I
107TH CONGRESS
2D SESSION
H. R. 4694
To provide for flexibility in making emergency Federal procurements, and
for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MAY 9, 2002
Mr. BURTON of Indiana (for himself and Mr. TOM DAVIS of Virginia) intro-
duced the following bill; which was referred to the Committee on Govern-
ment Reform
A BILL
To provide for flexibility in making emergency Federal
procurements, 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; DEFINITIONS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Federal Emergency Procurement Flexibility Act of
2002’’.
(b) DEFINITIONS.—In this Act:
(1) EXECUTIVE AGENCY.—The term ‘‘executive
agency’’ has the meaning given the term in section
4(1) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(1)).
(2) FISCAL
YEAR
2002
OR
2003
PROCURE-
MENT.—The term ‘‘fiscal year 2002 or 2003 pro-
curement’’ means a procurement for which funds are
obligated during fiscal year 2002 or 2003.
TITLE I—FISCAL YEAR 2002 AND
2003 EMERGENCY PROCURE-
MENTS
SEC. 101. PROCUREMENTS FOR DEFENSE AGAINST, OR RE-
COVERY FROM, TERRORISM OR NUCLEAR, BI-
OLOGICAL, CHEMICAL, OR RADIOLOGICAL
ATTACK.
(a) APPLICABILITY.—The authorities provided in this
title apply to any fiscal year 2002 or 2003 procurement
of property or services by or for an executive agency that,
as determined by the head of the executive agency, are
to be used to facilitate the defense against, or recovery
from, terrorism or nuclear, biological, chemical, or radio-
logical attack.
(b) REQUIREMENT FOR ADVANCE APPROVAL.—The
authorities under sections 102 through 104 of this title
may only be exercised, except in cases of unusual and com-
pelling urgency, with the advance approval of the head of
the applicable executive agency or his designee.
SEC. 102. INCREASED SIMPLIFIED ACQUISITION THRESH-
OLD FOR PROCUREMENTS IN SUPPORT OF
HUMANITARIAN OR PEACEKEEPING OPER-
ATIONS OR CONTINGENCY OPERATIONS.
(a) FISCAL YEAR 2002 AND 2003 THRESHOLD
AMOUNTS.—For a procurement referred to in section 101
that is carried out in support of a humanitarian or peace-
keeping operation or a contingency operation, the sim-
plified acquisition threshold definitions shall be applied as
if the amount determined under the exception provided for
such an operation in those definitions were—
(1) in the case of a contract to be awarded and
performed, or purchase to be made, inside the
United States, $250,000; or
(2) in the case of a contract to be awarded and
performed, or purchase to be made, outside the
United States, $500,000.
(b) SIMPLIFIED ACQUISITION THRESHOLD DEFINI-
TIONS.—In this section, the term ‘‘simplified acquisition
threshold definitions’’ means the following:
(1) Section 4(11) of the Office of Federal Pro-
curement Policy Act (41 U.S.C. 403(11)).
(2) Section 309(d) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C.
259(d)).
(3) Section 2302(7) of title 10, United States
Code.
SEC. 103. INCREASED MICRO-PURCHASE THRESHOLD FOR
CERTAIN PROCUREMENTS.
(a) IN GENERAL.—(1) The head of each agency may
designate certain employees of the agency to make pro-
curements described in section 101 for which in the ad-
ministration of section 32 of the Office of Federal Pro-
curement Policy Act (41 U.S.C. 428) the amount specified
in subsections (c), (d), and (f) of such section 32 shall
be deemed to be $15,000.
(2) The number of employees designated under para-
graph (1) shall be—
(A) fewer than the number of employees of the
agency who are authorized to make purchases with-
out obtaining competitive quotations, pursuant to
section 32(c) of the Office of Federal Procurement
Policy Act (41 U.S.C. 428(c)), unless otherwise au-
thorized by the Director of the Office of Manage-
ment and Budget;
(B) sufficient to ensure the geographic dispersal
of the availability of the use of the procurement au-
thority under such paragraph at locations reasonably
considered to be potential terrorist targets; and
(C) sufficiently limited to allow for the careful
monitoring of employees designated under such
paragraph.
(b) CONFORMING AMENDMENT.—Section 836 of the
National Defense Authorization Act for Fiscal Year 2002
(Public Law 107–107; 10 U.S.C. 2302 note) is repealed.
SEC. 104. APPLICATION OF CERTAIN COMMERCIAL ITEMS
AUTHORITIES TO CERTAIN PROCUREMENTS.
(a) AUTHORITY.—
(1) IN GENERAL.—The head of an executive
agency may apply the provisions of law listed in
paragraph (2) to a procurement referred to in sec-
tion 101 without regard to whether the property or
services are commercial items.
(2) COMMERCIAL ITEM LAWS.—The provisions
of law referred to in paragraph (1) are as follows:
(A) Sections 31 and 34 of the Office of
Federal Procurement Policy Act (41 U.S.C.
427, 430), except that no provision in such sec-
tion 34 or regulation issued to implement such
section shall be construed as exempting con-
tracts awarded under the authority of this sec-
tion from the provisions in section 2306a of title
10, United States Code, or section 304A of the
Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 254b), relating to truth
in negotiations, or section 26 of the Office of
Federal Procurement Policy Act (41 U.S.C.
422), relating to cost accounting standards).
(B) Section 2304(g) of title 10, United
States Code.
(C) Section 303(g) of the Federal Property
and Administrative Services Act of 1949 (41
U.S.C. 253(g)).
(b) INAPPLICABILITY OF LIMITATION ON USE OF
SIMPLIFIED
ACQUISITION
PROCEDURES.—The
$5,000,000 limitation provided in section 31(a)(2) of the
Office of Federal Procurement Policy Act (41 U.S.C.
427(a)(2)), section 2304(g)(1)(B) of title 10, United
States Code, and section 303(g)(1)(B) of the Federal
Property and Administrative Services Act of 1949 (41
U.S.C. 253(g)(1)(B)) shall be deemed to be $10,000,000
for purposes of property or services to which any of the
provisions of law referred to in subsection (a) are applied
under the authority of this section.
(c) CONTINUATION OF AUTHORITY FOR SIMPLIFIED
PURCHASE PROCEDURES.—Authority under a provision of
law referred to in subsection (a)(2) that expires under sec-
tion 4202(e) of the Clinger-Cohen Act of 1996 (divisions
D and E of Public Law 104–106; 10 U.S.C. 2304 note)
shall, notwithstanding such section, continue to apply for
a fiscal year 2002 or 2003 procurement as provided in
subsections (a) and (b).
SEC. 105. USE OF STREAMLINED PROCEDURES.
(a) IN GENERAL.—The head of an executive agency
shall, when appropriate, use streamlined acquisition au-
thorities and procedures authorized by law for a procure-
ment referred to in section 101, including authorities and
procedures that are provided under the following provi-
sions of law:
(1) FEDERAL PROPERTY AND ADMINISTRATIVE
SERVICES ACT OF 1949.—In title III of the Federal
Property and Administrative Services Act of 1949:
(A) Paragraphs (1), (2), (6), and (7) of
subsection (c) of section 303 (41 U.S.C. 253),
relating to use of procedures other than com-
petitive procedures under certain circumstances
(subject to subsection (e) of such section).
(B) Section 303J (41 U.S.C. 253j), relat-
ing to orders under task and delivery order con-
tracts.
(2) TITLE 10, UNITED STATES CODE.—In chap-
ter 137 of title 10, United States Code:
(A) Paragraphs (1), (2), (6), and (7) of
subsection (c) of section 2304, relating to use
of procedures other than competitive procedures
under certain circumstances (subject to sub-
section (e) of such section).
(B) Section 2304c, relating to orders
under task and delivery order contracts.
(3) OFFICE OF FEDERAL PROCUREMENT POL-
ICY ACT.—Paragraphs (1)(B), (1)(D), and (2) of
section 18(c) of the Office of Federal Procurement
Policy Act (41 U.S.C. 416(c)), relating to inapplica-
bility of a requirement for procurement notice.
(b) NON-DISCRIMINATION
AGAINST
SMALL-BUSI-
NESS CONCERNS.—Subsection (a) shall be applied in a
manner that does not discriminate against small-business
concerns (within the meaning of such term as used in the
Small Business Act (15 U.S.C. 632 et seq.)) or any type
of small-business concern.
SEC. 106. OFFICE OF MANAGEMENT AND BUDGET GUID-
ANCE.
(a) IN GENERAL.—The Director of the Office of
Management and Budget shall issue guidance and proce-
dures regarding—
(1) the types of procurements that qualify
under section 101 as facilitating the defense against,
or recovery from, terrorism or nuclear, biological,
chemical, or radiological attack;
(2) the implementation of section 103, includ-
ing the appropriate number of employees that should
be designated under section 103; and
(3) the use of simplified acquisition procedures
for a purchase of property or services under the au-
thority of section 104.
(b) NUMBER
OF DESIGNATED EMPLOYEES.—The
guidance under subsection (a)(1) shall include provisions
that provide the following:
(1) Procurements made under the authority of
section 103 should be subject to review by a des-
ignated supervisor on not less than a monthly basis.
(2) The supervisor responsible for the review
described in paragraph (1) shall be responsible for
no more than 7 employees making procurements
under section 103.
SEC. 107. REVIEW AND REPORT BY COMPTROLLER GEN-
ERAL.
Not later than 180 days after the end of fiscal year
2003, the Comptroller General shall submit to the Com-
mittee on Governmental Affairs of the Senate and the
Committee on Government Reform of the House of Rep-
resentatives a report on the use of the authorities provided
in this title. The report shall contain the following:
(1) An assessment of the extent to which prop-
erty and services acquired using authorities provided
under this title contributed to the capacity of the
Federal workforce to facilitate the defense against,
or recovery from, terrorism or nuclear, biological,
chemical, or radiological attack.
(2) An assessment of the extent to which prices
for property and services acquired using authorities
provided under this title reflected the best value.
(3) The number of employees designated by
each executive agency under section 103.
(4) An assessment of the extent to which the
number of employees designated under section 103
by each executive agency is reasonable and necessary
to achieve the purpose of facilitating the defense
against, or recovery from, terrorism or nuclear, bio-
logical, chemical, or radiological attack.
(5) An assessment of the extent to which execu-
tive agencies have monitored the use of procurement
authority by employees designated under section 103
to prevent fraud and abuse.
(6) Any recommendations of the Comptroller
General for improving the effectiveness of the imple-
mentation of the provisions of this Act, taking into
account the assessment performed under paragraphs
(1), (4), and (5).
TITLE 
II—GOVERNMENTWIDE
TRANSACTION AND PROJECT
AUTHORITY
SEC. 201. AUTHORITY TO ENTER INTO CERTAIN PROCURE-
MENT-RELATED TRANSACTIONS.
(a) AUTHORITY.—Title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251
et seq.) is amended by adding at the end the following
new section:
‘‘SEC. 317. AUTHORITY TO ENTER INTO CERTAIN TRANS-
ACTIONS FOR DEFENSE AGAINST, OR RECOV-
ERY FROM, TERRORISM OR NUCLEAR, BIO-
LOGICAL, CHEMICAL, OR RADIOLOGICAL AT-
TACK.
‘‘(a) AUTHORITY.—
‘‘(1) IN GENERAL.—The head of an executive
agency who engages in basic research, applied re-
search, advanced research, and development projects
that—
‘‘(A) are necessary to the responsibilities of
such official’s executive agency in the field of
research and development, and
‘‘(B) have the potential to facilitate de-
fense against, or recovery from, terrorism or
nuclear, biological, chemical, or radiological at-
tack,
may exercise the same authority (subject to the
same restrictions and conditions) with respect to
such research and projects as the Secretary of De-
fense may exercise under section 2371 of title 10,
United States Code, except for subsections (b), (f),
and (g) of such section.
‘‘(2) APPLICABILITY TO SELECTED EXECUTIVE
AGENCIES.—The head of an executive agency may
exercise authority under this subsection only if au-
thorized by the Director of the Office of Manage-
ment and Budget to do so.
‘‘(b) ANNUAL REPORT.—The annual report of the
head of an executive agency that is required under sub-
section (h) of section 2371 of title 10, United States Code,
as applied to the head of an executive agency by subsection
(a), shall be submitted to the Committee on Governmental
Affairs of the Senate and the Committee on Government
Reform of the House of Representatives.
‘‘(c) REGULATIONS.—The Director of the Office of
Management and Budget shall prescribe regulations to
carry out this section.’’.
(b) CLERICAL AMENDMENT.—The table of sections
in section 1(b) of such Act is amended by inserting after
the item relating to section 316 the following new item:
‘‘Sec. 317. Authority to enter into certain transactions for defense against,
or recovery from, terrorism or nuclear, biological, chem-
ical, or radiological attack.’’.
SEC. 202. TEMPORARY AUTHORITY FOR CARRYING OUT
CERTAIN PROTOTYPE PROJECTS.
(a) IN GENERAL.—The head of an executive agency
designated by the Director of the Office of Management
and Budget to do so may, under the authority of section
317 of the Federal Property and Administrative Services
Act of 1949 (as added by subsection (a)), carry out proto-
type projects that meet the requirements of subparagraphs
(A) and (B) of subsection (a)(1) of such section in accord-
ance with the same requirements and conditions as are
provided for carrying out prototype projects under section
845 of the National Defense Authorization Act for Fiscal
Year 1994 (Public Law 103–160; 10 U.S.C. 2371 note).
(b) CONFORMING AUTHORITY.—In the application of
the requirements and conditions of section 845 of the Na-
tional Defense Authorization Act for Fiscal Year 1994
(Public Law 103–160; 10 U.S.C. 2371 note) to the admin-
istration of authority under subsection (a)—
(1) subsection (c) of such section shall apply
with respect to prototype projects carried out under
this subsection; and
(2) the Director of the Office of Management
and Budget shall perform the function of the Sec-
retary of Defense under subsection (d) of such sec-
tion.
TITLE III—OTHER MATTERS
SEC. 301. IDENTIFICATION OF NEW ENTRANTS INTO THE
FEDERAL MARKETPLACE.
The head of each executive agency shall conduct mar-
ket research on an ongoing basis to identify effectively the
capabilities, including the capabilities of small businesses
and new entrants into Federal contracting, that are avail-
able in the marketplace for meeting the requirements of
the executive agency in furtherance of defense against, or
recovery from, terrorism or nuclear, biological, chemical,
or radiological attack. The head of the executive agency
shall, to the maximum extent practicable, take advantage
of commercially available market research methods, in-
cluding use of commercial databases, to carry out the re-
search.
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