(3) WAIVER.—
(A) The Secretary (or a designee who is an
officer of the Department at or above the level of
the senior procurement executive of the Depart-
ment designated pursuant to section 16(3) of the
Office of Federal Procurement Policy Act (41
U.S.C. 414(3)) may waive the application of the
restriction set forth in paragraph (2) to a task
order if the Secretary determines in writing that
unusual circumstances exist making such a
waiver in the interests of the Government.
(B) For purposes of subparagraph (A), the
term ‘‘unusual circumstances’’ means—
(i) insolvency, nonresponsibility, sus-
pension, or debarment of all subcontractors
identified pursuant to paragraph (1) that
are qualified to perform a task order or
work assignment for which the waiver is
granted;
(ii) a lack of any technical skills nec-
essary to perform the task order or work as-
signment for which the waiver is granted,
by all subcontractors identified pursuant to
paragraph (1);
(iii) other circumstances similar to
those referred to in clauses (i) and (ii); or
(iv) any identifiable emergency or
other urgent requirement determined by the
Secretary in writing to exist.
(4) COMPETITION.—In any case in which the
Secretary or his or her designee grants a waiver
under paragraph (3), the award by the prime con-
tractor to the subcontractor of a subcontract to per-
form a task for which the waiver is granted shall be
on a competitive basis unless the written determina-
tion under paragraph (3)—
(A) approves a noncompetitive award; and
(B) includes a finding that—
(i) an identifiable emergency or other
urgent requirement exists; or
(ii) no other qualified source is reason-
ably available.
(5) LIMITATION
ON
APPLICATION.—This sub-
section shall not apply to a response action contract
(as that term is defined in section 119(e) of the Com-
prehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9619(e)), as in
effect on the date of the enactment of this Act).
(e) PROVISIONS NOT AFFECTED.—Nothing in this sec-
tion shall be construed as amending, modifying, or super-
seding, or is intended to impair or restrict authorities or
responsibilities under—
(1) title IX of the Federal Property and Admin-
istrative Services Act of 1949 (40 U.S.C. 541 et seq.),
commonly referred to as the ‘‘Brooks Architect-Engi-
neers Act’’;
(2) the Small Business Act (15 U.S.C. 631 et
seq.), including section 8(a) of that Act (15 U.S.C.
637(a)); or
(3) title X of the Act of November 15, 1990 (42
U.S.C. 7601 note), popularly known as the ‘‘Clean
Air Act Amendments of 1990’’, relating to disadvan-
taged business concerns.
(f) DEFINITIONS.—In this section—
(1) the term ‘‘advisory and assistance serv-
ices’’—
(A) means services to support or improve—
(i) agency policy development, deci-
sionmaking, management, and administra-
tion; or
(ii) the operation of management sys-
tems; and
(B) includes—
(i) management and professional sup-
port services;
(ii) the conduct of studies, analyses,
and evaluations; and
(iii) engineering and technical services,
including services provided under a re-
sponse action contract (as that term is used
in subsection (a)(1)(B)); and
(2) the term ‘‘umbrella contract’’ means a con-
tract by the Department that—
(A) provides for the performance of specific
advisory and assistance services;
(B) does not procure or specify a firm
quantity of services;
(C) provides for services to be supplied to
the Government in response to specific task or-
ders to the contractor from the Government;
(D) requires the contractor to provide a
stated amount of effort over a given period of
time (commonly referred to as a ‘‘level of effort
contract’’);
(E) has a maximum potential value of more
than $1,000,000 and is not a fixed price con-
tract; and
(F) is for a period longer than 1 year.
(g) LIMITATION ON APPLICATION TO EXISTING CON-
TRACTS.—
(1) IN GENERAL.—Except as provided in para-
graph (2), this section shall not apply to a contract
entered into before the effective date of this section.
(2) CONTRACTING REQUIREMENTS.—Subsections
(b) and (c) shall apply to—
(A) a task order or work assignment added
on or after the effective date of this section to a
contract entered into before that effective date;
and
(B) a contract that is extended, or for which
an option to renew is exercised, on or after the
effective date of this section.
(h) PUBLIC AVAILABILITY.—Waivers granted under
this section shall be available as provided in section 552(b)
of title 5, United States Code.
SEC. 117. PROHIBITION ON TRANSFERRING TO CONTRAC-
TORS INHERENTLY GOVERNMENTAL FUNC-
TIONS OF DEPARTMENT.
(a) POLICY.—It shall be the policy of the Department
to prevent the transfer of inherently governmental functions
of the Department to private sector contractors and to en-
sure that inherently governmental functions of the Depart-
ment are performed only by officers and employees of the
Department or other agencies and instrumentalities of the
Government.
(b) FINAL ACTIONS.—Final actions of the Department
shall reflect the independent conclusions of Department offi-
cials.
(c) RESPONSIBILITIES OF THE SECRETARY.—The Sec-
retary shall—
(1) ensure that the Department is in full compli-
ance with all statutes and regulations that govern the
performance of inherently Governmental functions,
including by periodically reviewing the operations of
the Department with regard to compliance with stat-
utes and regulations governing performance of inher-
ently governmental functions (including this section);
(2) ensure that no contract is solicited or award-
ed by the Department, and no task order or work as-
signment is made under a contract awarded by the
Department, that fails to comply with statutes and
regulations that govern the performance of inherently
governmental functions;
(3) provide enhanced scrutiny and management
oversight when the Department is contracting for
functions that, although not inherently governmental,
closely support the performance of inherently govern-
mental functions; and
(4) promulgate regulations in the Department’s
supplement to the Federal Acquisition Regulation
that specify that inherently governmental functions of
the Department include—
(A) regulation of public health, industry,
commerce, or the environment;
(B) development (other than technical as-
sistance) and drafting of rules, standards, regu-
lations, and Government policies; and
(C) preparation of contractual documents,
including solicitations, specifications, statements
of work, and contract orders, except in the case
of specifications and statements of work of a
technical nature requiring expertise not available
in the Department.
(d) DISCLAIMER.—This section shall not be construed
as creating—
(1) any substantive or procedural basis on which
to challenge any agency action or inaction; or
(2) any right or benefit enforceable by law.
(e) LIMITATION ON APPLICATION.—
(1) IN GENERAL.—Except as provided in para-
graph (2), this section shall not apply to an inher-
ently governmental function performed under a con-
(2) INCREASED PENALTY.—If the Secretary de-
termines that a proposal for settlement of indirect
costs submitted by a contractor under a covered con-
tract includes a cost determined to be unallowable in
the case of such contractor before the submission of
such proposal, the Secretary shall assess a penalty
against the contractor in an amount equal to twice
the amount of the disallowed cost allocated to covered
contracts for which a proposal for settlement of indi-
rect costs has been submitted.
(c) WAIVER
OF PENALTIES.—The Secretary may
waive a penalty under subsection (b) in the case of a con-
tractor’s proposal for settlement of indirect costs if—
(1) the contractor withdraws the proposal before
the formal initiation of an audit of the proposal by
the Government and resubmits a revised proposal;
(2) the amount of unallowable costs subject to the
penalty is insignificant; or
(3) the contractor demonstrates, to the contract-
ing officer’s satisfaction, that—
(A) it has established appropriate policies
and personnel training and an internal control
and review system that provide assurance that
unallowable costs subject to penalties are pre-
cluded from being included in the contractor’s
proposal for settlement of indirect costs; and
(B) the unallowable costs subject to the pen-
alty were inadvertently incorporated into the
proposal.
Such waivers shall be available in accordance with section
552(b) of title 5, United States Code.
(d) DEPARTMENT ACTIONS.—An action of the Sec-
retary under subsection (a) or (b)—
(1) shall be considered a final decision for pur-
poses of section 6 of the Contract Disputes Act of 1978
(41 U.S.C. 605); and
(2) is appealable in the manner provided in sec-
tion 7 of that Act (41 U.S.C. 606).
(e) CERTIFICATION.—
(1) IN GENERAL.—A proposal for settlement of
indirect costs applicable to a covered contract shall
include a certification by an official of the contractor
that, to the best of the certifying official’s knowledge
and belief, all indirect costs included in the proposal
are allowable.
(2) WAIVER OF CERTIFICATION REQUIREMENT.—
The Secretary may, in an exceptional case, waive the
requirement for certification under paragraph (1) in
the case of any covered contract if the Secretary—
(A) determines in such case that it would be
in the interest of the United States to waive such
determination; and
(B) states in writing the reasons for that
determination and makes such determination
available to the public.
Such waivers shall be available in accordance with section
552(b) of title 5, United States Code.
(f) CRIMINAL PENALTIES.—The submission to the De-
partment of a proposal for settlement of costs for any period
after such costs have been accrued that includes a cost that
is expressly specified by law or regulation as being unallow-
able, with the knowledge that such cost is unallowable, shall
be subject to the provisions of section 287 of title 18 and
section 3729 of title 31, United States Code.
(g) BURDEN OF PROOF IN PROCEEDINGS.—In a pro-
ceeding before a board of contract appeals, the United States
Court of Federal Claims, or any other Federal Court in
which the reasonableness of indirect costs for which a con-
tractor seeks reimbursement from the Department is in
issue, the burden of proof shall be upon the contractor to
establish that those costs are reasonable.
(h) DOCUMENTATION OF COSTS.—Costs shall be allow-
able under a covered contract only to the extent that such
costs are supported by sufficient documentation (as speci-
fied by regulations issued by the Secretary under section
122) to permit audit.
(i) COVERED CONTRACT DEFINED.—As used in this
section and sections 119 and 120, the term ‘‘covered con-
tract’’ means a contract for an amount more than $100,000,
other than a fixed-price contract without cost incentives, en-
tered into by the Department.
SEC. 119. CONTRACTOR EMPLOYEE GIFT, ENTERTAINMENT,
OR RECREATION COSTS SPECIFICALLY UNAL-
LOWABLE UNDER DEPARTMENT CONTRACTS.
Costs of entertainment, gifts, or recreation for contrac-
tor employees or members of their families provided by a
contractor to improve employee morale or performance or
for any other purpose, are not allowable under a covered
contract in any amount, except that nothing in this section
precludes a contractor from providing such entertainment,
gifts, or recreation to their employees or members of their
families at no expense to the Government.
SEC. 120. DOCUMENTATION OF CONTRACTOR TRAVEL
COSTS.
Costs of travel under a covered contract which are oth-
erwise allowable under section 24 of the Office of Federal
Procurement Policy Act (41 U.S.C. 421) shall be allowable
only if supported by documentation, which shall include
documentation of, as specified by regulations issued by the
Secretary under section 122, amounts, times, dates, origin,
and destination of the travel, purpose of the travel, and
identities of all travelers to which the costs relate.
SEC. 121. EFFECTIVE DATES; LIMITATIONS ON APPLICA-
TION.
(a) EFFECTIVE DATES.—Sections 116 through 120
shall take effect on the earlier of the date that is 90 days
after the date of promulgation of regulations under section
122, or the date that is 18 months after the date of the en-
actment of this Act.
(b) LIMITATIONS ON APPLICATION.—
(1) IN GENERAL.—Except as provided in para-
graph (2), sections 118, 119, and 120 shall not apply
to a contract entered into before the effective date of
those sections.
(2) EXCEPTIONS.—Section 118 shall apply to—
(A) a task added on or after the effective
date of the section to a contract entered into be-
fore that effective date;
(B) an order made on or after the effective
date of the section under a contract entered into
before that effective date; and
(C) a contract that is extended, or for which
an option to renew is exercised, on or after the
effective date of the section.
SEC. 122. REGULATIONS.
(a) IN GENERAL.—The Secretary shall promulgate
such revisions as may be necessary to the Department’s sup-
plement to the Federal Acquisition Regulation implement-
ing sections 116 through 120 in final form within one year
after the date of enactment of this Act. The revisions shall
include binding guidance for granting waivers under sub-
sections (b) and (d) of section 116.
(b) PROCEDURES.—Section 25(c) of the Office of Fed-
eral Procurement Policy Act (41 U.S.C. 421(c)) shall apply
to regulations issued under sections 116 through 120, except
that the Administrator for Federal Procurement Policy may
rescind or deny the promulgation of any such regulation,
or take any other action authorized by section 6 of that
Act (41 U.S.C. 405), only with respect to any inconsistency
of the regulation with those sections which shall be identi-
fied by the Administrator. The Administrator shall notify
the appropriate Committees of the Congress with jurisdic-
tion over the Department and explain the basis for such
action.
(c) OTHER GOVERNMENT-WIDE REGULATIONS SUPER-
SEDING SECTIONS 118, 119, AND 120.—
(1) IN GENERAL.—On and after the effective date
of modifications to the Federal Acquisition Regula-
tion relating to the matters covered by sections 118,
119, and 120 that apply to all executive agencies, in-
jurisdiction, which relate to functions of the Adminis-
trator or any other officer or agent of the Environ-
mental Protection Agency actions; and
(2) which are in effect at the time this Act takes
effect;
shall continue in effect according to their terms until modi-
fied, terminated, superseded, set aside, or revoked in accord-
ance with law by the President, the Secretary, or other au-
thorized official, by a court of competent jurisdiction, or
by operation of law.
(c) PROCEEDINGS NOT AFFECTED.—This Act shall not
affect any proceeding, proposed rule, or application for any
license, permit, certificate, or financial assistance pending
before the Environmental Protection Agency at the time this
Act takes effect, and such proceedings and applications shall
be continued. Orders shall be issued in such proceedings,
appeals shall be taken therefrom, and payments shall be
made pursuant to such orders, as if this Act had not been
enacted, and orders issued in any such proceedings shall
continue in effect until modified, terminated, superseded,
or revoked by a duly authorized official, by a court of com-
petent jurisdiction, or by operation of law. Nothing in this
subsection prohibits the discontinuance or modification of
any such proceeding under the same terms and conditions
and to the same extent that such proceeding could have been
discontinued or modified if this Act had not been enacted.
(d) SUITS NOT AFFECTED.—This Act shall not affect
suits commenced before the effective date of this Act, and
in all such suits proceedings shall be had, appeals taken,
and judgments rendered in the same manner and with the
same effect as if this Act had not been enacted.
SEC. 125. CONFORMING AMENDMENTS.
(a) PRESIDENTIAL SUCCESSION.—Section 19(d)(1) of
title 3, United States Code, is amended by inserting before
the period at the end the following: ‘‘, Secretary of the
Environment’’.
(b) DEFINITION OF DEPARTMENT IN CIVIL SERVICE
LAWS.—Section 101 of title 5, United States Code, is
amended by adding at the end the following:
‘‘The Department of Environmental Protection.’’.
(c) COMPENSATION, LEVEL I.—Section 5312 of title 5,
United States Code, is amended by adding at the end the
following:
‘‘Secretary of the Environment.’’.
(d) COMPENSATION, LEVEL II.—Section 5313 of title
5, United States Code, is amended by striking ‘‘Adminis-
trator of the Environmental Protection Agency’’ and insert-
ing ‘‘Deputy Secretary of the Environment’’.
(e) COMPENSATION, LEVEL III.—Section 5314 of title
5, United States Code, is amended by striking ‘‘Deputy Ad-
ministrator of the Environmental Protection Agency.’’.
(f) COMPENSATION, LEVEL IV.—Section 5315 of title
5, United States Code, is amended—
(1) by striking ‘‘Inspector General, Environ-
mental Protection Agency’’ and inserting ‘‘Inspector
General, Department of Environmental Protection’’;
(2) by striking each reference to an Assistant Ad-
ministrator, or Assistant Administrators, of the Envi-
ronmental Protection Agency; and
(3) by adding at the end the following:
‘‘Assistant Secretaries, Department of Environ-
mental Protection.
‘‘General Counsel, Department of Environmental
Protection.’’.
(g) COMPENSATION, LEVEL V.—Section 5316 of title
5, United States Code, is amended by adding at the end
the following:
‘‘Director, Bureau of Environmental Statistics,
Department of Environmental Protection.
‘‘Director, Office of Environmental Justice, De-
partment of Environmental Protection.
‘‘Director, Office of Environmental Risk, Depart-
ment of Environmental Protection.’’.
(h) INSPECTOR GENERAL ACT OF 1978.—The Inspec-
tor General Act of 1978 is amended—
(1) in section 11(1)—
(A) by inserting ‘‘the Environment,’’ after
‘‘Energy,’’; and
(B) by striking ‘‘Environmental Protec-
tion,’’; and
(2) in section 11(2)—
(A) by inserting ‘‘Environmental Protec-
tion,’’ after ‘‘Energy,’’; and
(B) by striking ‘‘the Environmental Protec-
tion Agency,’’.
SEC. 126. ADDITIONAL CONFORMING AMENDMENTS.
After consultation with the Committee on Government
Operations of the House of Representatives and appropriate
committees of the Senate, the Secretary shall prepare and
submit to the Congress proposed legislation, which the Sec-
retary determines is necessary and appropriate, containing
technical and conforming amendments to the laws of the
United States to reflect the changes made by this Act.
TITLE II—ADMINISTRATIVE
PROVISIONS
SEC. 201. ACQUISITION OF COPYRIGHTS AND PATENTS.
The Secretary may acquire any of the following rights
if the property acquired thereby is for use by or for, or use-
ful to, the Department:
(1) Copyrights, patents, and applications for
patents, designs, processes, and manufacturing data.
(2) Licenses under copyrights, patents, and ap-
plications for patents.
(3) Releases, before suit is brought, for past in-
fringement of patents or copyrights.
SEC. 202. GIFTS AND BEQUESTS.
The Secretary may accept, hold, administer, and uti-
lize gifts, bequests, and devises of real or personal property
and donations of services for the purpose of aiding or facili-
tating the work of the Department. Gifts, bequests, and de-
vises of money and proceeds from sales of other property
received as gifts, bequests, or devises shall be deposited in
the Treasury and shall be available for disbursement upon
the order of the Secretary.
SEC. 203. OFFICIAL SEAL OF DEPARTMENT.
On and after the effective date of this Act, the seal of
the Environmental Protection Agency, with appropriate
changes, shall be the official seal of the Department, until