Secretary
of Defense shall submit to Congress information about the
objectives and plans for the conduct of that phase and the
funding requirements for the entire phase. The informa-
tion shall identify the intended user of the system to be
acquired under the program and shall include objective,
quantifiable criteria 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
chapter 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 CON-
TRACT 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 manage-
ment 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 manage-
ment processes of the Department of Defense.
(2) Deviations of the Department of Defense
payment procedures and financial management sys-
tems from the standards developed pursuant to sub-
section (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 acqui-
sition 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 require-
ments’’.
(2) Section 1724(a)(2) of such title is amended by
inserting before the semicolon at the end the following:
‘‘and have demonstrated proficiency in the performance of
acquisition duties in the contracting position or positions
previously 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
period 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
period 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) AUTHORITY TO CONDUCT DEFENSE FACILITY-
WIDE PILOT PROGRAM.—The Secretary of Defense may
conduct a pilot program, to be known as the ‘‘defense fa-
cility-wide pilot program’’, for the purpose of determining
the potential for increasing the efficiency and effectiveness
of the acquisition process in facilities.
(b) SCOPE OF PROGRAM.—At a facility designated as
a participant in the pilot program, the pilot program shall
consist of the following:
(1) All contracts and subcontracts for defense
supplies and services that are performed at the facil-
ity.
(2) All contracts and subcontracts performed
elsewhere that the Secretary determines are directly
and substantially related to the production of de-
fense supplies and services at the facility and are
necessary for the pilot program.
(c) DESIGNATION OF PARTICIPATING FACILITIES.—
(1) The Secretary may designate up to two facilities as
participants in the defense facility-wide pilot program.
(2) Subject to subsection (g), the Secretary may de-
termine the scope and duration of a designation made
under this paragraph.
(d) CRITERIA
FOR DESIGNATION.—(1) Not later
than 90 days after the date of the enactment of this Act,
the Secretary shall provide to the congressional defense
committees a detailed description of the proposed criteria
to be used in selecting facilities for designation as partici-
pants in the defense facility-wide pilot program. The Sec-
retary may not select any facilities for participation in the
program until at least 30 days have passed after providing
such criteria.
(2) After selecting both facilities for designation as
participants in the program, the Secretary shall notify the
congressional defense committees of the selection and sub-
mit a description—
(A) of the management goals and objectives in-
tended to be achieved for each facility selected; and
(B) of the method by which the Secretary in-
tends to monitor and measure the performance of
the selected facilities in meeting such management
goals and objectives.
(3)(A) In developing the criteria referred to para-
graph (1), the Secretary shall ensure that such criteria
reflect the following objectives:
(i) A significant reduction of the cost to the
Government for programs carried out at the des-
ignated facilities.
(ii) A reduction of the schedule associated with
programs carried out at the designated facilities.
(iii) An increased used of commercial practices
and procedures for programs carried at the des-
ignated facilities.
(iv) That the designation of a facility under
subsection (c) does not place a competing domestic
manufacturer at a significant competitive disadvan-
tage.
(B) The criteria shall also require that, with respect
to any facility designated under subsection (c), all or sub-
stantially all of the contracts to be awarded and performed
at the facility after the designation, and all or substan-
tially all of the subcontracts to be awarded under those
contracts and performed at the facility after the designa-
tion, will be—
(i) for the production of supplies or services on
a firm-fixed price basis;
(ii) awarded without requiring the contractors
or subcontractors to provide certified cost or pricing
data pursuant to section 2306a of title 10, United
States Code; and
(iii) awarded and administered without the ap-
plication of cost accounting standards under section
26(f) of the Office of Federal Procurement Policy
Act (41 U.S.C. 422(f)).
(e) EXEMPTION FROM CERTAIN REQUIREMENTS.—
In the case of a contract or subcontract that is to be per-
formed at a facility designated for participation in the de-
fense facility-wide pilot program and that is subject to sec-
tion 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 Secretary of Defense may exempt such
contract or subcontract from the requirement to obtain
certified cost or pricing data under such section 2306a or
the requirement to apply mandatory cost accounting
standards under such section 26(f) if the Secretary deter-
mines that the contract or subcontract—
(1) is within the scope of the pilot program (as
described in subsection (b)); and
(2) is fairly and reasonably priced based on in-
formation other than certified cost and pricing data.
(f) SPECIAL AUTHORITY.—The authority provided
under subsection (a) may include authority for the Sec-
retary of Defense—
(1) to apply any amendment or repeal of a pro-
vision of law made in this Act to the pilot program
before the effective date of such amendment or re-
peal; and
(2) to apply to a procurement of items other
than commercial items under such program—
(A) any authority provided in the Federal
Acquisition Streamlining Act of 1994 (Public
Law 103–355) (or in an amendment made by
a provision of that Act) to waive a provision of
law in the case of commercial items, and
(B) any exception applicable under this
Act or the Federal Acquisition Streamlining Act
of 1994 (Public Law 103–355) (or an amend-
ment 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 deter-
mines necessary to test the application of such waiv-
er or exception to procurements of items other than
commercial items.
(g) APPLICABILITY.—(1) Subsections (e) and (f)
apply with respect to—
(A) a contract that is awarded or modified dur-
ing the period described in paragraph (2); and
(B) a contract that is awarded before the begin-
ning of such period and is to be performed (or may
be performed), in whole or in part, during such pe-
riod.
(2) The period referred to in paragraph (1) is the
period that begins 45 days after the date of the enactment
of this Act and ends on September 30, 1998.
(h) 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 ap-
propriate and in accordance with the law, adopt commer-
cial practices in the administration of contracts and sub-
contracts. Such commercial practices may include elimi-
nation of Government audit and access to records provi-
sions; incorporation of commercial oversight, inspection,
and acceptance procedures; use of alternative dispute reso-
lution techniques (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
Federal 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 es-
tablish and maintain effective value engineering proce-
dures and processes.
‘‘(b) THRESHOLD.—The procedures and processes
established pursuant to subsection (a) shall be applied to
those programs, projects, systems, and products of an ex-
ecutive 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, prod-
uct, 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 add-
ing at the end the following new item:
‘‘Sec. 37. Value engineering.’’.
SEC. 318. ACQUISITION WORKFORCE.
(a) ACQUISITION WORKFORCE.—(1) The Office of
Federal 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
Administrator for Federal Procurement Policy, shall
establish policies and procedures for the effective
management (including accession, education, train-
ing, career development, and performance incentives)
of the acquisition workforce of the agency. The de-
velopment 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 section 2301(b) of title 5, United States
Code.
‘‘(2) UNIFORM
IMPLEMENTATION.—The head
of each executive agency shall ensure that, to the
maximum extent practicable, acquisition workforce
policies and procedures established are uniform in
their implementation throughout the agency.
‘‘(3) GOVERNMENT-WIDE POLICIES AND EVAL-
UATION.—The Administrator shall issue policies to
promote uniform implementation of this section by
executive agencies, with due regard for differences in
program requirements among agencies that may be
appropriate and warranted in view of the agency
mission. The Administrator shall coordinate with the
Deputy Director for Management of the Office of
Management and Budget to ensure that such poli-
cies are consistent with the policies and procedures
established and enhanced system of incentives pro-
vided pursuant to section 5051(c) of the Federal Ac-
quisition Streamlining Act of 1994 (41 U.S.C. 263
note). The Administrator shall evaluate the imple-
mentation of the provisions of this section by execu-
tive agencies.
‘‘(c) SENIOR PROCUREMENT EXECUTIVE AUTHORI-
TIES AND RESPONSIBILITIES.—Subject to the authority,
direction, 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 accord-
ance with this section are implemented throughout the
agency.
‘‘(d) MANAGEMENT INFORMATION SYSTEMS.—The
Administrator shall ensure that the heads of executive
agencies collect and maintain standardized information on
the acquisition workforce related to implementation of this
section. To the maximum extent practicable, such data re-
quirements shall conform to standards established by the
Office of Personnel Management for the Central Personnel
Data File.
‘‘(e) ACQUISITION WORKFORCE.—The programs es-
tablished 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 ap-
pointed as contracting officers whose authority exceeds the
micro-purchase threshold, as that term is defined in sec-
tion 32(g). The head of each executive agency may include
employees in other series who perform acquisition or ac-
quisition-related 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
acquisition are identified in terms of the education,
training, experience, and assignments necessary for
career progression to the most senior acquisition po-
sitions. 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 agen-
cy 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 appro-
priate coverage of the critical duties and tasks iden-
tified by the Director of the Federal Acquisition In-
stitute.
‘‘(3) 
MANDATORY
TRAINING
AND
EDU-
CATION.—For each career path, the head of each ex-
ecutive agency 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 career path. The head of each executive
agency shall also encourage employees to maintain
‘‘(1) GENERAL
SCHEDULE
CONTRACTING
SE-
RIES (GS–1102).—
‘‘(A) ENTRY
LEVEL
QUALIFICATIONS.—
The Director of the Office of Personnel Man-
agement shall require that, after October 1,
1996, a person may not be appointed to a posi-
tion in the GS–1102 occupational series unless
the person—
‘‘(i) has received a baccalaureate de-
gree from an accredited educational insti-
tution authorized to grant baccalaureate
degrees,
‘‘(ii) has completed at least 24 semes-
ter credit hours (or the equivalent) of
study from an accredited institution of
higher education in any of the following
disciplines: accounting, business finance,
law, contracts, purchasing, economics, in-
dustrial management, marketing, quan-
titative methods, or organization and man-
agement, 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 Person-
100
nel Management, to demonstrate the
judgmental skills necessary for positions in
this series.
‘‘(B) QUALIFICATIONS FOR SENIOR CON-
TRACTING POSITIONS.—The Director of the Of-
fice of Personnel Management shall require
that, after October 1, 1996, persons may be ap-
pointed to positions at and above full perform-
ance 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 Di-
rector for such positions.
However, this requirement shall apply to per-
sons employed on October 1, 1996, in GS–1102
positions at those grade levels only as a pre-
requisite for promotion to a GS–1102 position
at a higher grade.
101
‘‘(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 per-
son—
‘‘(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 dem-
onstrate the judgmental skills necessary for po-
sitions 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 contracting officer with authority to award or
administer contracts for amounts above the micro-
purchase threshold, as that term is defined in sec-
tion 32(g), only if the person—
‘‘(A) has successfully completed all manda-
tory training required of an employee in an
102
equivalent GS–1102 or 1105 position under
subsection (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 estab-
lished 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
103
‘‘(iv) include provisions for withdrawing or
terminating the appointment prior to the sched-
uled expiration date, where appropriate.
‘‘(5) WAIVER.—The senior procurement execu-
tive 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
potential for advancement to levels of greater re-
sponsibility and authority, based on demonstrated
job performance and qualifying experience. This au-
thority may not be redelegated by the senior pro-
curement executive. With respect to each waiver
granted under this subsection, the senior procure-
ment executive shall set forth in writing the ration-
ale for the decision to waive such requirements.
‘‘(h) PROGRAM ESTABLISHMENT AND IMPLEMENTA-
TION.—
‘‘(1) FUNDING LEVELS.—(A) The head of an
executive 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
percent of the base aggregate salary cost of the
acquisition workforce subject to this section for
that fiscal year; and
104
‘‘(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
agreement with another agency to participate in pro-
grams established under this section on a reimburs-
able 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 (in-
cluding a full-time course of study leading to a de-
gree) for acquisition personnel in the agency related
to the purposes of this section.
‘‘(4) INTERN PROGRAMS.—The head of each ex-
ecutive agency may establish intern programs in
105
order to recruit highly qualified and talented individ-
uals and provide them with opportunities for acceler-
ated promotions, career broadening assignments,
and specified training for advancement to senior ac-
quisition positions. For such programs, the head of
an executive agency, without regard to the provisions
of title 5, United States Code, may appoint individ-
uals to competitive GS–5, GS–7, or GS–9 positions
in the General Schedule Contracting series (GS–
1102) who have graduated from baccalaureate or
master’s programs in purchasing or contracting
from accredited educational institutions authorized
to grant baccalaureate and master’s degrees.
‘‘(5) COOPERATIVE
EDUCATION
PROGRAM.—
The head of each executive agency may establish an
agencywide cooperative education credit program for
acquisition positions. Under the program, the head
of the executive agency may enter into cooperative
arrangements with one or more accredited institu-
tions of higher education which provide for such in-
stitutions to grant undergraduate credit for work
performed in such position.
‘‘(6) SCHOLARSHIP PROGRAM.—
‘‘(A) ESTABLISHMENT.—Where deemed
appropriate, the head of each executive agency
106
may establish a scholarship program for the
purpose of qualifying individuals for acquisition
positions 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 grad-
uate degrees (as appropriate);
‘‘(ii) be pursuing a course of edu-
cation 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 po-
sition in return for payment of educational
assistance as provided in the agreement;
and
107
‘‘(iv) meet such other requirements as
the head of the agency prescribes.
‘‘(C) AGREEMENT.—An agreement be-
tween the head of an executive agency and a
participant 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 education in a qualifying field of study.
The assistance may include payment of
tuition, fees, books, laboratory expenses,
and a stipend.
‘‘(ii) The participant’s agreement—
‘‘(I) to accept such educational
assistance,
‘‘(II) to maintain enrollment and
attendance in the course of education
until completed,
‘‘(III) while enrolled in such
course, to maintain an acceptable level
108
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 assist-
ance 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
agreement 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
109
be recovered by the Government from the em-
ployee (or the estate of the employee) by setoff
against accrued pay, compensation, amount of
retirement credit, or other amount due the em-
ployee from the Government; 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 suc-
cessfully completes a course of education re-
quired by an agreement under this paragraph.
If no position is offered, the agreement shall be
considered terminated.’’.
(2) The table of contents for such Act, contained in
section 1(b), is amended by adding at the end the follow-
ing new item:
‘‘Sec. 38. Acquisition workforce.’’.
110
(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
professional procurement work force’’ and inserting
in lieu thereof ‘‘the development of a professional ac-
quisition 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 in-
serting 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
Management, the heads of executive agencies,
and, through periodic surveys, from individual
employees;
‘‘(E) periodically analyze acquisition career
fields to identify critical competencies, duties,
111
tasks, and related academic prerequisites, skills,
and knowledge;
‘‘(F) coordinate and assist agencies in
identifying 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;
‘‘(H) evaluate the effectiveness of training
and career development programs for acquisi-
tion 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.’’.
112
SEC. 319. DEMONSTRATION PROJECT RELATING TO CER-
TAIN PERSONNEL MANAGEMENT POLICIES
AND PROCEDURES.
(a) COMMENCEMENT.—The Secretary of Defense is
encouraged to take such steps as may be necessary to pro-
vide for the commencement of a demonstration project,
the purpose of which would be to determine the feasibility
or desirability of one or more proposals for improving the
personnel management policies or procedures that apply
with respect to the acquisition workforce of the Depart-
ment of Defense.
(b) TERMS AND CONDITIONS.—
(1) IN
GENERAL.—Except as otherwise pro-
vided in this subsection, any demonstration project
described in subsection (a) shall be subject to section
4703 of title 5, United States Code, and all other
provisions of such title that apply with respect to
any demonstration project under such section.
(2) EXCEPTIONS.—Subject to paragraph (3), in
applying section 4703 of title 5, United States Code,
with respect to a demonstration project described in
subsection (a)—
(A) ‘‘180 days’’ in subsection (b)(4) of
such section shall be deemed to read ‘‘120
days’’;
113
(B) ‘‘90 days’’ in subsection (b)(6) of such
section shall be deemed to read ‘‘30 days’’; and
(C) subsection (d)(1)(A) of such section
shall be disregarded.
(3) CONDITION.—Paragraph (2) shall not apply
with respect to a demonstration project unless it—
(A) involves only the acquisition workforce
of the Department of Defense (or any part
thereof); and
(B) commences during the 3-year period
beginning on the date of the enactment of this
Act.
(c) DEFINITION.—For purposes of this section, the
term ‘‘acquisition workforce’’ refers to the persons serving
in acquisition positions within the Department of Defense,
as designated pursuant to section 1721(a) of title 10,
United States Code.
SEC. 320. COOPERATIVE PURCHASING.
(a) DELAY IN OPENING CERTAIN FEDERAL SUPPLY
SCHEDULES TO USE BY STATE, LOCAL, AND INDIAN
TRIBAL GOVERNMENTS.—The Administrator of General
Services may not use the authority of section 201(b)(2)
of the Federal Property and Administrative Services Act
of 1949 (40 U.S.C. 481(b)(2)) to provide for the use of
114
Federal supply schedules of the General Services Adminis-
tration until after the later of—
(1) the date on which the 14-month period be-
ginning on the date of the enactment of this Act ex-
pires; or
(2) the date on which all of the following condi-
tions are met:
(A) The Administrator has considered the
report of the Comptroller General required by
subsection (b).
(B) The Administrator has submitted com-
ments on such report to the congressional com-
mittees as required by subsection (c).
(C) A period of 30 days after the date of
submission of such comments to the congres-
sional committees referred to in subsection (d)
has expired.
(b) REPORT.—Not later than one year after the date
of the enactment of this Act, the Comptroller General shall
submit to the Administrator of General Services and to
the congressional committees referred to in subsection (d)
a report on the implementation of section 201(b) of the
Federal Property and Administrative Services Act of
1949. The report shall include the following:
115
(1) An assessment of the effect on industry, in-
cluding small businesses and local dealers, of provid-
ing for the use of Federal supply schedules by the
entities described in section 201(b)(2)(A) of the
Federal Property and Administrative Services Act of
1949.
(2) An assessment of the effect on such entities
of providing for the use of Federal supply schedules
by them.
(c) COMMENTS ON REPORT BY ADMINISTRATOR.—
Not later than 30 days after receiving the report of the
Comptroller General required by subsection (b), the Ad-
ministrator of General Services shall submit to the con-
gressional committees referred to in subsection (d) com-
ments on the report, including the Administrator’s com-
ments on whether the Administrator plans to provide any
Federal supply schedule for the use of any entity described
in section 201(b)(2)(A) of the Federal Property and Ad-
ministrative Services Act of 1949.
(d) CONGRESSIONAL COMMITTEES.—The report re-
quired by subsection (b) and the comments required by
subsection (c) shall be submitted to the Governmental Af-
fairs Committee of the Senate and the Committee on Gov-
ernment Reform and Oversight of the House of Represent-
atives.
116
(e) CALCULATION OF 30-DAY PERIOD.—For pur-
poses of subsection (a)(2)(C), the calculation of the 30-
day period shall exclude Saturdays, Sundays, and holi-
days, and any day on which neither House of Congress
is in session because of an adjournment sine die, a recess
of more than 3 days, or an adjournment of more than
3 days.
TITLE IV—STREAMLINING OF
DISPUTE RESOLUTION
Subtitle A—General Provisions
SEC. 401. DEFINITIONS.
(a) IN GENERAL.—The Office of Federal Procure-
ment 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:
‘‘(1) The term ‘Defense Board’ means the De-
partment of Defense Board of Contract Appeals es-
tablished pursuant to section 8(a) of the Contract
Disputes Act of 1978 (41 U.S.C. 607).
‘‘(2) The term ‘Civilian Board’ means the Civil-
ian Board of Contract Appeals established pursuant
117
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
matters within its jurisdiction; and
‘‘(B) the Civilian Board with respect to
matters within its jurisdiction.
‘‘(6) The term ‘executive agency’—
‘‘(A) with respect to contract disputes and
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
‘‘(B) with respect to contract disputes and
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 in-
clude the Department of Defense, the Depart-
118
ment of the Army, the Department of the Navy,
and the Department of the Air Force.
‘‘(7) The term ‘alternative means of dispute
resolution’ has the meaning given by section 571(3)
of title 5, United States Code.
‘‘(8) The term ‘protest’ means a written objec-
tion 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.
‘‘(9) The term ‘interested party’, with respect
to a contract or a solicitation or other request for of-
fers, means an actual or prospective bidder or
offeror whose direct economic interest would be af-
fected by the award of the contract or by failure to
award the contract.
‘‘(10) The term ‘prevailing party’, with respect
to a determination of the Board under section
214(h)(2) that a decision of the head of an executive
agency is arbitrary or capricious or violates a statute
or regulation, means a party that showed that the
119
decision was arbitrary or capricious or violated a
statute or regulation.’’.
(b) CONFORMING
AMENDMENTS.—The Office of
Federal Procurement Policy Act (41 U.S.C. 401 et seq.)
is further 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
otherwise 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 De-
fense a board of contract appeals to be known as the De-
partment of Defense Board of Contract Appeals.
‘‘(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.’’.
120
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 Secretary of De-
fense from a register of applicants maintained by the De-
fense Board, in accordance with rules issued by the De-
fense Board for establishing and maintaining a register
of eligible applicants and selecting Defense Board judges.
The Secretary shall appoint a judge without regard to po-
litical affiliation and solely on the basis of the professional
qualifications required to perform the duties and respon-
sibilities of a Defense Board judge.
‘‘(B) The Civilian Board shall consist of judges ap-
pointed by the Administrator of General Services from a
register of applicants maintained by the Civilian Board,
in accordance with rules issued by the Civilian Board for
establishing and maintaining a register of eligible appli-
cants and selecting Civilian Board judges. The Adminis-
trator shall appoint a judge without regard to political af-
filiation and solely on the basis of the professional quali-
fications required to perform the duties and responsibil-
ities of a Civilian Board judge.
121
‘‘(2) The members of the Defense Board and the Ci-
vilian Board shall be selected and appointed to serve in
the same manner as administrative law judges appointed
pursuant to section 3105 of title 5, United States Code,
with an additional requirement that such members shall
have had not fewer than five years of experience in public
contract 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
member of the Armed Services Board of Contract
Appeals serving as such on the day before the effec-
tive date of this title.
‘‘(B) For the Civilian Board, any full-time
member of any agency board of contract appeals
other than the Armed Services Board of Contract
Appeals serving as such on the day before the effec-
tive date of this title.
‘‘(C) For either the Defense Board or the Civil-
ian Board, any person serving on the day before the
effective date of this title in a position at a level of
assistant general counsel or higher with authority
delegated from the Comptroller General to decide
122
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.
‘‘(c) COMPENSATION.—Compensation for the Chair-
man of the Defense Board and the Chairman of the Civil-
ian Board and all other members of each Board shall be
determined 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
Defense Board shall be designated by the Secretary of De-
fense 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
123
Comptroller General to decide bid protests under
subchapter V of chapter 35 of title 31, United
States Code (as in effect on the day before the effec-
tive date of this title).
‘‘(B) The Chairman of the Civilian Board shall be
designated by the Administrator of General Services to
serve for a term of five years. The Administrator shall se-
lect the 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 con-
tract appeals other than 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
subchapter V of chapter 35 of title 31, United
States Code (as in effect on the day before the effec-
tive 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 execu-
124
tive 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 Chair-
man considers necessary or appropriate, including a
Clerk 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 De-
fense Board or the Civilian Board, as the case may be,
may designate 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 protests, and, if such division is made, shall as-
125
sign 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 Chairman.’’.
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.
‘‘(a) IN GENERAL.—Except as provided by section
452 of the Federal Acquisition Reform Act of 1995, the
Chairman of the Defense Board and the Chairman of the
Civilian Board shall jointly issue and maintain—
‘‘(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 applicabil-
ity with respect to such functions.
‘‘(b) BOARD PROCEDURES.—In issuing procedural
rules and regulations for the exercise of the Boards’ pro-
test function under section 214, the Chairmen shall take
due notice of executive agency procedures for the resolu-
tion of protests as a discretionary alternative to resolution
of protests by the Boards and shall ensure that the rules
and regulations governing the time for filing protests with
126
the Boards make appropriate allowance for the use of such
executive agency procedures by interested parties.’’.
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.’’.
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:
127
‘‘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
REQUEST.—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
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
resolution, pursuant to this section, later becomes the sub-
ject of formal proceedings before such Board, any Board
judge or employee who was involved in the alternative
128
means of dispute resolution shall, if requested by any
party to the formal proceeding, take no part in that pro-
ceeding.’’.
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 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 alter-
native means of dispute resolution are not appropriate for
resolution of the dispute or protest.’’.
129
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 pro-
vided by section 8(a) of the Contract Disputes Act of 1978
(41 U.S.C. 601–613). The Civilian Board shall have juris-
diction 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
review, as provided in this section, any decision by the
head of the executive agency alleged to be arbitrary or ca-
pricious or to violate a statute or regulation. 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. The protester may
130
prevail only by showing that the decision was arbitrary
or capricious or violated a statute or regulation.
‘‘(c) NOTIFICATION.—Within one day after the re-
ceipt of a protest, the Board concerned shall notify the
executive agency involved of the protest.
‘‘(d) SUSPENSION OF CONTRACT AWARD.—(1) Ex-
cept 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 protest is pending.
‘‘(2) The head of the procuring activity responsible
for award of a contract may authorize the award of the
contract (notwithstanding a protest of which the executive
agency has notice under this section)—
‘‘(A) upon a written finding that urgent and
compelling circumstances which significantly affect
interests of the United States will not permit wait-
ing for the decision of the Board concerned under
this section; 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
131
is otherwise likely to occur within 30 days after the mak-
ing of such finding.
‘‘(4) The suspension of the award under paragraph
(1) shall not preclude the executive agency concerned from
continuing the procurement process up to but not includ-
ing 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
performance of the contract and engage in any related ac-
tivities that result in obligations being incurred by the
United States under the contract unless the contracting
officer responsible for the award of the contract withholds
authorization to proceed with performance of the contract.
‘‘(2) The contracting officer may withhold an author-
ization to proceed with performance of the contract during
the period described in paragraph (4) if the contracting
officer 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)—
132
‘‘(i) the contracting officer may not authorize
performance of the contract to begin while the pro-
test is pending; or
‘‘(ii) if authorization for contract performance
to proceed was not withheld in accordance with
paragraph (2) before receipt of the notice, the con-
tracting officer shall immediately direct the contrac-
tor to cease performance under the contract and to
suspend any related activities that may result in ad-
ditional obligations 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 author-
ize the performance of the contract (notwithstanding a
protest of which the executive agency has notice under this
section)—
‘‘(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.
133
‘‘(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 de-
briefing that is requested and, when requested, is re-
quired.
‘‘(f) The authority of the head of the procuring activ-
ity to make findings and to authorize the award and per-
formance of contracts under subsections (d) and (e) of this
section may not be delegated.
‘‘(g) PROCEDURES.—
‘‘(1) 
PROCEEDINGS
AND
DISCOVERY.—The
Board concerned shall conduct proceedings and
allow discovery to the minimum extent necessary for
the expeditious, fair, and cost-effective resolution of
the protest. The Board shall allow discovery only in
a case in which the Board determines that the writ-
ten submissions of the parties do not provide an ade-
quate basis for a fair resolution of the protest. Such
discovery shall be limited to material which is rel-
evant to the grounds of protest or to such affirma-
134
tive 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
contract disputes and alternative dispute services.
Except as provided in paragraph (3), the Board con-
cerned 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 ex-
tent practicable, within the time limits established
for resolution of the initial 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
executive agency involved, is less than $30,000,000
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
written discovery shall be the minimum necessary
135
for the expeditious, fair, and cost-effective resolution
of the protest and shall be allowed only if the Board
determines that the written submissions of the par-
ties do not provide an adequate basis for a fair reso-
lution of the protest. Such protests shall be decided
by a single Board judge. The Board concerned shall
issue its final decision in each such protest within 45
days after the date of the filing of the protest, un-
less 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 deter-
mined by the Chairman.
‘‘(B) If the Chairman of the Board concerned
determines that special and unique circumstances of
a protest that would otherwise qualify for the sim-
plified rules described in subparagraph (A), includ-
ing the complexity of a protest, requires the use of
full procedures 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 proceed-
136
ings are suspended for the purpose of attempting to
resolve 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 de-
scribed 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
137
protest or a portion of the protest is frivolous
or has been brought or pursued in bad faith,
and the protester then promptly withdraws the
protest 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 pro-
test.
‘‘(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 deci-
sion of the head of the executive agency is arbitrary or
capricious or violates a statute or regulation, the Board
concerned may order the agency (or its head) to take such
corrective action as the Board concerned considers appro-
priate. Corrective action includes requiring that the execu-
tive agency—
138
‘‘(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;
‘‘(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
presumed valid as to all goods or services delivered and
accepted under the contract before the corrective action
was ordered.
‘‘(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 (sub-
ject 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 deter-
139
mines that a decision of the head of an executive agency
is arbitrary or capricious or violates a statute or regula-
tion, it may, in accordance with section 1304 of title 31,
United States Code, further declare an appropriate pre-
vailing party to be entitled to the costs of—
‘‘(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, jus-
tifies a higher fee.
‘‘(2) Payment of amounts due from an agency under
paragraph (1) or under the terms of a settlement agree-
ment under subsection (h)(4) shall be made from the ap-
140
propriation made by section 1304 of title 31, United
States Code, for the payment of judgments. The executive
agency concerned shall reimburse that appropriation ac-
count out of funds available for the procurement.
‘‘(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 exec-
utive agency concerned and by any interested party, in-
cluding 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 pro-
vide under any statute or regulation.
‘‘(l) NONEXCLUSIVITY OF REMEDIES.—Nothing con-
tained in this section shall affect the right of any inter-
ested 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:
141
‘‘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 con-
tracts in amounts not greater than the simplified acquisi-
tion threshold.
‘‘(b) CONTRACTS
FOR COMMERCIAL ITEMS.—Not-
withstanding section 34 of this Act, the authority con-
ferred 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.
142
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 AND CORPS BOARDS OF
CONTRACT
APPEALS.—The personnel employed in
connection with, and the assets, liabilities, contracts,
property, records, and unexpended balance of appro-
priations, authorizations, allocations, and other
funds employed, held, used, arising from, available
to, or to be made available in connection with the
functions vested by law in the Armed Services Board
of Contract Appeals and the board of contract ap-
peals of the Corps of Engineers established 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 described in section 451), shall be
transferred 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
143
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 boards of contract appeals established pursu-
ant 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 described in section 451) other
than the Armed Services Board of Contract Appeals,
the board of contract appeals of the Corps of Engi-
neers, and the Postal Service Board of Contract Ap-
peals shall be transferred to the Civilian Board of
Contract Appeals for appropriate allocation by the
Chairman of that Board.
(3) COMPTROLLER GENERAL.—(A) One-quarter
(as determined by the Comptroller General) of the
personnel employed in connection with, and one-
quarter (as determined by the Comptroller General)
of the assets, liabilities, contracts, property, records,
and unexpended balance of appropriations, author-
izations, 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 Comptroller General pursuant to subchapter
V of chapter 35 of title 31, United States Code (as
144
in effect on the day before the effective date de-
scribed in section 451), shall be transferred to the
Civilian Board of Contract Appeals for appropriate
allocation by the Chairman of that Board.
(B) Three-quarters (as determined by the
Comptroller General) of the personnel employed in
connection with, and three-quarters (as determined
by the Comptroller General) of the assets, liabilities,
contracts, property, records, and unexpended bal-
ance of appropriations, authorizations, allocations,
and other funds employed, held, used, arising from,
available to, or to be made available in connection
with the functions vested 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 described in section 451),
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 subtitle 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-
145
tract Appeals shall each prescribe regulations for the re-
lease of competing employees in a reduction in force that
gives due effect to—
(A) efficiency or performance ratings;
(B) military preference; and
(C) tenure of employment.
(2) In prescribing the regulations, the Board con-
cerned 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.—Effective on the effective date described in sec-
tion 451, the boards of contract appeals established pursu-
ant to section 8 of the Contract Disputes Act of 1978 (41
U.S.C. 607) (as in effect on the day before such effective
date) other than the Postal Service Board of Contract Ap-
peals shall terminate.
(b) SAVINGS PROVISION FOR CONTRACT DISPUTE
MATTERS PENDING BEFORE BOARDS.—(1) This title and
the amendments made by this title shall not affect any
proceedings (other than bid protests pending before the
board of contract appeals of the General Services Adminis-
tration) pending on the effective date described in section
146
451 before any board of contract appeals terminated by
subsection (a).
(2) In the case of any such proceedings pending be-
fore the Armed Services Board of Contract Appeals or the
board of contract appeals of the Corps of Engineers, the
proceedings shall be continued by the Department of De-
fense Board of Contract Appeals, and orders which were
issued in any such proceeding by the Armed Services
Board of Contract Appeals or the board of contract ap-
peals of the Corps of Engineers shall continue in effect
until modified, terminated, 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 be-
fore an agency board of contract appeals other than the
Armed Services Board of Contract Appeals or the board
of contract appeals of the Corps of Engineers, the proceed-
ings shall be continued by the Civilian Board of Contract
Appeals, and orders which were issued in any such pro-
ceeding by the agency board shall continue in effect until
modified, terminated, superseded, or revoked by the Civil-
ian 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 pur-
147
suant to section 3553(a) of title 31, United States Code,
or to the board of contract appeals for the General Serv-
ices Administration pursuant to the Brooks Automatic
Data Processing Act (40 U.S.C. 759) on or after the effec-
tive date described in section 451.
(2)(A) In the case of bid protest proceedings pending
before the board of contract appeals of the General Serv-
ices Administration on the effective date described in sec-
tion 451—
(i) with respect to bid protests involving pro-
curements of the Department of Defense, the De-
partment of the Army, the Department of the Navy,
and the Department of the Air Force, the proceed-
ings shall be continued by the Defense Board of
Contract Appeals; and
(ii) with respect to bid protests involving pro-
curements of any other executive agency (as defined
by section 4(1) of the Office of Federal Procurement
Policy Act (41 U.S.C. 403(1)), the proceedings shall
be continued by the Civilian Board of Contract Ap-
peals.
(B) The provisions repealed by section 431(a) shall
continue to apply to such proceedings until the Depart-
ment of Defense Board of Contract Appeals or the Civilian
148
Board of Contract Appeals, as the case may be, deter-
mines such proceedings have been completed.
(3)(A) In the case of bid protest proceedings pending
before the Comptroller General on the effective date de-
scribed in section 451—
(i) with respect to bid protests involving pro-
curements of the Department of Defense, the De-
partment of the Army, the Department of the Navy,
and the Department of the Air Force, the proceed-
ings shall be continued by the Defense Board of
Contract Appeals;
(ii) with respect to bid protests involving pro-
curements of any other executive agency (as defined
by section 4(1) of the Office of Federal Procurement
Policy Act (41 U.S.C. 403(1)), the proceedings shall
be continued by the Civilian Board of Contract Ap-
peals; and
(iii) with respect to bid protests involving pro-
curements of an entity that is not an executive agen-
cy, the proceedings shall be continued by the Comp-
troller General.
(B) The provisions repealed by section 431(b) shall
continue to apply to such bid protest proceedings until the
Department of Defense Board of Contract Appeals, the
Civilian Board of Contract Appeals, or the Comptroller
149
General, as the case may be, determines that such pro-
ceedings 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) in paragraph (2), by striking out ‘‘, the
United States Postal Service, and the Postal Rate
Commission’’;
(2) by amending paragraph (6) to read as fol-
lows:
‘‘(6) the term ‘Defense Board’ means the De-
partment of Defense Board of Contract Appeals es-
tablished under section 8(a) of this Act;’’;
(3) by redesignating paragraph (7) as para-
graph (8); and
(4) 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
section 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—
(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’’;
150
(2) by striking out ‘‘an agency board of con-
tract 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 insert-
ing 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 Defense 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
amended—
(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
Department of the Navy, or the Department of the Air
Force relative to a contract made by that department. The
Civilian Board shall have jurisdiction to decide any appeal
151
from a decision of a contracting officer of any executive
agency (other than the Department of Defense, the De-
partment of the Army, the Department of the Navy, the
Department of the Air Force, the United States Postal
Service, or the Postal Rate Commission) 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 agen-
cy 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
agency board’’ and inserting in lieu thereof ‘‘the De-
fense 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
appeals’’ and inserting in lieu thereof ‘‘the De-
fense 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
152
(7) by striking out subsection (h) and inserting
in lieu thereof the following:
‘‘(h) There is established an agency board of contract
appeals to be known as the ‘Postal Service Board of Con-
tract Appeals’. Such board shall have jurisdiction to decide
any appeal from a decision of a contracting officer of the
United States Postal Service or the Postal Rate Commis-
sion relative to a contract made by either agency. Such
board shall consist of judges appointed by the Postmaster
General who shall meet the qualifications of and serve in
the same manner as judges of the Civilian Board of Con-
tract Appeals. This Act and title II of the Office of Fed-
eral Procurement Policy Act shall apply to contract dis-
putes before the Postal Service Board of Contract Appeals
in the same manner as they apply to contract disputes
before the Civilian Board.’’; and
(8) by striking out subsection (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
agency board’’ and inserting in lieu thereof ‘‘the De-
fense Board and the Civilian Board’’; and
(2) in subsection (b), by striking out ‘‘the agen-
cy board’’ and inserting in lieu thereof ‘‘the Board
concerned’’.
153
(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 pro-
vided in paragraph (2), and in’’ and insert-
ing 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)—
(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 con-
cerned’’;
(3) in subsection (c)—
154
(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 con-
cerned’’; 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
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’’.
155
(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 agen-
cy 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 or the board of con-
tract appeals of the Corps of Engineers in any provision
of law or in any rule, regulation, or other paper of the
United States shall be treated as referring to the Depart-
ment of Defense Board of Contract Appeals.
(b) CIVILIAN BOARD.—Any reference to an agency
board of contract appeals other than the Armed Services
Board of Contract Appeals, the board of contract appeals
of the Corps of Engineers, or the Postal Service Board
of Contract Appeals in any provision of law or in any rule,
regulation, or other paper of the United States shall be
156
treated as referring to the Civilian Board of Contract Ap-
peals.
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 or the
Postal Service Board of Contract Appeals appointed
under section 8(h) of the Contract Disputes Act of
1978’’; 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
Contract Appeals, the Civilian Board of Contract
Appeals, or the Postal Service Board of Contract
Appeals’’.
(b) TITLE 10.—(1) Section 2305(e) of title 10, Unit-
ed States Code, is amended—
(A) in paragraph (1), by striking out ‘‘sub-
chapter V of chapter 35 of title 31’’ and inserting
157
in lieu thereof ‘‘title II of the Office of Federal Pro-
curement 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 sec-
tion 3554 of title 31’’ and inserting in lieu thereof
‘‘section 214(h)(2) of the Office of Federal Procure-
ment Policy Act’’; and
(B) in paragraph (2), by striking out ‘‘para-
graph (1) of section 3554(c) of title 31 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)’’.
(c) FEDERAL
PROPERTY
AND
ADMINISTRATIVE
SERVICES ACT OF 1949.—(1) Section 303B(j) (as redes-
ignated by section 104(b)(2)) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253b(h))
is amended—
(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
Office of Federal Procurement Policy Act’’; and
(B) by striking out paragraph (3).
158
(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
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 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
relating 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.
‘‘Sec. 205. Authorization of appropriations.
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‘‘SUBTITLE B—FUNCTIONS OF THE DEFENSE AND CIVILIAN BOARDS OF
CONTRACT APPEALS
‘‘Sec. 211. Alternative dispute resolution services.
‘‘Sec. 212. Alternative dispute resolution of disputes and protests submitted to
Boards.
‘‘Sec. 213. Contract disputes.
‘‘Sec. 214. Protests.
‘‘Sec. 215. Applicability to certain contracts.’’.
Subtitle F—Effective Date; Regula-
tions and Appointment of Chair-
men
SEC. 451. EFFECTIVE DATE.
Title II of the Office of Federal Procurement Policy
Act, as added by this title, and the amendments and re-
peals made by this title shall take effect 1 year after the
date of the enactment of this Act.
SEC. 452. REGULATIONS.
(a) REGULATIONS
REGARDING
PROTESTS
AND
CLAIMS.—Not later than 1 year after the date of the en-
actment of this Act, the Chairman of the Armed Services
Board of Contract Appeals and the Chairman of the Gen-
eral Services Board of Contract Appeals, in consultation
with the Comptroller General with respect to protests,
shall jointly issue—
(1) such procedural rules and regulations as are
necessary to the exercise of the functions of the De-
partment of Defense Board of Contract Appeals and
the Civilian Board of Contract Appeals under sec-
160
tions 213 and 214 of the Office of Federal Procure-
ment Policy Act (as added by this title); and
(2) statements of policy of general applicability
with respect to such functions.
(b) REGULATIONS REGARDING APPOINTMENT
OF
JUDGES.—Not later than 1 year after the date of the en-
actment of this Act—
(1) the Chairman of the Armed Services Board
of Contract Appeals shall issue rules governing the
establishment and maintenance of a register of eligi-
ble applicants and the selection of judges for the De-
partment of Defense Board of Contract Appeals;
and
(2) the Chairman of the General Services Board
of Contract Appeals shall issue rules governing the
establishment and maintenance of a register of eligi-
ble applicants and the selection of judges for the Ci-
vilian Board of Contract Appeals.
SEC. 453. APPOINTMENT OF CHAIRMEN OF DEFENSE
BOARD AND CIVILIAN BOARD.
Notwithstanding section 451, not later than 1 year
after the date of the enactment of this Act—
(1) the Secretary of Defense shall appoint the
Chairman of the Department of Defense Board of
Contract Appeals; and
161
(2) the Administrator of General Services shall
appoint the Chairman of the Civilian Board of Con-
tract Appeals.
TITLE V—EFFECTIVE DATES
AND IMPLEMENTATION
SEC. 501. EFFECTIVE DATE AND APPLICABILITY.
(a) EFFECTIVE DATE.—Except as otherwise provided
in this Act, this Act and the amendments made by this
Act shall take effect on the date of the enactment of this
Act.
(b) APPLICABILITY
OF
AMENDMENTS.—(1) An
amendment made by this Act shall apply, in the manner
prescribed 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 Act shall also apply,
to the extent and in the manner prescribed in the final
regulations promulgated pursuant to section 502 to imple-
ment such amendment, with respect to any matter related
to—
(A) a contract that is in effect on the date de-
scribed in paragraph (3);
162
(B) an offer under consideration on the date
described 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.
SEC. 502. IMPLEMENTING REGULATIONS.
(a) PROPOSED REVISIONS.—Proposed revisions to
the Federal Acquisition Regulation and such other pro-
posed regulations (or revisions to existing regulations) as
may be necessary to implement this Act 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
described 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 Act may provide for modification of an exist-