272
Office of Federal Procurement Policy Act, as added by
section 4001.
(2) The term ‘‘Federal agency’’ has the meaning
given such term in section 3(b) of the Federal Prop-
erty and Administrative Services Act of 1949 (41
U.S.C. 472(b)).
Subtitle B—Socioeconomic and
Small Business Laws
SEC. 4101. PAYMENT PROTECTIONS FOR SUBCONTRACTORS
AND SUPPLIERS.
(a) REGULATIONS.—
(1) IN GENERAL.—The Administrator for Fed-
eral Procurement Policy shall prescribe in regulations
the requirements described in paragraph (2).
(2) PROCEDURES
RELATING
TO
COMPLIANCE
WITH PAYMENT TERMS.—(A) Under procedures estab-
lished in the regulations, upon the assertion by a sub-
contractor or supplier of a contractor performing a
Government contract that the subcontractor or sup-
plier has not been paid by the prime contractor in ac-
cordance with the payment terms of the subcontract,
purchase order, or other agreement with the prime
contractor, the contracting officer may determine the
following:
273
(i) With respect to a construction contract,
whether the contractor has made progress pay-
ments to the subcontractor or supplier in compli-
ance with chapter 39 of title 31, United States
Code.
(ii) With respect to a contract other than a
construction contract, whether the contractor has
made progress or other payments to the sub-
contractor or supplier in compliance with the
terms of the subcontract, purchase order, or other
agreement with the prime contractor.
(iii) With respect to either a construction
contract or a contract other than a construction
contract, whether the contractor has made final
payment to the subcontractor or supplier in com-
pliance with the terms of the subcontract, pur-
chase order, or other agreement with the prime
contractor.
(iv) With respect to either a construction
contract or a contract other than a construction
contract, whether any certification of payment of
the subcontractor or supplier accompanying the
contractor’s payment request to the Government
is accurate.
274
(B) If the contracting officer determines that the
prime contractor is not in compliance with any mat-
ter referred to in clause (i), (ii), or (iii) of subpara-
graph (A), the contracting officer may, under proce-
dures established in the regulations—
(i) encourage the prime contractor to make
timely payment to the subcontractor or supplier;
or
(ii) reduce or suspend progress payments
with respect to amounts due to the prime con-
tractor.
(C) If the contracting officer determines that a
certification referred to in clause (iv) of subparagraph
(A) is inaccurate in any material respect, the con-
tracting officer shall, under procedures established in
the regulations, initiate appropriate administrative
or other remedial action.
(D) This paragraph shall apply with respect to
any Government contract, other than a Department of
Defense contract, that is in effect on the date of pro-
mulgation of the regulations under this subsection or
that is awarded after such date.
(b) INAPPLICABILITY TO CERTAIN CONTRACTS.—The
regulations prescribed under this section shall not apply to
the following contracts:
275
(1) A contract that is for an amount not in ex-
cess of the simplified acquisition threshold (within the
meaning of section 4A of the Office of Federal Pro-
curement Policy Act).
(2) A contract for the acquisition of commercial
items (as that term is defined in section 315 of the
Federal Property and Administrative Services Act of
1949).
(c) REGULATIONS DEADLINES.—(1) The Adminis-
trator for Federal Procurement Policy shall publish pro-
posed regulations under subsection (a) not later than 180
days after the date of the enactment of this Act.
(2) The Administrator shall publish final regulations
under subsection (a) not later than 270 days after the date
of the enactment of this Act.
(d) AMENDMENTS TO ARMED SERVICES PROVISION.—
Section 806 of the National Defense Authorization Act for
Fiscal Years 1992 and 1993 (Public Law 102–190; 10
U.S.C. 2301 note) is amended by striking out subsection
(c) and inserting in lieu thereof the following:
‘‘(c) INAPPLICABILITY TO CERTAIN CONTRACTS.—The
regulations prescribed under this section shall not apply to
the following contracts:
‘‘(1) A contract that is for an amount not in ex-
cess of the simplified acquisition threshold (within the
276
meaning of section 4A of the Office of Federal Pro-
curement Policy Act).
‘‘(2) A contract for the acquisition of commercial
items (as that term is defined in section 2281 of title
10, United States Code).’’.
SEC. 4102. SMALL BUSINESS PROCUREMENT ADVISORY
COUNCIL.
(a) ESTABLISHMENT.—There is hereby established an
interagency council to be known as the ‘‘Small Business
Procurement Advisory Council’’ (hereinafter in this section
referred to as the ‘‘Council’’).
(b) DUTIES.—The duties of the Council are—
(1) to serve as a forum for discussion of issues
and problems relating to, and ideas for improvement
of, small business procurement matters within the
Federal Government;
(2) to provide information to other departments
and agencies of the Federal Government about small
business procurement; and
(3) to issue advisory reports to the Small Busi-
ness Administration and the Office of Federal Pro-
curement Policy on small business procurement mat-
ters.
(c) MEMBERSHIP.—The Council shall be composed of
the following members:
277
(1) The Administrator of the Small Business Ad-
ministration (or the designee of the Administrator).
(2) The Administrator for Federal Procurement
Policy (or the designee of the Administrator).
(3) The Director of the Minority Business Devel-
opment Agency.
(4) The head of each Office of Small and Dis-
advantaged Business Utilization in each Federal
agency having procurement powers.
(d) CO-CHAIRMEN.—The Council shall be co-chaired
by the Administrator of the Small Business Administration
and the Administrator for Federal Procurement Policy.
(e) MEETINGS.—The Council shall meet at the call of
the chairmen, but not less often than four times a year and
once each quarter.
(f) DIRECTOR.—The Chief Counsel for Advocacy of the
Small Business shall serve as the director of the Council.
The director may not vote on matters before the council ex-
cept in the case of a tie vote among the members. The duties
of the director shall be determined by the chairmen of the
Council. The Chief Counsel for Advocacy shall receive no
additional pay by reason of the counsel’s service as director
of the Council.
(g) ANNUAL REPORT.—Not later than 30 days after
the end of each fiscal year, the Council shall submit to Con-
278
gress a report detailing the activities of the Council in the
preceding fiscal year in carrying out this section.
Subtitle C—Miscellaneous
Acquisition Laws
SEC. 4151. RESTRICTION ON USE OF NONCOMPETITIVE
PROCEDURES FOR PROCUREMENT FROM A
SPECIFIED SOURCE.
(a) ARMED SERVICES ACQUISITIONS.—Section 2304 of
title 10, United States Code, is further amended—
(1) in subsection (c)(5), by inserting ‘‘subject to
subsection (k),’’ after ‘‘(5)’’; and
(2) by adding at the end the following new sub-
section:
‘‘(k)(1) It is the policy of Congress that no legislation
should be enacted that requires a procurement by an agency
to be made from a specified non-Federal Government source.
‘‘(2) A provision of law may not be construed as re-
quiring a procurement by an agency to be made from a
specified non-Federal Government source unless that provi-
sion of law—
‘‘(A) specifically refers to this subsection;
‘‘(B) specifically identifies the particular non-
Federal Government source from which the procure-
ment is to be made; and
280
in contravention of the policy set forth in paragraph
(1).’’.
SEC. 4152. REPEAL OF OBSOLETE PROVISION.
Section 308 of the Federal Property and Administra-
tive Services Act of 1949 (41 U.S.C. 258) is repealed.
TITLE V—STANDARDS OF
CONDUCT
SEC. 5001. CONTRACTING FUNCTIONS PERFORMED BY FED-
ERAL PERSONNEL.
(a) AMENDMENT OF OFPP ACT.—The Office of Fed-
eral Procurement Policy Act, as amended by section 1091,
is further amended by inserting after section 22 the follow-
ing new section 23:
‘‘SEC. 23. CONTRACTING FUNCTIONS PERFORMED BY FED-
ERAL PERSONNEL.
‘‘(a) LIMITATION ON USE OF CONTRACT ADVISORY
AND ASSISTANCE SERVICES.—The head of an agency may
not provide for an evaluation or analysis of any aspect of
a proposal submitted for an acquisition by that agency to
be conducted by a person who is not an employee of an
executive agency or a member of the Armed Forces unless
the agency head determines that employees or members with
adequate training and capability to perform the evaluation
or analysis are not readily available within the agency or
any other executive agency.
281
‘‘(b) COMPLIANCE WITH FAR STANDARDS.—In the
administration of this section, the head of each executive
agency shall comply with the Federal Acquisition Regula-
tion in determining whether expertise is readily available
and in determining the standards of adequate training and
capability of employees and members of the Armed Forces
to conduct acquisitions.
‘‘(c) DEFINITION.—For purposes of this section, the
term ‘employee’ has the meaning given such term by section
2105 of title 5, United States Code.’’.
(b) REQUIREMENT
FOR GUIDANCE
AND REGULA-
TIONS.—
(1) GUIDANCE AND REGULATIONS REQUIRED.—
The Federal Acquisition Regulatory Council estab-
lished 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 regarding—
(A) what actions Federal agencies are re-
quired to take to determine whether expertise is
readily available within the Federal Government
before contracting for advisory and technical
services to conduct acquisitions; and
(B) the manner in which Federal employees
with expertise may be shared with agencies need-
ing expertise for such acquisitions.
282
(2) DEFINITION.—In paragraph (1), the term
‘‘employee’’ has the meaning given such term by sec-
tion 2105 of title 5, United States Code.
(3) DEADLINE.—The guidance and regulations
required by paragraph (1) shall be provided and pro-
mulgated not later than 180 days after the date of the
enactment of this Act.
SEC. 5002. REPEAL OF EXECUTED REQUIREMENT FOR
STUDY AND REPORT.
Section 17 of the Office of Federal Procurement Policy
Act (41 U.S.C. 415) is repealed.
SEC. 5003. WAITING PERIOD FOR SIGNIFICANT CHANGES
PROPOSED FOR ACQUISITION REGULATIONS.
Section 22 of the Office of Federal Procurement Policy
Act (41 U.S.C. 418b) is amended—
(1) by striking out ‘‘30 days’’ in subsection (a)
and inserting in lieu thereof ‘‘45 days’’; and
(2) by adding at the end of subsection (d) the fol-
lowing new paragraph:
‘‘(3) A policy, regulation, procedure, or form described
in subsection (a) may (notwithstanding that subsection)
take effect earlier than 45 days after the date of publication
thereof in the Federal Register pursuant to subsection (b)
if the officer authorized to issue the procurement policy, reg-
ulation, procedure, or form determines that compelling cir-
283
cumstances make compliance with the 45-day requirement
under subsection (a) impracticable. However, the policy,
regulation, procedure, or form may not take effect earlier
than 30 days after the publication date except as provided
in paragraph (1).’’.
SEC. 5004. REPEAL OF SUPERSEDED AND OBSOLETE LAWS.
(a) REPEAL.—The following sections of title 10, Unit-
ed States Code, are repealed: sections 2207, 2397, 2397a,
2397b, and 2397c.
(b) CLERICAL AMENDMENTS.—
(1) The table of sections at the beginning of
chapter 131 of such title is amended by striking out
the item relating to section 2207.
(2) The table of sections at the beginning of
chapter 141 of such title is amended by striking out
the items relating to sections 2397, 2397a, 2397b, and
2397c.
TITLE VI—DEFENSE TRADE AND
COOPERATION
SEC. 6001. EXCEPTION TO BUY AMERICAN ACT FOR MICRO-
PURCHASES.
Section 2 of title III of the Act of March 3, 1933 (41
U.S.C. 10a), commonly referred to as the ‘‘Buy American
Act’’, is amended by adding at the end the following: ‘‘This
section shall not apply to manufactured articles, materials,
284
or supplies procured under any contract the award value
of which is less than or equal to the micro-purchase thresh-
old under section 4B of the Office of Federal Procurement
Policy Act.’’.
SEC. 6002. POLICY ON PURCHASE OF FOREIGN GOODS.
(a) IN GENERAL.—Section 2533 of title 10, United
States Code, is amended to read as follows:
‘‘§ 2533. Policy on the purchase of foreign goods
‘‘(a) DETERMINATION UNDER BUY AMERICAN ACT.—
In determining whether application of title III of the Act
of March 3, 1933 (41 U.S.C. 10a et seq.), popularly known
as the ‘Buy American Act’, is inconsistent with the public
interest, the Secretary of Defense shall give adequate consid-
eration to the following:
‘‘(1) The bids or proposals of small business
firms in the United States which have offered to fur-
nish American goods.
‘‘(2) The bids or proposals of all other firms in
the United States which have offered to furnish Amer-
ican goods.
‘‘(3) The balance of payments of the United
States.
‘‘(4) The cost of shipping goods which are other
than American goods.
285
‘‘(5) Any duty, tariff, or surcharge which may
enter into the cost of using goods which are other than
American goods.
‘‘(6) Coordination of acquisition activities of the
Department of Defense with obligations contained in
international agreements and with the acquisition ac-
tivities of major United States allies.
‘‘(7) The need to ensure that the Department of
Defense has access to advanced state-of-the-art com-
mercial technology.
‘‘(8) The need to protect the national technology
and industrial base, to preserve and enhance the na-
tional technology employment base, and to provide for
a defense mobilization base.
‘‘(9) The need to maintain the same source of
supply for spare and replacement parts either for an
end item that qualifies as an American good or to
maintain or foster the integration of the military and
commercial industrial base.
‘‘(10) National security interests of the United
States.
‘‘(b) In this section, the term ‘goods which are other
than American goods’ means—
‘‘(1) an end product that is not mined, produced,
or manufactured in the United States; or
286
‘‘(2) an end product that is manufactured in the
United States but which includes components mined,
produced, or manufactured outside the United States
the aggregate cost of which exceeds the aggregate cost
of the components of such end product that are mined,
produced, or manufactured in the United States.’’.
(b) CLERICAL AMENDMENT.—The table of sections at
the beginning of subchapter V of chapter 148 of such title
is amended by striking out the item relating to section 2533
and inserting in lieu thereof the following:
‘‘2533. Policy on purchase of foreign goods.’’.
SEC. 6003. CONSOLIDATION OF LIMITATIONS ON PROCURE-
MENT OF GOODS OTHER THAN AMERICAN
GOODS.
Section 2534 of title 10, United States Code, is amend-
ed—
(1) by striking out subsections (a) through (f);
(2) by redesignating subsection (g), as added by
section 4032, as subsection (d); and
(3) by inserting after the section heading the fol-
lowing:
‘‘(a) LIMITATION ON CERTAIN PROCUREMENTS.—The
Secretary of Defense may procure the following items only
if they are manufactured by an entity that is part of the
national technology and industrial base (as defined in sec-
tion 2491(1) of this title):
287
‘‘(1) BUSES.—Multipassenger motor vehicles
(buses).
‘‘(2) CHEMICAL WEAPONS ANTIDOTE.—Chemical
weapons antidote contained in automatic injectors (or
components for such injectors), but only if the com-
pany that manufactures the item not only manufac-
tures it in the United States but also meets the follow-
ing requirements:
‘‘(A) The company is an existing producer
under the industrial preparedness program at
the time the contract is awarded.
‘‘(B) The company has received all required
regulatory approvals.
‘‘(C) The company has the plant, equip-
ment, and personnel to perform the contract in
existence in the United States at the time the
contract is awarded.
‘‘(3) VALVES AND MACHINE TOOLS.—(A) Items
in the following categories:
‘‘(i) Powered and non-powered valves in
Federal Supply Classes 4810 and 4820 used in
piping for naval surface ships and submarines.
‘‘(ii) Machine tools in the Federal Supply
Classes for metal-working machinery numbered
3405, 3408, 3410 through 3419, 3426, 3433,
288
3438, 3441 through 3443, 3445, 3446, 3448,
3449, 3460, and 3461.
‘‘(B) Contracts for the procurement of items de-
scribed in subparagraph (A) include contracts—
‘‘(i) for the use of such items in any prop-
erty under the control of the Department of De-
fense, including Government-owned, contractor-
operated facilities; and
‘‘(ii) entered into by contractors on behalf of
the Department of Defense for the purposes of
providing such items to other contractors as Gov-
ernment-furnished equipment.
‘‘(C) In any case in which a contract for items
described in subparagraph (A) includes the procure-
ment of more than one Federal Supply Class of ma-
chine tools or machine tools and accessories, each sup-
ply class shall be evaluated separately for purposes of
determining whether the limitation in this subsection
applies.
‘‘(D) This paragraph is effective through fiscal
year 1996.
‘‘(4) AIR CIRCUIT BREAKERS.—Air circuit break-
ers for naval vessels.
‘‘(5) SONOBUOYS.—Sonobuoys.
289
‘‘(6) BALL BEARINGS AND ROLLER BEARINGS.—
Ball bearings and roller bearings, in accordance with
subpart 225.71 of part 225 of the Defense Federal Ac-
quisition Regulation Supplement, as in effect on Oc-
tober 23, 1992. This paragraph is effective through
fiscal year 1995.
‘‘(b) EXCEPTIONS.—The Secretary of Defense may
waive the limitation in subsection (a) with respect to the
procurement of an item listed in that subsection if the Sec-
retary determines that any of the following apply:
‘‘(1) Application of the limitation would cause
unreasonable costs or delays to be incurred.
‘‘(2) United States producers of the item would
not be jeopardized by competition from a foreign
country and that country does not discriminate
against defense items produced in the United States
to a greater degree than the United States discrimi-
nates against defense items produced in that country.
‘‘(3) Application of the limitation would impede
cooperative programs entered into between the De-
partment of Defense and a foreign country and that
country does not discriminate against defense items
produced in the United States to a greater degree
than the United States discriminates against defense
items produced in that country.
290
‘‘(4) Satisfactory quality items manufactured by
an entity that is part of the national technology and
industrial base (as defined in section 2491(1) of this
title) are not available.
‘‘(5) Application of the limitation would result
in the existence of only one source for the item that
is an entity that is part of the national technology
and industrial base (as defined in section 2491(1) of
this title).
‘‘(6) The procurement is for an amount less than
the simplified acquisition threshold and simplified
purchase procedures are being used.
‘‘(7) Application of the limitation is not in the
national security interests of the United States.
‘‘(8) Application of the limitation would ad-
versely affect a United States company.
‘‘(c) PRINCIPLE
OF CONSTRUCTION
WITH FUTURE
LAWS.—A provision of law may not be construed as modi-
fying or superseding the provisions of this section, or as
requiring funds to be limited, or made available, by the Sec-
retary of Defense to a particular domestic source by con-
tract, unless that provision of law—
‘‘(1) specifically refers to this section;
291
‘‘(2) specifically states that such provision of law
modifies or supersedes the provisions of this section;
and
‘‘(3) specifically identifies the particular domes-
tic source involved and states that the contract to be
awarded pursuant to such provision of law is being
awarded in contravention of this section.’’.
SEC. 6004. INTERNATIONAL COOPERATIVE AGREEMENTS.
(a) DEFENSE INTERNATIONAL AGREEMENTS.—
(1) TERMINOLOGY REVISIONS.—Section 2531 of
title 10, United States Code, is amended—
(A) in the subsection captions for sub-
sections (a) and (c), by striking out ‘‘MOUS AND
RELATED’’ and inserting in lieu thereof ‘‘INTER-
NATIONAL’’;
(B) in subsection (a), by striking out ‘‘pro-
posed memorandum of understanding, or any ex-
isting or proposed agreement related to a memo-
randum of understanding,’’ in the matter preced-
ing paragraph (1) and inserting in lieu thereof
‘‘proposed international agreement, including a
memorandum of understanding,’’;
(C) by striking out ‘‘memorandum of under-
standing or related agreement’’ each place it ap-