I
104TH CONGRESS
1ST SESSION
H. R. 1388
To revise and streamline the acquisition laws of the Federal Government,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
APRIL 4, 1995
Mr. CLINGER (for himself, Mrs. COLLINS of Illinois, Mr. SPENCE, and Mr.
DELLUMS) (all by request) introduced the following bill; which was re-
ferred to the Committee on Government Reform and Oversight, and in
addition to the Committees on National Security, the Judiciary, Small
Business, Science, and International Relations, for a period to be subse-
quently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
A BILL
To revise and streamline the acquisition laws of the Federal
Government, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Federal Acquisition
Improvement Act of 1995’’.
SEC. 2. TABLE OF CONTENTS.
The table of contents of this Act is as follows:
TITLE I—CONTRACT FORMATION
Subtitle A—Competition Statutes
PART I—ARMED SERVICES ACQUISITIONS
SUBPART A—COMPETITION REQUIREMENTS
Sec. 1001. Delegation of authorities and conforming amendments.
Sec. 1002. Modification of approval levels.
Sec. 1003. Advisory and assistance services defined.
SUBPART B—PLANNING, SOLICITATION, EVALUATION, AND AWARD
Sec. 1011. Evolving solicitations.
Sec. 1012. Competitive range determinations.
Sec. 1013. Preaward debriefings.
Sec. 1014. Two-phase selection procedures.
SUBPART C—KINDS OF CONTRACTS
Sec. 1021. Repeal of fee limitations.
PART II—CIVILIAN AGENCY ACQUISITIONS.
SUBPART A—COMPETITION REQUIREMENTS
Sec. 1051. Delegation of authorities and conforming amendments.
Sec. 1052. Modification of approval levels.
Sec. 1053. Advisory and assistance services defined.
Sec. 1054. Continued occupancy of leased space.
SUBPART B—PLANNING, SOLICITATION, EVALUATION, AND AWARD
Sec. 1061. Evolving solications.
Sec. 1062. Competitive range determinations.
Sec. 1063. Preaward debriefings.
Sec. 1064. Two-phase selections procedures.
SUBPART C—KINDS OF CONTRACTS
Sec. 1071. Repeal of fee limitiations.
PART III—ACQUISITIONS GENERALLY
Sec. 1091. Repeal of duplicative approval authority provision.
Sec. 1092. Repeal of annual competition report.
Sec. 1093. Review of regulators for consistency with Federal acquisition regula-
tion.
Sec. 1094. Repeal biannual report on procurement regulatory activity.
Subtitle B—Truth In Negotiations
PART I—ARMED SERVICES ACQUISITIONS
Sec. 1101. Required regulations.
PART II—CIVILIAN AGENCY ACQUISITIONS
Sec. 1151. Required regulations.
Sec. 1152. Clarification of status of certain Federal employees health benefits
contracts.
Subtitle C—Procurement Protests
PART I—PROTESTS TO THE COMPTROLLER GENERAL
Sec. 1201. GAO requirement to rule on dispositive motions.
Sec. 1202. Frivolous protests.
Sec. 1203. Decisions on protests.
Sec. 1204. Award of costs.
Sec. 1205. Availability of funds pending administrative procedure.
PART II—PROTESTS IN THE FEDERAL COURTS
Sec. 1211. Jurisdiction of the United States Court of Federal Claims.
PART III—PROTESTS IN PROCUREMENTS OF AUTOMATIC DATA PROCESSING
Sec. 1431. Decisions on protests.
Sec. 1432. Interlocutory appeals.
Sec. 1433. Suspension of procurement pending protest.
Sec. 1434. Dispositive motions.
Sec. 1435. Frivolous protests.
Sec. 1436. Award of costs.
PART IV—GENERAL
Sec. 1441. Protests of procurements made through the Federal acquisition
computer network under the simplified acquisition threshold.
Sec. 1442. Offeror statements to refrain from protesting procurements.
Sec. 1443. Sense of Congress on agency resolution of protests.
Subtitle D—Policy, Definitions, and Other Matters
Sec. 1551. Repeal of multi-year limitation on inspection, maintenance, and re-
pair.
Sec. 1552. Public utilities services.
Sec. 1553. Contracting for guards, elevator operators, messengers, and
custodians.
TITLE II—CONTRACT ADMINISTRATION
Subtitle A—Contract Payment
PART I—ARMED SERVICES ACQUISITIONS
Sec. 2001. Vestiture of title.
PART II—CIVILIAN AGENCY ACQUISITIONS
Sec. 2051. Vestiture of title.
Subtitle B—Cost Principles
PART I—CIVILIAN AGENCY ACQUISITIONS
Sec. 2101. Applicability of cost principles.
PART II—ACQUISITIONS GENERALLY
Sec. 2151. Allowable contract costs.
Subtitle C—Claims and Disputes
Sec. 2251. Divestiture of District Courts of dispute jurisdiction.
Sec. 2252. Contract Disputes Act improvement.
Subtitle D—Miscellaneous
Sec. 2301. Accounting for advisory and assistance services.
Sec. 2302. Waivers from cancellation of funds.
TITLE III—COMMERCIAL ITEMS
Sec. 3001. Commercial items.
TITLE IV—SIMPLIFIED ACQUISITION THRESHOLD
Subtitle A—Threshold Defined
Sec. 4001. Simplified acquisition threshold defined.
Subtitle B—Inapplicability of Laws to Acquisitions At or Below the
Simplified Acquisition Threshold
Sec. 4101. Miller Act.
Subtitle C—Simplified Procedures
Sec. 4201. Repeal of duplicative authority for simplified acquisition purchases.
Sec. 4202. Amendment to conform procurement notice posting thresholds.
Sec. 4203. Exemption from wait period when using detailed synopsis.
Sec. 4204. Exemption from synopsizing requirements.
Sec. 4205. Repeal of duplicative procurement notice provision.
Sec. 4206. Technical amendments.
Subtitle D—Micro-Purchase Procedures
Sec. 4301. Micro-purchases.
TITLE V—ACQUISITION MANAGEMENT
Subtitle A—Pilot Programs
Sec. 5001. Acquisition research demonstration projects.
Subtitle B—Miscellaneous
Sec. 5051. Administrative procedures, Department of Energy.
TITLE VI—OTHER PROCUREMENT-RELATED MATTERS
Subtitle A—Standards of Conduct/Ethics
Sec. 6001. Disclosing and obtaining contractor bid or proposal information or
source selection information.
Sec. 6002. Repeals.
Sec. 6003. Conforming amendments.
Subtitle B—Additional Amendments
Sec. 6051. Inapplicability of prohibition on gratuities.
Subtitle C—Intellectual Property
Sec. 6101. Technology innovation.
Sec. 6102. Employee activities.
Sec. 6103. Exception to prohibition on copyright protection for works of the
United States Government.
Sec. 6104. Patent rights in inventions made with Federal assistance.
TITLE VII—SMALL BUSINESS AND SOCIOECONOMIC LAWS
Subtitle A—Small Business Laws
Sec. 7001. Direct contracting with section 8(a) companies.
Sec. 7002. Small business subcontracting plans.
Sec. 7003. Reporting requirement on number of small business subcontract
awards.
Sec. 7004. Repeal of small business competitiveness demonstration program.
Sec. 7005. Repeal of program for manufacturing contracts through manufac-
turing application and education centers.
Sec. 7006. Repeal of pilot program for very small business concerns.
Subtitle B—Socioeconomic Laws
Sec. 7101. Repeal of Walsh-Healey Public Contracts Act.
Sec. 7102. Procurement report—Resource Conservation and Recovery Act.
Sec. 7103. Requirements for certification and verification.
TITLE VIII—DEFENSE INTERNATIONAL TRADE
Sec. 8001. Competitiveness of United States companies.
TITLE I—CONTRACT FORMATION
Subtitle A—Competition Statutes
PART I—ARMED SERVICES ACQUISITIONS
Subpart A—Competition Requirements
SEC. 1001. DELEGATION OF AUTHORITIES AND CONFORM-
ING AMENDMENTS.
(a) COMPETITION REQUIREMENTS.—Section 2304 of
title 10, United States Code, is amended—
(1) in subsection (b) by striking ‘‘the head of
an agency’’ in each place that it appears and insert-
ing in lieu thereof ‘‘the head of the contracting ac-
tivity’’;
(2) in subsection (c) by striking out ‘‘the head
of an agency’’ in the first sentence and inserting in
lieu thereof ‘‘an executive agency’’;
(3) in subsection (c)(7) by striking out ‘‘head of
the agency’’ and inserting in lieu thereof ‘‘head of
the contracting activity’’; and
(4) in subsection (d)(2) by striking out ‘‘head
of an agency’’ and inserting in lieu therefor ‘‘head
of the contracting activity’’.
(b) FORMATION PROCEDURES.—Section 2305 of title
10, United States Code, is amended by striking out ‘‘the
head of an agency’’ or ‘‘the head of the agency’’ in each
place that it appears and inserting in lieu thereof ‘‘the
contracting officer’’.
(c) KINDS OF CONTRACTS.—Subsection (a) of section
2306 of title 10, United States Code, is amended to read
as follows:
‘‘(a) The cost-plus percentage-of-cost system of con-
tracting may not be used. Subject to the limitation in the
preceding sentence, the other provisions of this section,
and other applicable provisions of law, an agency, in
awarding contracts under this chapter after using proce-
dures other than sealed-bid procedures, may enter into
any kind of contract that the agency considers will pro-
mote the best interests of the United States.’’.
(d) COST OR PRICING DATA.—Section 2306a of title
10, United States Code, is amended—
(1) in subsection (b)(1)(B) by striking out
‘‘when the head of the procuring activity, without
delegation,’’ and inserting in lieu thereof ‘‘when the
contracting officer’’; and
(2) in subsection (g) by striking the words ‘‘the
head of’’.
(e) ENCOURAGEMENT OF NEW COMPETITORS.—Sec-
tion 2319 of title 10, United States Code is amended—
(1) by striking out ‘‘the head of an agency’’ or
‘‘the head of the agency’’ in each place that it ap-
pears and inserting the lieu thereof ‘‘the contracting
officer’’;
(2) by striking out subparagraph (A) of sub-
section (c)(2) and inserting in lieu thereof the fol-
lowing:
‘‘(A) Except as provided in subparagraph
(B), if it is unreasonable to specify the stand-
ards for qualification which a prospective
offeror or its product must satisfy, a determina-
tion to that effect shall be submitted to the
head of the contracting activity. After consider-
ing the determination and the facts supporting
it, the head of the contracting activity may
waive the requirements of clauses (2) through
(6) of subsection (b) for up to two years with
respect to the item subject to the qualification
requirement.’’; and
(3) by adding a new subsection (g) to read as
follows:
‘‘(g) The contracting officer need not prepare the jus-
tification required by subsection (b)(1) nor the determina-
tion required by subsection (f) if, in the prior fiscal year,
the agency either obligated 75 percent or more of its con-
tract dollars available for competition or awarded 95 per-
cent or more of its contract actions available for competi-
tion using competitive procedures.’’.
SEC. 1002. MODIFICATION OF APPROVAL LEVELS.
(a) 
APPROVAL
OF
JUSTIFICATIONS.—Section
2304(f)(1)(B) of title 10, United States Code is amended
to read as follows:
‘‘(f)(1)(B) the justification is approved—
‘‘(i) in the case of a contract for an amount ex-
ceeding $500,000 (but equal to or less and
$5,000,000) by the competition advocate for the pro-
curing activity (without further delegation) or by an
official referred to in (ii), (iii), or (iv);
‘‘(ii) in the case of a contract for an amount ex-
ceeding $5,000,000 (but equal to or less than
$115,000,000), by the head of the procuring activity
(or the head of the procuring activity’s delegate des-
ignated pursuant to paragraph (6)(A));
‘‘(iii) in the case of a contract for amount ex-
ceeding $115,000,000 (but equal to or less than
$500,000,000), by the senior procuring executive of
the agency designated pursuant to section 16(3) of
the Office of Federal Procurement Policy Act (41
U.S.C. 414(3)) or the senior procurement executive’s
delegate designated pursuant to paragraph (6)(B),
or in the case of the Under Secretary of Defense for
Acquisition, acting in his capacity as the senior pro-
curement executive for the Department of Defense;
the Under Secretary’s delegate designated pursuant
to paragraph (6)(C);
‘‘(iv) in the case of a contract for amount ex-
ceeding $500,000,000, by the senior procuring exec-
utive of the agency designated pursuant to section
16(3) of the Office of Federal Procurement Policy
Act (41 U.S.C. 414(3)) (without further delegation)
or in the case of the Under Secretary of Defense for
Acquisition, acting in his capacity as the senior pro-
curement executive for the Department of Defense,
the Under Secretary’s delegate designated pursuant
to paragraph (6)(C); and’’.
(b) EXCEPTION.—Section 2304(f)(1) of title 10,
United States Code, is further amended by adding at the
end the following:
‘‘(D) The justification required by paragraph
(1)(A) is not required to be approved as under para-
graph (1)(B) if the agency obligated 75 percent or
more of its contract dollars available for competition
or awarded 95 percent or more of its contract ac-
tions available for competition during the previous
fiscal year using competitive procedures.’’.
SEC. 1003. ADVISORY AND ASSISTANCE SERVICES DEFINED.
(a) DEFINITION.—Section 2304b(i) of title 10,
United States Code, is amended to read as follows:
‘‘(i) Advisory and Assistance Services Defined.
‘‘In this section:
‘‘(1) the term ‘‘advisory and assistance serv-
ices’’ means the following services when provided by
nongovernmental sources:
‘‘(A) Management and professional support
services.
‘‘(B) Studies, analysis, and evaluations.
‘‘(C) Engineering and technical services.
‘‘(2) In paragraph (1), such term does not in-
clude the following services:
‘‘(A) Routine automated data processing
telecommunications services unless such services
are an integral part of a contract for the pro-
curement of advisory and assistance services.
‘‘(B) Architectural and engineering serv-
ices, as defined in section 901 of the Brooks
Architect-Engineers Act (40 U.S.C. 541).
‘‘(C) Research on basic mathematics or
medical, biological, physical, social, psycho-
logical, or other phenomena.’’.
(b) TECHNICAL AMENDMENT.—Section 2304a(f) of
title 10 is amended by striking ‘‘section 1105(g) of title
31’’ and inserting in lieu thereof ‘‘section 2304b(i) of title
10’’.
Subpart B—Planning, Solicitation,
Evaluation, and Award
SEC. 1011. EVOLVING SOLICITATIONS.
Subsection (a) of section 2305 of title 10, United
States Code, is amended—
(1) by redesignating paragraph (5) as para-
graph (6); and
(2) by inserting after paragraph (4) the follow-
ing paragraph (5):
‘‘(5) When purchasing commercial items under
this subpart, nothing in this or any other Act shall
be construed to prohibit an agency from adding, de-
leting, or tailoring evaluation factors or specifica-
tions at any time up until the issuance of a request
for final offers.’’.
SEC. 1012. COMPETITIVE RANGE DETERMINATIONS.
Paragraph (4) of section 2305(b) of title 10, United
States Code, is amended by—
(1) redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D) respectively;
(2) striking out ‘‘(B)’’ in subparagraph (D) and
inserting in lieu thereof ‘‘(C)’’; and
(3) inserting after subparagraph (A) the follow-
ing:
‘‘(B) If the contracting officer determines
that the number of offerors that would other-
wise be included in the competitive range under
subparagraph (A)(i) exceeds the number at
which an efficient competition can be con-
ducted, the contracting officer may limit the
number of offerors in the competitive range to
the greatest number of competitors that will
permit an efficient award; provided that when
the competition is limited for this purpose, the
number of offerors may not be limited to less
than three.’’.
SEC. 1013. PREAWARD DEBRIEFINGS.
Section 2305(b) of title 10, United States Code, is
amended—
(1) by redesignating paragraph (6) as para-
graph (7); and
(2) inserting after paragraph (5) the following
new paragraph (6):
‘‘(6)(A) When the contracting officer excludes
an offeror submitting a competitive proposal from
the competitive range (or otherwise excludes such an
offeror from further consideration prior to the final
source selection decision), the excluded offeror may
request in writing, within 3 days after the date on
which the excluded offeror receives notice of its ex-
clusion, a debriefing prior to award. The contracting
officer shall either debrief the unsuccessful offeror as
soon as is practicable or refuse the request.
‘‘(B) The contracting officer is required to de-
brief an excluded offeror in accordance with para-
graph (5) of this section only if that offeror re-
quested and was refused a preaward debriefing
under subparagraph (A) of this paragraph.
‘‘(C) The debriefing conducted under this sub-
section shall include—
‘‘(i) the executive agency’s evaluation of
the significant factors in the offeror’s offer;
‘‘(ii) a summary of the rationale for the
offeror’s exclusion, including the reason or rea-
sons it was determined not to have a reasonable
chance of being selected for contract award or
other reason or reasons it was excluded; and
‘‘(iii) reasonable responses to relevant
questions posed by the debriefed offeror as to
whether source selection procedures set forth in
the solicitation, applicable regulations, and
other applicable authorities were followed by the
executive agency.
‘‘(D) The debriefing conducted pursuant to this
subsection may not disclose the number or identity
of other offerors and shall not disclose information
about the content, ranking, or evaluation of other
offerors’ proposals.
‘‘(E) The contracting officer shall include a
summary of the debriefing in the contract file.’’.
SEC. 1014. TWO-PHASE SELECTION PROCEDURES.
(a) PROCEDURES AUTHORIZED.—Chapter 137 of
title 10, United States Code, is amended by inserting after
section 2305 the following new section:
‘‘§ 12305a. Two-phase selection procedures
‘‘(a) AUTHORIZATION.—The contracting officer may
use the two-phase selection procedures authorized herein
for acquiring the design and construction of a public build-
ing, facility, or work when the criteria for use in sub-
section (b) are met. The two-phase selection procedures
authorized herein may also be used for entering into a con-
tract for the acquisition of property or services other than
construction services when the criteria described in sub-
section (b) are met.
‘‘(b) CRITERIA FOR USE.—The contracting officer
shall make a determination whether the authorized two-
phase selection procedures are appropriate for use when
the contracting officer anticipates that three or more of-
fers will be received for such contract, design work must
be performed before an offeror can develop a price or cost
proposal for such contract, the offeror will incur a sub-
stantial amount of expense in preparing the offer, and
after considering in individual situations information 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 shall develop, either in-house
or by contract, a scope of work defining the project
for inclusion in the solicitation that provides pro-
spective offerors with sufficient information regard-
ing the Government’s requirements which may in-
clude criteria and preliminary conceptual design,
budget parameters and schedule or delivery require-
ments to enable the offerors to submit proposals
which meet the Government’s needs. When the two-
phase selection procedure is used for design and con-
struction of a public building, facility, or work and
the agency contracts for development of the scope of
work, the agency shall contract for architectural/en-
gineering services as defined by and in accordance
with section 541 and the following of title 40,
United States Code.
‘‘(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 shall be stated in the so-
licitation and include specialized experience and
technical competence, capability to perform, past
performance of the offeror’s team (including the ar-
chitect-engineer and construction members of the
team if the project is for the construction of a public
building, facility or work) and other appropriate fac-
tors, except that cost-related or price-related evalua-
tion factors are not permitted. Each solicitation shall
establish the relative importance assigned to the
evaluation factors and subfactors that must be con-
sidered in the evaluation of phase one proposals. The
agency evaluates phase one proposals on the basis of
the phase one evaluation factors set forth in the
solicitation.
‘‘(4) The contracting officer selects as the most
highly 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 shall establish with respect to
phase two—
‘‘(A) the technical submission requirements
for the proposal, including design concepts and/
or proposed solutions to requirements addressed
within the scope of work, and
‘‘(B) the evaluation factors and subfactors,
including cost or price, that must be considered
in the evaluation of proposals in accordance
with section 2305(b)(4).
‘‘(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 subsection (c) shall state the maximum
number of offerors that are to be selected to submit com-
petitive proposals pursuant to subsection (c)(4). The maxi-
mum number specified in the solicitation shall not exceed
five unless the agency head determines with respect to an
individual solicitation that a specified number greater than
five is in the Government’s interest and is consistent with
the purposes and objectives of the two-phase selection
process.
‘‘(e) STIPENDS AUTHORIZED.—The head of an exec-
utive agency is authorized to provide a stipend to competi-
tors that are selected to submit phase two proposals and
that submit proposals that meet the requirements of the
solicitation but are not selected for the award.
‘‘(f) 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;
‘‘(3) providing for a uniform approach to be
used government-wide; and
‘‘(4) regarding criteria to be used in determin-
ing whether the payment of a stipend is appropriate
and for determining the amount of the stipend.’’.
(b) CLERICAL AMENDMENT.—The table of sections
at the beginning of such chapter is amended by inserting
after the item relating to section 2305 the following:
‘‘Sec. 2305a. Two-phase selection procedures.’’.
Subpart C—Kinds of Contracts
SEC. 1021. REPEAL OF FEE LIMITATIONS.
(a) REPEALS.—(1) Subsection (d) of section 2306 of
title 10, United States Code, is repealed.
(2) Sections 4540, 7212, and 9540 of title 10, United
States Code, are repealed.
‘‘(b) CLERICAL AMENDMENTS.—(1) The table of sec-
tions at the beginning of chapter 433 of title 10, United
States Code, is amended by striking out the item relating
to section 4540.
(2) The table of sections at the beginning of chapter
631 of title 10, United States Code, is amended by strik-
ing out the item relating to section 7212.
(3) The table of sections at the beginning of chapter
933 of title 10, United States Code, is amended by strik-
ing out the item relating to section 9540.
(c) CIVIL WORKS AUTHORITY.—Section 2855 of title
10, United States Code, is amended to read as follows:
‘‘§ 2855 Law applicable to contracts for architectural
and engineering services and construc-
tion design
‘‘(a) The Secretary of Defense and Secretaries of the
military departments may contract for architectural and
engineering services in connection with a military con-
struction or family housing project or for other Depart-
ment of Defense or military department purposes.
‘‘(b) Contracts for architectural and engineering serv-
ices entered into pursuant to subsection (a) shall be
awarded in accordance with title IX of the Federal Prop-
erty and Administrative Services Act of 1949 (40 U.S.C.
541 et seq.).’’.
PART II—CIVILIAN AGENCY ACQUISITIONS
Subpart A—Competition Requirements
SEC. 1051. DELEGATION OF AUTHORITIES AND CONFORM-
ING AMENDMENTS.
(a) COMPETITION REQUIREMENTS.—Section 303 of
the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 253) is amended—
(1) in section (b)(1) by striking ‘‘the agency
head’’ and inserting in lieu thereof ‘‘the head of the
contracting activity’’;
(2) in section (c)(7) by striking ‘‘head of the ex-
ecutive agency’’ and inserting in lieu thereof ‘‘head
of the contracting activity’’; and
(3) in section (d)(2) by striking ‘‘head of an ex-
ecutive agency’’ and inserting in lieu thereof ‘‘head
of the contracting activity’’.
(b) EVALUATION AND AWARD.—Section 303B of the
Federal Property and Administrative Services Act of 1949
(41 U.S.C. 253b) is amended by striking out ‘‘the head
of an executive agency’’, ‘‘the head of an agency’’ or ‘‘the
agency head’’ in each place that it appears and inserting
in lieu thereof ‘‘the contracting officer’’.
(c) ENCOURAGEMENT OF NEW COMPETITION.—Sec-
tion 303C of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253c) is amended—
(1) by striking out ‘‘the head of an executive
agency’’, ‘‘agency head’’, in each place that it ap-
pears and inserting ‘‘‘contracting officer’’ in lieu
thereof and also striking out ‘‘the head of an agen-
cy’’ or ‘‘the head of the agency’’ in each place that
it appears and inserting in lieu thereof ‘‘the con-
tracting officer’’;
(2) by striking out paragraph (2) in subsection
(c) and inserting in lieu thereof the following:
‘‘(2) Except as provided in subparagraph (3), if
it is unreasonable to specify the standards for quali-
fication which a prospective offeror or its product
must satisfy, a determination to that effect shall be
submitted to the head of the contracting activity.
After considering the determination and the facts
supporting it, the head of the contracting activity
may waiver the requirements of clauses (2) through
(5) of subsection (b) for up to two years with respect
to the item subject to the qualification require-
ment.’’; and
‘‘(i) ADVISORY
AND ASSISTANCE SERVICES DE-
FINED.—In this section—
‘‘(1) the term ‘advisory and assistance services’
means the following services when provided by non-
governmental sources:
‘‘(A) Management and professional support
services.
‘‘(B) Studies, analysis, and evaluations.
‘‘(C) Engineering and technical services.
‘‘(2) In paragraph (1), such term does not in-
clude the following services:
‘‘(A) Routine automated data processing
telecommunications services unless such services
are an integral part of a contract for the pro-
curement of advisory and assistance services.
‘‘(B) Architectural and engineering serv-
ices, as defined in section 901 of the Brooks
Architect-Engineers Act (40 U.S.C. 541).
‘‘(C) Research on basic mathematics or
medical, biological, physical, social, psycho-
logical, or other phenomena.’’.
(b) TECHNICAL AMENDMENT.—Section 303H(f) of
title 41 is amended by striking ‘‘section 1105(g) of title
31’’ and inserting in lieu thereof ‘‘section 303I(i) of title
41’’.
SEC. 1054. CONTINUED OCCUPANCY OF LEASED SPACE.
Section 303(d) of the Federal Property and Adminis-
trative Services Act of 1949 (41 U.S.C. 253(d)) is amend-
ed—
(1) by redesignating paragraph (2) as para-
graph (3); and
(2) by inserting after paragraph (1) the follow-
ing new paragraph (2):
‘‘(2)(A) For the purposes of applying subsection
(c)(1) in the case of a follow-on lease to be entered
into for the purpose of providing for continued occu-
pancy of particular space in leased real property by
a Federal agency, space may be treated as being
available from only the lessor of such space and may
be acquired through the use of other than competi-
tive procedures (without the justification otherwise
required by subsection (f)) if a written determination
is made by the contracting officer that—
‘‘(i) the occupying agency has a continuing
need for the space;
‘‘(ii) the space meets the needs of the
agency; and
‘‘(iii) the lessor is willing to continue to
provide the space at a fair market price deter-
mined by the contracting officer on the basis of
a market survey or an appraisal conducted in
accordance with generally accepted real prop-
erty appraisal standards.
‘‘(B) The authority under subparagraph (A) to
use procedures other than competitive procedures to
enter into a follow-on lease may be exercised not
more than once to provide for continued occupancy
of particular space in real property by a particular
Federal agency. The period of such follow-on lease
may not exceed 5 years provided, however, the total
lease period of the base lease and follow-on lease
shall not exceed 20 years.
‘‘(C) Nothing in this paragraph may be con-
strued to prohibit the use of procedures other than
competitive procedures to enter into a follow-on lease
of real property for continued occupancy of particu-
lar space in real property by a Federal agency when
an exception set forth in subsection (c) applies and
the use of such procedures is justified and approved
in accordance with subsection (f).’’.
Subpart B—Planning, Solicitation, Evaluation, and
Award
SEC. 1061. EVOLVING SOLICITATIONS.
Section 303A of the Federal Property and Admin-
istrative Services Act of 1949 (41 U.S.C. 253a) is
amended—
(1) by redesignating subsection (e) as sub-
section (f); and
(2) by inserting after subsection (d) the follow-
ing new subsection (e):
‘‘(e) When purchasing commercial items under this
subpart, nothing in this or any other Act shall be con-
strued to prohibit an agency from adding, deleting, or tai-
loring evaluation factors or specifications at any time up
until the issuance of a request for final offers.’’.
SEC. 1062. COMPETITIVE RANGE DETERMINATIONS.
Subsection (d) of section 303B of the Federal Prop-
erty and Administrative Services Act of 1949 (41 U.S.C.
253b), is amended—
(1) by redesignating paragraph (2) as para-
graph (3); and
(2) by inserting after subparagraph (1) the fol-
lowing:
‘‘(2) If the contracting officer determines that
the number of offerors that would otherwise be in-
cluded in the competitive range under subparagraph
(1)(A) exceeds the number at which an efficient
competition can be conducted, the contracting officer
may limit the number of offerors in the competitive
range to the greatest number of competitors that
will permit an efficient award; provided that when
the competition is limited for this purpose, the num-
ber of offerors may not be limited to less than
three.’’.
SEC. 1063. PREAWARD DEBRIEFINGS.
Section 303B of the Federal Property and Adminis-
trative Services Act of 1949 (41 U.S.C. 253b) is amend-
ed—
(1) by redesignating subsections (f) and (g) as
subsections (g) and (h), respectively; and
(2) by inserting after subsection (e) the follow-
ing new subsection (f):
‘‘(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 either debrief the unsuccess-
ful offeror as soon as is practicable or refuse the request.
‘‘(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 factors in the offeror’s offer;
‘‘(B) a summary of the rationale for the
offeror’s exclusion, including the reason or reasons it
was determined not to have a reasonable chance of
being selected for contract award or other reason or
reasons it was excluded; 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.
‘‘(5) The contracting officer shall include a summary
of the debriefing in the contract file.’’.
SEC. 1064. TWO-PHASE SELECTION PROCEDURES.
(a) PROCEDURES AUTHORIZED.—Title III of the
Federal Property and Administrative Services Act of 1949
(41 U.S.C. 251 et seq.), is amended by inserting after sec-
tion 303L the following new section:
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 shall establish with respect to
phase two—
‘‘(A) the technical submission requirements
for the proposal, including design concepts and/
or proposed solutions to requirements addressed
within the scope of work, and
‘‘(B) the evaluation factors and subfactors,
including cost or price, that must be considered
in the evaluation of proposals in accordance
with section 303B(d).
‘‘(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 subsection (c) shall state the maximum
number of offerors that are to be selected to submit com-
petitive proposals pursuant to subsection (c)(4). The maxi-
mum number specified in the solicitation shall not exceed
five unless the agency head determines with respect to an
individual solicitation that a specified number greater than
five is in the Government’s interest and is consistent with
the purposes and objectives of the two-phase selection
process.
‘‘(e) STIPENDS AUTHORIZED.—The head of an exec-
utive agency is authorized to provide a stipend to competi-
tors that are selected to submit phase two proposals and
that submit proposals that meet the requirements of the
solicitation but are not selected for the award.
‘‘(f) 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;
‘‘(3) providing for a uniform approach to be
used government-wide; and
‘‘(4) regarding criteria to be used in determin-
ing whether the payment of a stipend is appropriate
and for determining the amount of the stipend.’’.
(b) CLERICAL AMENDMENT.—The table of contents
in the first section of such Act, is amended by inserting
after the item relating to section 303L the following new
item:
‘‘Sec. 303M. Two-phase selection procedures.’’.
Subpart C—Kinds of Contracts
SEC. 1071. REPEAL OF FEE LIMITATIONS.
Section 304(b) of the Federal Property and Adminis-
trative Services Act of 1949 (41 U.S.C. 254(b)) is amend-
ed in the first sentence by—
(1) striking out the comma after ‘‘used’’ and in-
serting in lieu thereof a period; and
(2) striking out ‘‘and in the case of a cost-plus-
a-fixed-fee contract’’ and all that follows through the
end of the sentence.
PART III—ACQUISITIONS GENERALLY
SEC. 1091. REPEAL OF DUPLICATIVE APPROVAL AUTHOR-
ITY PROVISION.
Section 8 of the Small Business Act (15 U.S.C. 637)
is amended—
(1) by deleting subsection (h); and
(2) by redesignating subsections (i) and (j) as
(h) and (i) respectively.
SEC. 1092. REPEAL OF ANNUAL COMPETITIVE REPORT.
Section 20 of the Office of Federal Procurement Pol-
icy Act (41 U.S.C. 418) is amended by—
(1) striking ‘‘and’’ at the end of paragraph
(b)(3)(B);
(2) striking (b)(4) in its entirety; and
(3) redesignating paragraphs (b) (5), (6), and
(7) as (b) (4), (5), and (6).
SEC. 1093. REVIEW OF REGULATIONS FOR CONSISTENCY
WITH FEDERAL ACQUISITION REGULATION.
Subsections 25(c) (4), (5), and (6) of the Office of
Federal Procurement Policy Act (41 U.S.C. 421(c) (4),
(5), and (6)) are repealed.
SEC. 1094. REPEAL BIANNUAL REPORT ON PROCUREMENT
REGULATORY ACTIVITY.
Subsection (g) of section 25 of the Office of Federal
Procurement Policy Act (41 U.S.C. 421(g)) is repealed.
Subtitle B—Truth in Negotiations
PART I—ARMED SERVICES ACQUISITIONS
SEC. 1101. REQUIRED REGULATIONS.
Subsection 2306a(h) of title 10, United States Code,
is amended—
(1) in the first sentence by striking ‘‘that
offerors must submit for a contracting officer to’’
and substituting in lieu thereof ‘‘that the contracting
officer should’’; and
(2) in the second sentence by striking ‘‘at a
minimum, shall’’ in the last sentence and inserting
in lieu thereof ‘‘may’’.
PART II—CIVILIAN AGENCY ACQUISITIONS
SEC. 1151. REQUIRED REGULATIONS.
Section 304A(h) of the Federal Property and Admin-
istrative Services Act of 1949 (41 U.S.C. 254a(h)) is
amended—
(1) in the first sentence by striking ‘‘that
offerors must submit for a contracting officer to’’
and substituting in lieu thereof ‘‘that the contracting
officer should’’; and
(2) in the second sentence by striking ‘‘at a
minimum, shall’’ in the last sentence and inserting
in lieu thereof ‘‘may’’.
SEC. 1152. CLARIFICATION OF STATUS OF CERTAIN FED-
ERAL EMPLOYEES HEALTH BENEFITS CON-
TRACTS.
Section 304A(b)(1)(A(ii) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C.
254a(b)(1)(A)(ii)) is amended by inserting ‘‘(other than
a contract for health benefits under section 8903(4) of
title 5, United States Code)’’ after ‘‘public’’.
Subtitle C—Procurement Protests
PART I—PROTESTS TO THE COMPTROLLER
GENERAL
SEC. 1201. GAO REQUIREMENT TO RULE ON DISPOSITIVE
MOTIONS.
(a) Subparagraph (b)(2)(A) of section 3553 of title
31, United States Code, is amended to read as follows:
‘‘(A) within 35 days after the later of the
date of the agency’s receipt of (i) the notice re-
quired by paragraph (b)(1) of this section, or
(ii) notification that the Comptroller General
has denied a motion to dismiss filed by the
agency in accordance with the limitations of
section 3554(a)(5)(A) of this title;’’.
(b) Subparagraph (b)(2)(C) of section 3553 of title
31, United States Code, is amended to read as follows:
‘‘(C) in a case determined by the Comp-
troller General to be suitable for the express op-
tion under section 3554(a)(2) of this title, with-
in 20 days after the later of (i) the date of the
Federal agency’s receipt of that determination,
or (ii) notification that the Comptroller General
has denied a motion to dismiss filed by the
agency pursuant to section 3554(a)(5)(A) of
this title;’’.
‘‘(II) The protester is not an inter-
ested party.
‘‘(III) The protest is not timely.
‘‘(IV) The protest does not allege req-
uisite prejudice.
‘‘(V) 
The 
protest 
is 
otherwise
dismissable under Comptroller General
rules.
‘‘(B) The Comptroller General shall consider
the comments of interested parties on motions filed
by 
Federal 
agencies 
pursuant 
to 
paragraph
(a)(5)(A) of this subsection if the comments are re-
ceived by the Comptroller General within 5 days
after the date the Federal agencies motion is filed
with the Comptroller General.
‘‘(C) Motions of Federal agencies asserting the
grounds described in paragraph (a)(5)(A)(ii) which
are not filed with the Comptroller General within 5
days after the Federal agency receives notification of
the protest pursuant to section 3553(b)(1) of this
chapter may be resolved by the Comptroller General
in the final decision on the protest.’’.
SEC. 1202. FRIVOLOUS PROTESTS.
Section 3554 of title 31, United States Code, is
amended by inserting the following new paragraph ‘‘(5)’’
at the end of subsection (a):
‘‘(5) If the Comptroller General expressly finds
that a protest or a portion of a protest is frivolous
or has not been brought or pursued in good faith,
the Comptroller may recommend that the protester,
or other interested party who joins the protest, be
liable to the United States for payment of all or that
portion of the United States costs, for which such a
finding is made, of reviewing the protest, 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. The Federal Acquisition Regulation shall pro-
vide guidance under which the head of an agency
may initiate action to obtain such costs, unless (1)
special circumstances would make such payment un-
just, or (2) the protester obtains documents or other
information for the first time, after the protest is
filed with the Comptroller General, which establishes
that the protest or a portion is frivolous or has not
been brought in good faith and the protester then
promptly withdraws the protest or portion of the
protest.’’.
SEC. 1203. DECISIONS ON PROTESTS.
Subsection (b) of section 3554 of title 31, United
States Code, is amended in paragraph (1) to read as
follows:
‘‘(1) With respect to a solicitation for a con-
tract, or a proposed award or the award of a con-
tract, protested under this chapter, the Comptroller
General shall review the agency’s decision based on
the agency record and shall determine that decision
is unlawful only if the interested party establishes
substantial prejudice and either (i) that the decision
was obtained in violation of procedures required by
law or regulation, or (ii) that the decision was arbi-
trary or capricious. However, protests that are based
on contracting officer decisions to cancel a solicita-
tion or terminate an award, where the decision is
based on a reasonable belief that there was a defect
in the source selection process, may be sustained
only upon clear and convincing showing that the
contracting officer’s decision was an abuse of discre-
tion. The agency record shall consist of all informa-
tion relied upon by the agency in making the deci-
sion and any information furnished by the agency
explaining or justifying the agency decision. The
agency record shall not be supplemented except as
necessary to substantially demonstrate bad faith by
the agency. Based upon this review, if the Comptrol-
ler General determines that the solicitation, pro-
posed award, or award was unlawful, the Comptrol-
ler General shall recommend that the Federal
agency—’’.
SEC. 1204. AWARD OF COSTS.
Section 3554 of title 31, United States Code, is
amended in subsection (c)—
(1) by redesignating paragraphs (3) and (4) as
paragraphs (4) and (5) respectively; and
(2) by inserting after paragraph (2) the follow-
ing new paragraph (3):
‘‘(3) No party may be paid pursuant to a rec-
ommendation made under paragraph (1) unless that
party has provided the agency a reasonable oppor-
tunity to provide relief pusuant to an established
agency administrative procedure for resolution of
protests where such procedure would provide for re-
view by a senior agency official and where such pro-
cedure would toll protest stay periods during the
pendency of agency review.’’.
SEC. 1205. AVAILABILITY OF FUNDS PENDING ADMINISTRA-
TIVE PROCEDURE.
(a) IN GENERAL.—Section 1558 of title 31, United
States Code, is amended to read as follows:
‘‘§ 1558. Availability of funds following resolution of a
formal protest or challenge
‘‘(a) Notwithstanding section 1552 of this title or any
other provision of law, funds available to an agency for
obligation for a contract at the time a protest or challenge
is filed in connection with a solicitation for, proposed
award of, or award of such contract, shall remain available
for obligation for 125 calendar days after the date on
which the final ruling is made on the protest or challenge.
A ruling is considered final on the date on which the time
allowed for filing an appeal or request for reconsideration
has expired, or the date on which a decision is rendered
on such an appeal or request, whichever is later.
‘‘(b) Subsection (a) applies with respect to—
‘‘(1) any protest filed under subchapter V of
chapter 35 of this title or under section 111(f) of
the Federal Property and Administrative Services
Act of 1949 (40 U.S.C. 759(f)); or
‘‘(2) any administrative or judicial proceeding
challenging a solicitation for a contract, a proposed
award or the award of a contract, or the eligibility
of an awardee or potential awardee of a contract,
that has the effect of precluding an Executive agen-
cy from making an award of a contract or proceed-
ing with the procurement.’’.
(b) CLERICAL AMENDMENT.—The table of sections
at the beginning of chapter 15 of title 31, United States
Code, is amended by amending the item relating to section
1558 to read as follows:
‘‘1558. Availability of funds following resolution of a formal protest or chal-
lenge.’’.
PART II—PROTESTS IN THE FEDERAL COURTS
SEC. 1211. JURISDICTION OF THE UNITED STATES COURT
OF FEDERAL CLAIMS.
(a) CLAIMS AGAINST THE UNITED STATES.—Section
1491 of title 28, United States Code, is amended—
(1) by amending the section heading to read as
follows:
‘‘§ 1491. Claims against United States generally; bid
protests; actions involving Tennessee Val-
ley Authority’’;
(2) by redesignating subsection (b) as sub-
section (d);
(3) by redesignating subsection (a)(2) as sub-
section (b);
(4) by redesignating subsection (a)(1) as sub-
section (a);
(5) by striking subsection (a)(3);
(6) in subsection (a) (as redesignated by sub-
section (a)(4)), by inserting ‘‘CLAIMS AGAINST THE
UNITED STATES.—’’after ‘‘(a)’’;
(7) in subsection (b) (as redesignated by sub-
section (a)(3)), by inserting ‘‘REMEDY
AND RE-
LIEF.—’’ after ‘‘(b)’’; and
(8) by inserting after subsection (b) (as redesig-
nated by subsection (a)(3)) the following new sub-
section:
‘‘(c) BID PROTESTS.—(1) The United States Court
of Federal Claims shall have exclusive judicial jurisdiction
of any action by an interested party objecting to a solicita-
tion by a Federal agency for bids or proposals for a pro-
posed contract or to a proposed award or the award of
a contract or to any finding under 31 U.S.C.
3553(c)(2)(A) or (d)(2)(A) to award or continue perform-
ance of a contract notwithstanding a protest. The court
shall have jurisdiction of any such action whether suit is
instituted before or after the contract is awarded. To af-
ford relief in such an action, the court may award such
relief as it deems proper, including declaratory and injunc-
tive relief. In exercising this jurisdiction, the court shall
give due regard to the interests of national defense and
national security and the need for expeditious resolution
of the action. The district courts shall have no jurisdiction
of any such action.
‘‘(2) The court shall review the agency’s decision
based on the agency record and shall determine that deci-
sion is unlawful only if the interested party established
substantial prejudice and either (i) that the decision was
obtained in violation of procedures required by law or reg-
ulation, or (ii) that the decision was arbitrary or capri-
cious. However, protests that are based on contracting of-
ficer decisions to cancel a solicitation or terminate an
award, where the decision is based on a reasonable belief
that there was a defect in the source selection process,
may be sustained only upon clear and convincing showing
that the contracting officer’s decision was an abuse of dis-
cretion. The agency record shall consist of all information
relied upon by the agency in making the decision and any
information furnished by the agency explaining or justify-
ing the agency decision. The agency record shall not be
supplemented except as necessary to substantially dem-
onstrate bad faith by the agency.
‘‘(3) The term ‘interested party’ shall have the mean-
ing given in section 3551 in title 31.’’.
(9) in subsection (d) (as redesignated by sub-
section (a)(2)), by inserting ‘‘TENNESSEE VALLEY
AUTHORITY.—’’after ‘‘(d)’’.
(b) JUDGMENTS, AWARDS, AND COMPROMISE SET-
TLEMENTS.—Section 1304(a)(3)(A) of title 31 is amended
by inserting ‘‘1491,’’ after ‘‘section’’.
(c) NONEXCLUSIVITY OF REMEDIES; MATTERS IN-
CLUDED IN AGENCY RECORD.—Section 3556 of title 31,
United States Code is amended by striking out the first
sentence and inserting in lieu thereof the following new
sentence: ‘‘This subchapter does not give the Comptroller
General exclusive jurisdiction over protests, and nothing
contained in this subchapter shall affect the right of any
interested party to file a protest with the contracting agen-
cy or to file an action in the United States Court of Fed-
eral Claims.’’.
(d) CONFORMING AMENDMENT IN BROOKS ACT.—
Section 111(f)(6)(C) of the Federal Property and Admin-
istrative Services Act of 1949 (40 U.S.C. 759(f)(6)(C))
is amended by striking out ‘‘a district court of the United
States or the United States Claims Court.’’ and inserting
in lieu thereof ‘‘the United States Court of Federal
Claims.’’.
PART III—PROTESTS IN PROCUREMENT OF
AUTOMATIC DATA PROCESSING
SEC. 1431. DECISIONS ON PROTESTS
Section 111 (f) of the Federal Property and Adminis-
trative Services Act of 1949, (40 U.S.C. 759(f)) is amend-
ed in paragraph (1) by deleting the second sentence and
inserting in lieu thereof the following: ‘‘The Board shall
review the agency’s decision based on the agency record
and shall determine that decision is unlawful only if the
interested party establishes substantial prejudice and ei-
ther (i) that the decision was obtained in violation of pro-
cedures required by law or regulation, or (ii) that the deci-
sion was arbitrary or capricious. However, protests that
are based on contracting officer decisions to cancel a solic-
itation or terminate an award, where the decision is based
on a reasonable belief that there was a defect in the source
selection process, may be sustained only upon clear and
convincing showing that the contracting officer’s decision
was an abuse of discretion. The agency record shall consist
of all information relied upon by the agency in making
the decision and any information furnished by the agency
explaining or justifying the agency decision. The agency
record shall not be supplemented except as necessary to
substantially demonstrate bad faith by the agency.’’.
SEC. 1432. INTERLOCUTORY APPEALS.
Section 111(f) of the Federal Property and Adminis-
trative Services Act of 1949 (40 U.S.C. 759(f)) is amend-
ed—
(1) in section (1) by striking out the fourth sen-
tence; and
(2) in section (6) by adding a new paragraph
(D) to read as follows:
‘‘(D) A written determination by the
Board that—
‘‘(i) the procurement is subject to this
section; or
‘‘(ii) the protest is timely filed in ac-
cordance with this section; or
‘‘(iii) the party filing the protest is an
‘interested party’ in accordance with the
definition contained in this section is sub-
ject to an interlocutory appeal by the head
of the Federal agency concerned and by
any interested party, including interested
parties who intervene in any protest filed
under this subsection. The interlocutory
appeal must be taken within 10 days of the
Board’s written determination. Upon prop-
er agency motion, the Court of Appeals for
the Federal Circuit may stay the Board’s
proceedings.’’.
SEC. 1433. SUSPENSION OF PROCUREMENT PENDING PRO-
TEST.
Section 111(f) of the Federal Property and Adminis-
trative Services Act of 1949 (40 U.S.C. 759(f)) is amend-
ed—
(1) in clause (ii) of subparagraph (2)(B) by
substituting the word ‘‘agency’’ for the word
‘‘board’’; and
(2) in paragraph (3) by striking out subpara-
graph (B) and inserting in lieu thereof the following:
‘‘(B) The Board shall suspend the procure-
ment authority of the Administrator or the Ad-
ministrator’s delegation of procurement author-
ity to acquire goods and services under the con-
tract which are not previously delivered and ac-
cepted unless the head of the contracting activ-
ity makes a written finding that contract per-
formance will be in the best interest of the
United States.’’.
SEC. 1434. DISPOSITIVE MOTIONS.
Section 111(f)(4)(A) of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C.
759(f)(4)(A)) is amended at the end by adding the follow-
ing sentence: ‘‘If the Board receives timely filed dispositive
motions, the Board shall decide such motions in writing
as soon as practicable, but in any event, not later than
the date established for the hearing on the merits.’’.
SEC. 1435. FRIVOLOUS PROTESTS.
Section 111(f) of the Federal Property and Adminis-
trative Services Act of 1949 (40 U.S.C. 759) is amended
by adding the following after subparagraph (f)(4)(C):
‘‘(D) If the board expressly finds that a
protest or a portion of a protest is frivolous,
has not been brought or pursued in good faith,
or does not state on its face a valid basis for
protest, the protester or other interested party,
who joins the protest, shall be liable to the
United States for payment of, and the board
shall direct payment for all or that portion of
the United States costs, for which such a find-
ing is made, of reviewing the protest including
the fees and other expenses (as defined in sec-
tion 2412(d)(2)(A) of title 28) incurred by the
United States in defending the protest, unless
(1) special circumstances would make such pay-
ment unjust, or (2) the protester obtains docu-
ments or other information after the protest is
filed with the board, which establishes that the
protest or a portion of the protest is frivolous
or has not been brought in good faith, and the
protester then promptly withdraws the protest
or portion of the protest.’’.
SEC. 1436. AWARD OF COSTS.
Section 111(f)(5) of the Federal Property and Ad-
ministrative Services Act of 1949 (40 U.S.C. 759(f)(5))
is amended—
(1) by inserting ‘‘(i)’’ after ‘‘(C)’’; and
(2) by inserting after subparagraph (i) the fol-
lowing new subparagraph (ii):
‘‘(ii) No party may be paid pursuant to a
decision made under subparagraph (C)(i) unless
that party has provided the agency a reasonable
opportunity to provide relief pursuant to an es-
tablished agency administrative procedure for
resolution of protests where such procedure
would provide for review by a senior agency of-
ficial and where such procedure would toll pro-
test stay periods during the pendency of agency
review.’’.
PART IV—GENERAL
SEC. 1441. PROTESTS OF PROCUREMENTS MADE THROUGH
THE FEDERAL ACQUISITION COMPUTER NET-
WORK UNDER THE SIMPLIFIED ACQUISITION
THRESHOLD.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.) is amended by adding the following
new section:
‘‘SEC. 35. PROTESTS OF PROCUREMENTS UNDER THE SIM-
PLIFIED ACQUISITION THRESHOLD.
‘‘(a) PROTESTS.—A protest, other than to the pro-
curing agency, is not authorized in connection with the
award or proposed award of any procurement in an
amount not exceeding the simplified acquisition threshold
if conducted through a system with interim FACNET ca-
pability certified pursuant to section 30A(a)(1) or with full
FACNET 
capability 
certified 
pursuant 
to 
section
30A(a)(2);
‘‘(b) DEFINITION.—For purposes of this section, the
term ‘simplified acquisition threshold’ has the meaning
given such term in section 4(11)(A) of this Act.
‘‘(c) INAPPLICABILITY.—The provisions of this sec-
tion shall not apply to protests regarding business size or
status as defined in sections 8 and 15 of the Small Busi-
ness Act.’’.
SEC. 1442. OFFEROR STATEMENTS TO REFRAIN FROM PRO-
TESTING PROCUREMENTS.
The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.) is amended by adding the following
new section:
‘‘SEC. 36. OFFEROR STATEMENTS TO REFRAIN FROM PRO-
TESTING PROCUREMENTS.
‘‘(a) STATEMENTS NOT TO PROTEST.—An offeror
may include in an offer a statement that the offeror will
not file a procurement protest with any judicial, legisla-
tive, or executive body, other than the agency issuing the
solicitation, except with respect to an agency determina-
tion favoring an offeror who has not made such statement
in its offer. Any protest filed in violation of such statement
shall be dismissed.
‘‘(b) TREATMENT OF STATEMENTS NOT TO PRO-
TEST IN EVALUATION OF OFFERS.—The inclusion or non-
inclusion in an offer of a statement by an offeror agreeing
not to protest the award or proposed award of a contract
shall not be considered by an agency in evaluating the
proposal. The notice of award required by section
416(a)(1)(C) may include information about statements
provided by offerors.’’.
SEC. 1443. SENSE OF CONGRESS ON AGENCY RESOLUTION
OF PROTESTS.
It is the sense of Congress that executive agencies
should consider the establishment, by the head of the
agency, of agency administrative remedial procedures for
the resolution of protests as a discretionary alternative to
protest fora outside the agency. It is further the sense of
Congress that during the pendency of such procedures,
protest stay periods should be tolled.
Subtitled D—Policy, Definitions, and Other
Matters
SEC. 1551. REPEAL OF MULTI-YEAR LIMITATION ON IN-
SPECTION, MAINTENANCE, AND REPAIR.
Section 210 of the Federal Property and Administra-
tive Act of 1949, as amended, (40 U.S.C. 490) is amend-
ed—
(1) by deleting paragraph (14); and
(2) by redesignating paragraphs (15, (16), (17),
(18), and (19) as (14), (15), (16), (17), and (18) re-
spectively.
SEC. 1552. PUBLIC UTILITIES SERVICES.
Section 210(a) of the Federal Property and Adminis-
trative Services Act of 1949 (40 U.S.C. 490) as amended
by section 1551 is further amended by adding at the end
the following:
‘‘(19) accept and pay for public utility service
from an entity which is a monopoly providing serv-
ices under a tariff at the lowest applicable rates ap-
proved or set by a Federal, State or local govern-
mental body in accordance with the terms and condi-
tions of such tariff, without entering into a con-
tract.’’.
SEC. 1553. CONTRACTING FOR GUARDS, ELEVATOR OPERA-
TORS, MESSENGERS, AND CUSTODIANS.
Section 210(a) of the Federal Property and Adminis-
trative Services Act of 1949, as amended (40 U.S.C. 490),
is amended to add the following section (1):
‘‘(l) Notwithstanding any other provision of law,
funds appropriated pursuant to section 210(f) of the Fed-
eral Property and Administrative Services Act of 1949,
as amended, shall be available for the procurement by con-
tract for the services of guards, elevator operators, mes-
sengers, and custodians without limitation.’’.
TITLE II—CONTRACT ADMINISTRATION
Subtitle A—Contract Payment
PART I—ARMED SERVICES ACQUISITIONS
SEC. 2001. VESTITURE OF TITLE.
Section 2307(e) of title 10, United States Code, is
amended by inserting after paragraph (3) the following
new paragraph:
‘‘(4) When payments have been made under
subsection (a), title to parts, materials, inventory,
work in progress, and other property, hereinafter
collectively referred to as property, shall vest in the
United States. Vestiture shall be immediately upon
the date of the contract for property acquired or
produced before that date. Otherwise, vestiture shall
occur when the property is or should have been allo-
cable or properly chargeable to the contract. Title
shall vest in the United States regardless of any
prior or subsequently asserted security interest in
the property. This right to take title may be waived
by the head of the agency for an individual acquisi-
tion or a class of acquisitions or by the Federal Ac-
quisition Regulation for a class of acquisitions gov-
ernmentwide.’’.
PART II—CIVILIAN AGENCY ACQUISITIONS
SEC. 2051. VESTITURE OF TITLE.
Section 305(e) of the Federal Property and Adminis-
trative Services Act of 1949 (41 U.S.C. 255) is amended
by inserting after subsection (3) the following new sub-
section (4):
‘‘(4) When payments have been made under
subsection (a), title to parts, materials, inventory,
work in progress, and other property, hereinafter
collectively referred to as property, shall vest in the
United States. Vestiture shall be immediately upon
the date of the contract for property acquired or
produced before that date. Otherwise, vestiture shall
occur when the property is or should have been allo-
cable or properly chargeable to the contract. Title
shall vest in the United States regardless of any
prior or subsequently asserted security interest in
the property. This right to take title may be waived
by the head of the agency for an individual acquisi-
tion or a class of acquisitions or by the Federal Ac-
quisition Regulation for a class of acquisitions gov-
ernmentwide.’’.
Subtitle B—Cost Principles
PART I—CIVILIAN AGENCY ACQUISITIONS
SEC. 2101. APPLICABILITY OF COST PRINCIPLES.
Section 306 of the Federal Property and Administra-
tive Services Act of 1949 (41 U.S.C. 256) is amended in
subsection (l)(1) by inserting ‘‘a contract for health bene-
fits under section 8903(1)–(3) of title 5, United States
Code, and’’ after ‘‘means’’.
PART II—ACQUISITIONS GENERALLY
SEC. 2151. ALLOWABLE CONTRACT COSTS.
(a) PROTEST COSTS.—The Federal Acquisition Reg-
ulation shall identify those costs incurred in preparation,
filing, or pursuit of a protest, including attorneys’ fees and
consultant and expert witness fees which are unallowable,
in whole or in part, under covered contracts.
(b) COVERED CONTRACT DEFINED.—The term ‘‘cov-
ered contract’’ has the meaning given such term in section
2324(l) of title 10, United States Code, and section 306(l)
of the Federal Property and Administrative Services Act
of 1949.
Subtitle C—Claims and Disputes
SEC. 2251. DIVESTITURE OF DISTRICT COURTS OF DISPUTE
JURISDICTION.
Section 1346(a)(2) of title 28, United States Code,
is amended to read as follows:
‘‘(2) Any other civil action or claim against the
United States, not exceeding $10,000 in amount,
founded either upon the Constitution, or any Act of
Congress, or any regulation of an executive depart-
ment, or upon any express or implied contract with
the United States, or for liquidated or unliquidated
damages in cases not sounding in tort, except that
the district courts shall not have jurisdiction over
any civil action or claim against the United States
or any Federal entity which relates in any manner
to a contract subject to the Contract Disputes Act
of 1978, including, but not limited to, a claim which
seeks to establish the existence or nonexistence of
such a contract with the United States, seeks to es-
tablish that an existing contract subject to the Con-
tract Disputes Act is void, or seeks to determine and
construe the terms of such a contract. This excep-
tion bars the district courts from exercising any ju-
risdiction of the above-described civil actions or
claims pursuant to section 1331, 1334 of title 28,
United States Code, or any other provision of law in-
cluding any provision giving a Federal entity the
right to sue or be sued in its own name.’’.
SEC. 2252. CONTRACT DISPUTES ACT IMPROVEMENT
Section 10(a)(3) of the Contract Disputes Act of
1978 (41 U.S.C. 609(a)(3)) is amended by striking out
‘‘twelve months’’ each place it appears and inserting in
lieu thereof in each instance ‘‘ninety days’’.
Subtitle D—Miscellaneous
SEC. 2301. ACCOUNTING FOR ADVISORY AND ASSISTANCE
SERVICES.
Section 1105 of title 31, United States Code, is
amended by striking subsection (g).
SEC. 2302. WAIVERS FROM CANCELLATION OF FUNDS.
Notwithstanding section 1552(a) of title 31, United
States Code, (1) funding appropriated for satellite on-orbit
incentive fees will remain available for obligation until the
fee is earned, and (2) funding appropriated for Shipbuild-
ing and Conversion, Navy, and for other government ship-
building appropriations, available for engineering services,
tests, evaluations, and other such budgeted work that
must be performed in the final stage of ship construction
shall be available for obligation until the purpose for which
such monies were appropriated is satisfied.
TITLE III—COMMERCIAL ITEMS
SEC. 3001. COMMERCIAL ITEMS.
Section 4(12)(F) of the Office of Federal Procure-
ment Policy Act (41 U.S.C. 403(12)(F)) is amended to
read as follows:
‘‘(F) Services offered and sold competitively, in
substantial quantities, in the commercial market-
place based on established prices for specific tasks
performed and under standard commercial terms
and conditions.’’.
TITLE IV—SIMPLIFIED ACQUISITION
THRESHOLD
Subtitle A—Threshold Defined
SEC. 4001. SIMPLIFIED ACQUISITION THRESHOLD DE-
FINED.
Section 4(11) of the Office of Federal Procurement
Policy Act (41 U.S.C. 403(11)) is amended to read as fol-
lows:
‘‘(11) The term ‘simplified acquisition thresh-
old’ means:
‘‘(A) $100,000; or
‘‘(B) $1,000,000 for the acquisition of
services, including construction, when the pro-
curement is conducted as a small business set-
aside and if supply items are expected to con-
stitute less than 20 percent of the total value
of the contract.’’.
Subtitle B—Inapplicability of Laws to Acqui-
sitions at or Below the Simplified Acqui-
sition Threshold
SEC. 4101. MILLER ACT.
Section 4104(b)(2) of the Federal Acquisition
Streamlining Act of 1994 is repealed.
Subtitle C—Simplified Procedures
SEC. 4201. REPEAL OF DUPLICATIVE AUTHORITY FOR SIM-
PLIFIED ACQUISITION PURCHASES.
Section 31 of the Office of Federal Procurement Pol-
icy Act is amended—
(1) by striking out subsections (a), (b), and (c);
(2) by redesignating subsections (d), (e), and
(f) as (a), (b), and (c) respectively; and
(3) in subsection (b) as redesignated by striking
out ‘‘pursuant to this section’’ in paragraphs (1) and
(2) and inserting in lieu thereof ‘‘pursuant to section
2304(g) of title 10 and section 253(g) of title 41,
United States Code.’’.
SEC. 4202. AMENDMENT TO CONFORM PROCUREMENT NO-
TICE POSTING THRESHOLDS.
Section 18(a)(1)(B) of the Office of Federal Procure-
ment Policy Act (41 U.S.C. 416(a)(1)(B)) is amended—
(1) by inserting, after the word ‘‘contract’’ the
following: ‘‘expected to exceed $10,000 but not to
exceed $25,000’’ and
(2) by deleting subparagraphs (i) and (ii) en-
tirely.
SEC. 4203. EXEMPTION FROM WAIT PERIOD WHEN USING
DETAILED SYNOPSIS.
(A) WAIT PERIODS.—Paragraph (3)(A) of section
18(a) of the Office of Federal Procurement Policy Act (41
U.S.C. 416(a)(3)) is amended by adding ‘‘except when the
notice includes a description of the item(s) to be acquired
along with all other information necessary for the offeror
to prepare an offer’’ after ‘‘published by the Secretary of
Commerce’’.
(b) LIMITATION.—Subsection (a) shall not apply to
the extent the President determines it is inconsistent with
any international agreement to which the United States
is a party.
SEC. 4204. EXEMPTION FROM SYNOPSIZING REQUIRE-
MENTS.
(a) EXEMPTION.—Subsection (c) of section 18 of the
Office of Federal Procurement Policy Act (41 U.S.C.
416(c)(1)), is amended—
(1) in paragraph (1)(A) by striking ‘‘for an
amount not greater than the simplified acquisition
threshold and is’’; and
(2) in paragraph (1)(B)(i) by striking ‘‘for an
amount not greater than $250,000 and is’’.
(b) RESPONSE TIMES.—Such subsection is further
amended by adding at the end the following new para-
graph (4):
‘‘(4) In all procurements accomplished by in-
terim or full FACNET, contracting officers shall
provide a reasonable period within which for con-
tractors to respond to the solicitation commensurate
with the complexity of the procurement.’’.
(c) LIMITATIONS.—Subsections (a) and (b) shall not
apply to the extent the President determines it is incon-
sistent with any international agreement to which the
United States is a party.
SEC. 4205. REPEAL OF DUPLICATIVE PROCUREMENT NO-
TICE PROVISION.
Section 8 of the Small Business Act (15 U.S.C. 637)
is amended—
(1) by striking out subsections (e), (f), and (g);
(2) by redesignating subsections (h) and (i) as
redesignated by section 1091 as subsections (e) and
(f) respectively; and
(3) in subsection (e), as redesignated, by strik-
ing ‘‘under subsection (e)’’ and inserting in lieu
thereof ‘‘pursuant to section 18 of the Office of Fed-
eral Procurement Policy Act (41 U.S.C. 416)’’.
SEC. 4206. TECHNICAL AMENDMENTS.
(a) Section 18 of the Office of Federal Procurement
Policy Act (41 U.S.C. 416) is amended in subparagraph
(c)(1)(E) by inserting, ‘‘a task order contract, or a deliv-
ery order contract’’ after ‘‘requirements contract’’.
Subtitle D—Micro-Purchase Procedures
SEC. 4301. MICRO-PURCHASES.
Section 32(d) of the Office of Federal Procurement
Policy Act (42 U.S.C. 428) is amended by striking out
‘‘the contracting officer determines that the price for the
purchase is’’ and inserting in lieu thereof ‘‘if the price for
the purchase is considered’’.
TITLE V—ACQUISITION MANAGEMENT
Subtitle A—Pilot Programs
SEC. 
5001. 
ACQUISITION 
RESEARCH 
DEMONSTRATION
PROJECTS.
Section 15 of the Office of Federal Procurement Pol-
icy Act (41 U.S.C. 413) is amended to read as follows:
‘‘SEC. 15. ACQUISITION DEMONSTRATION PROJECTS.
‘‘(a) The Administrator may authorize agencies in
consultation with agency heads to conduct and evaluate
test programs to determine whether a specified change in
acquisition policies or procedures would result in improved
Federal acquisition management. The conduct of a test
program shall not be limited by any lack of specific au-
thority under this section to take the action contemplated
or by any law, rule or regulation that is inconsistent with
the test program or that impedes its full implementation.
To the extent necessary, the Administrator may waive any
provision of law, rule or regulation necessary to implement
a demonstration project successfully.
‘‘(b) Before conducting any test program, the Agency
participating in the program shall develop a plan for the
project which identifies—
‘‘(1) the purposes of the project;
‘‘(2) the methodology, duration, and anticipated
costs;
‘‘(3) the methodology and criteria for evalua-
tion;
‘‘(4) a specific description of any aspect of the
project for which the lack of specific authority exists;
and
‘‘(5) a specific citation to any provision of law,
rule or regulation which, if not waived under this
section, would prohibit the conduct of the project or
any part of the project as proposed.
‘‘(c) Unless a longer time period for a demonstration
project is approved by the Administrator and the reasons
for the extension are described in the plan in accordance
with section (b) above, each demonstration project shall
terminate before the end of the five year period beginning
on the date on which the project takes effect, except that
the project may continue beyond the date to the extent
necessary to validate the results of the project.
‘‘(d) The Administrator or the Agency head may ter-
minate any project if he determines that the project is no
longer in the best interests of the public or the Federal
Government.
‘‘(e) The Administrator shall provide for an evalua-
tion of the results of each demonstration project and its
impact on improving public management.
‘‘(f) The head of an agency may submit a test plan
that specifies the use of adequate competition when con-
ducting an acquisition that is a recompetition for a con-
tinuing requirement where the agency head certifies that
the incumbent contractor has met or exceeded the cost,
schedule, and performance requirements established in the
current contract.
‘‘(g) The Administrator shall prescribe regulations as
are necessary to carry out the purpose of this section.
‘‘(h) A program to test procurement methods and
procedures under this section may not be carried out un-
less approved by the heads of the executive agencies se-
lected to carry out such programs.’’.
Subtitle B—Miscellaneous
SEC. 5051. ADMINISTRATIVE PROCEDURES, DEPARTMENT
OF ENERGY.
‘‘Section 501(b)(3) of the Department of Energy Or-
ganization Act (42 U.S.C. 7191(b)(3)) is amended to read
as follows:
‘‘For purposes of this title, the exception from the
requirements of section 553 of title 5, United States Code,
provided by subsection (a)(2) of such section with respect
to grants or loans shall not be available.’’.
TITLE VI—OTHER PROCUREMENT-
RELATED MATTERS
Subtitle A—Standards of Conduct/Ethics
SEC. 6001. DISCLOSING AND OBTAINING CONTRACTOR BID
OR PROPOSAL INFORMATION OR SOURCE SE-
LECTION INFORMATION.
(a) Section 27 of the Office of Federal Procurement
Policy Act (41 U.S.C. 423) is amended—
(1) by repealing subsections (a) through (e) and
(g) through (p);
(2) by amending subsection (f) by striking the
words ‘‘RESTRICTIONS
RESULTING
FROM
PRO-
CUREMENT ACTIVITIES
OF PROCUREMENT OFFI-
CIALS.—’’ and by redesignating subsection (f) as
subsection (i); and
(3) by adding the following before subsection
(i):
‘‘SEC. 27. DISCLOSING AND OBTAINING CONTRACTOR BID
OR PROPOSAL INFORMATION OR SOURCE SE-
LECTION INFORMATION AND RESTRICTIONS
RESULTING FROM PROCUREMENT ACTIVI-
TIES OF PROCUREMENT OFFICIALS.
‘‘(a) 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 Unit-
ed States with respect to a Federal agency procurement
and who—
‘‘(1) by virtue of that office, employment, or re-
lationship has or had access to contractor bid or pro-
posal information or source selection information,
and
‘‘(2) other than as provided by law, knowingly
discloses that information before the award of a
Federal agency procurement contract to which the
information relates, is subject to the penalties and
administrative actions set forth in subsection (d).
‘‘(b) Whoever, other than as provided by law, know-
ingly obtains contractor bid or proposal information or
source selection information before the award of a Federal
agency procurement contract to which the information re-
lates, is subject to the penalties and administrative actions
set forth in subsection (d).
‘‘(c) Whoever, other than as provided by law, know-
ingly violates the terms of a protective order, issued by
the Comptroller General or the board of contract appeals
of the General Services Administration in connection with
a protest against the award or proposed award of a Fed-
eral agency procurement contract, by disclosing or obtain-
ing contractor bid or proposal information or source selec-
tion information is subject to the penalties and adminis-
trative actions set forth in subsection (d).
‘‘(d) The penalties and administrative actions for an
offense under subsection (a), (b), or (c), are as follows:
‘‘(1) CRIMINAL PENALTIES.—
‘‘(A) Whoever engages in the conduct con-
stituting the offense shall be imprisoned for not
more than one year or fined in the amount set
forth in section 3571 of title 18, United States
Code, or both.
plus twice the amount of compensation which the or-
ganization received or offered for the prohibited con-
duct.
‘‘(3) Administrative actions. If a Federal agen-
cy receives information that a contractor or a person
has engaged in conduct constituting an offense
under subsection (a), (b), or (c), the Federal agency
shall consider one or more of the following actions,
as appropriate:
‘‘(A) Canceling the Federal agency pro-
curement when a contract has not been award-
ed;
‘‘(B) Declaring void and rescinding a con-
tract in relation to which there has been ei-
ther—
‘‘(i) a conviction for an offense under
subsection (a), (b), or (c), committed by
the contractor or someone acting for the
contractor, or
‘‘(ii) a determination by the head of
the agency based upon a preponderance of
the evidence that the contractor or some-
one acting for the contractor has engaged
in such conduct.
If such action is taken, the United States is en-
titled to recover in addition to any penalty pre-
scribed by law, the amount expended under the
contract;
‘‘(C) Initiating suspension or debarment
proceedings for the protection of the Govern-
ment in accordance with procedures in the Fed-
eral Acquisition Regulation. In this regard, en-
gaging in conduct constituting an offense under
subsection (a), (b), or (c), affects the present
responsibility of a Government contractor or
subcontractor; or
‘‘(D) Initiating adverse personnel action,
pursuant to the procedures in chapter 75 of
title 5, United States Code, or other applicable
law or regulation.
‘‘(e) For purposes of this section:
‘‘(1) The term ‘contracting officer’ means a
person who, by appointment in accordance with ap-
plicable regulations, has the authority to enter a
Federal agency procurement contract on behalf of
the Government and to make determinations and
findings with respect to such a contract.
‘‘(2) The term ‘contractor bid or proposal infor-
mation’ means the following information submitted
to a Federal agency as part of or in connection with
a bid or proposal to enter into a Federal agency pro-
curement contract, if that information has not been
previously made available to the public or disclosed
publicly;
‘‘(A) Cost or pricing data;
‘‘(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; or
‘‘(D) Information marked by the contrac-
tor as ‘contractor bid or proposal information,’
in accordance with applicable law or regulation.
‘‘(3) The term ‘Federal agency’ has the mean-
ing given that term in section 3 of the Federal Prop-
erty and Administrative Services Act (40 U.S.C.
472).
‘‘(4) The term ‘Federal agency procurement’
means the competitive acquisition by contract of
supplies or services (including construction) from
non-Federal sources by a Federal agency using ap-
propriated funds.
‘‘(5) 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 section 111 of the Federal Property and
Administrative Services Act (40 U.S.C. 759) or sub-
chapter V of chapter 35 of title 31, United States
Code.
‘‘(6) The term ‘source selection information’
means the following information prepared for use by
a Federal agency for the purpose of evaluating a bid
or proposal to enter into a Federal agency procure-
ment contract, if that information has not been pre-
viously made available to the public or disclosed pub-
licly:
‘‘(A) Bid prices submitted in response to a
Federal agency solicitation for sealed bids or
lists of those bid prices prior to 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
which 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 or boards or advisory councils;
or
‘‘(J) Other information marked as ‘source
selection information’ based upon 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.
‘‘(f) No person may file a protest against the award
or proposed award of a Federal agency procurement con-
tract alleging an offense under subsection (a), (b), or (c),
of this section, nor may the Comptroller General or the
board of contract appeals of the General Services Adminis-
tration consider such an allegation in deciding such a pro-
test, unless that person reported information to the Fed-
eral agency responsible for the procurement that he be-
lieved constituted evidence of the offense no later than ten
working days after he first discovered the possible offense.
‘‘(g) 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 the Federal agency procurement
after it has been canceled by the Federal agency
prior to contract award unless the Federal agency
plans on resuming the procurement;
‘‘(4) authorize the withholding of information
from nor restrict its receipt by the Congress, a com-
mittee or subcommittee thereof, the Comptroller
General, a Federal agency, or an Inspector General
of a Federal agency;
‘‘(5) authorize the withholding of information
from nor restrict its receipt by the Court of Federal
Claims, any board of contract appeals of a Federal
agency or the Comptroller General in the course of