II 118th CONGRESS 2d Session S. 4066 IN THE SENATE OF THE UNITED STATES March 22, 2024 Mr. Peters (for himself and Mr. Cruz ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To improve Federal technology procurement, and for other purposes.

1. Short title This Act may be cited as the Federal Improvement in Technology Procurement Act or the FIT Procurement Act . 2. Findings Congress makes the following findings: (1) The Government Accountability Office (GAO) has conducted a trend analysis of Government-wide contracting for each of the last several fiscal years. These analyses show that the Federal dollars obligated through contracts has been steadily increasing. (2) Contract spending accounts for more than 80 percent of the Federal information technology budget. (3) Spending on information security, software, cloud computing, data center solutions and services, software as a service, and artificial intelligence technologies is projected to grow significantly. (4) Rapid technological developments and increased Government demand create a need for a Federal acquisition workforce with an understanding of technology and related procurement considerations. (5) Federal agencies are challenged to shorten the procurement cycle to meet agency technology requirements. Technology acquired through procurements that take years from requirements development to implementation may be obsolete by the time it is fielded. (6) While Federal contracting dollars are increasing year over year, and the number of new business applications filed is at an all-time high, the number of Federal contractors receiving contract awards is shrinking. This trend could impair the Federal Government’s access to innovative commercial technologies. 3. Definitions In this Act: (1) Acquisition workforce The term acquisition workforce means employees of an executive agency who are responsible for procurement, contracting, program or project management that involves the performance of acquisition-related functions, or others as designated by the Chief Acquisition Officer, senior procurement executive, or head of the contracting activity. (2) Administrator The term Administrator means the Administrator for Federal Procurement Policy. (3) Cross-functional The term cross-functional means a structure in which individuals with different functional expertise or from different areas of an organization work together as a team. (4) Executive agency The term executive agency has the meaning given the term in section 133 of title 41, United States Code. (5) Experiential learning The term experiential learning means on-the-job experiences or simulations that serve to enhance workforce professional skills. (6) Information and communications technology The term information and communications technology — (A) has the meaning given the term in section 4713 of title 41, United States Code; and (B) includes information and communications technologies covered by definitions contained in the Federal Acquisition Regulation, including definitions added after the date of the enactment of this Act by the Federal Acquisition Regulatory Council pursuant to notice and comment. (7) Relevant committees of Congress The term relevant committees of Congress means the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives. 4. Acquisition workforce (a) Experiential learning Not later than 18 months after the date of the enactment of this Act, the Federal Acquisition Institute shall incorporate experiential learning into the Federal Credentials Program, the Federal Acquisition Certification-Contracting Officer’s Representative (FAC-COR) Program, and the Federal Acquisition Certification for Program and Project Managers (FAC-P/PM) Program, or any successor programs. (b) Training on information and communications technology acquisition (1) In general Not later than 18 months after the date of the enactment of this Act, the Federal Acquisition Institute, in coordination with the Administrator, the Administrator of General Services, the Federal Chief Information Officer, the Chief Information Officers Council, and the United States Digital Service, and in consultation with others as determined to be appropriate by the Director of the Federal Acquisition Institute, shall develop and implement or otherwise provide a cross-functional information and communications technology acquisition training program for acquisition workforce members involved in acquiring information and communications technology. The training shall— (A) include learning objectives related to market research, communicating with industry and industry perspectives on the procurement process, including how investment decisions are impacted by Government communication and engagement, developing requirements, acquisition planning, best practices for developing and executing outcome-based contracts, and source selection strategy, evaluating proposals, and awarding and administering contracts for information and communications technology; (B) include learning objectives that provide a basic understanding of key technologies Federal agencies need, such as cloud computing, artificial intelligence and artificial intelligence-enabled applications, and cybersecurity solutions; (C) include learning objectives that encourage the use of commercial or commercially available off-the-shelf (COTS) technologies to the greatest extent practicable; (D) include case studies of lessons learned from Federal information and communications technology procurements and contracts, and related matters as deemed relevant by the Director of the Federal Acquisition Institute; (E) include experiential learning opportunities, and opportunities to practice acquisition teaming involving collaboration of team members with varied relevant domain expertise to complete acquisition-related tasks, including tasks with accelerated timelines; (F) include continuous learning recommendations and resources to keep the skills of acquisition workforce members current, including tools that help adopt or adapt the use of innovative acquisition practices or other flexible business practices commonly used in commercial buys; (G) be made available to acquisition workforce members designated by a Chief Acquisition Officer, senior procurement executive, or head of the contracting activity to participate in the training program; and (H) inform executive agencies about streamlined and alternative procurement methods for procurement of information and communications technology, including— (i) simplified procedures for certain commercial products and commercial services in accordance with subpart 13.5 of the Federal Acquisition Regulation, prize competitions under the America COMPETES Reauthorization Act of 2010 ( Public Law 111–358 ), commercial solutions opening authorities as provided in section 5 of this Act or under separate authority, competitive programs that encourage businesses to engage in Federal research or research and development with the potential for commercialization, and joint venture partnerships; (ii) innovative procurement techniques designed to streamline the procurement process and lower barriers to entry, such as use of oral presentations and product demonstrations instead of lengthy written proposals, appropriately leveraging performance and outcomes-based contracting, and other techniques discussed on the Periodic Table of Acquisition Innovations or other similar successor knowledge management portals; and (iii) information on appropriate use, examples and templates, and any other information determined relevant by the Administrator to assist contracting officers and other members of the acquisition workforce in using the procedures described in clauses (i) and (ii). (2) Report Not later than 2 years after the date of the enactment of this Act, the Director of the Federal Acquisition Institute shall provide to the relevant committees of Congress, the Chief Acquisition Officers Council, and the Chief Information Officers Council— (A) a report on the Director’s progress in developing and implementing or otherwise providing the information and communications technology acquisition training described in paragraph (1); and (B) a list of any congressionally mandated acquisition training that the Director determines to be outdated or no longer necessary for other reasons. (3) Duration The training program shall be updated as appropriate as technology advances, but at least every 2 years after implementation, and offered for a minimum of 7 years following the date of implementation of the training program. (c) Acquisition Workforce Training Fund (1) Finding Congress finds that the Acquisition Workforce Training Fund should be utilized in order to ensure that the Federal acquisition workforce— (A) continues to adapt to fundamental changes in Federal Government acquisition of property and services; and (B) acquires new skills and knowledge to enable it to contribute effectively in the changing environment of the 21st century. (2) Increased credits to fund Section 1703(i)(3) of title 41, United States Code, is amended by striking Five percent and inserting Seven and a half percent . (d) Harmonization of acquisition workforce training requirements The responsibility for the requirement in subsection (b)(1) of section 2 of the AI Training Act ( Public Law 117–207 ; 41 U.S.C. 1703 note) is reassigned from the Director of the Office of Management and Budget to the Administrator of General Services. 5. Innovative procurement methods (a) Expansion of commercial solutions opening authority Section 880 of the National Defense Authorization Act for Fiscal Year 2017 ( Public Law 114–328 ; 41 U.S.C. 3301 note) is amended— (1) in the section heading, by striking pilot programs for authority to acquire innovative commercial products and inserting programs for authority to acquire innovative commercial products and commercial services ; (2) in subsection (a)— (A) in paragraph (1), by inserting and commercial services after commercial products ; (B) in paragraph (2), by adding at the end the following new subparagraph: (C) The head of an executive agency approved for the program, on a temporary or permanent basis, by the Director of the Office of Management and Budget. ; and (C) in paragraph (3), by adding at the end the following new subparagraph: (C) An executive agency approved for the program by the Director of the Office of Management and Budget. ; (3) by amending subsection (d) to read as follows: (d) Guidance The head of an agency shall issue guidance for the implementation of the program under this section within that agency. Such guidance shall be issued in consultation with the Office of Management and Budget and shall be posted for access by the public. The guidance shall also include requirements for each general solicitation to be posted publicly through a means that provides access to the notice of general solicitation through the System for Award Management or subsequent Government-wide point of entry, with classified solicitations posted to the appropriate Government portal. ; (4) by amending subsection (e) to read as follows: (e) Reporting and data collection The head of an agency shall report information on contracts made using procedures under this section to the Office of Management and Budget as determined by the Director of the Office of Management and Budget. The Administrator for Federal Procurement Policy shall collect and analyze data on the use of the authority under this section for the purposes of— (1) developing and sharing best practices; (2) gathering information on the implementation of the authority and related policy issues; and (3) informing the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives on the use of the authority. ; (5) in subsection (f)— (A) in paragraph (1)(B), by striking ; and and inserting a semicolon; (B) by redesignating paragraph (2) as paragraph (3); and (C) by inserting after paragraph (1) the following new paragraph: (2) the term executive agency has the meaning given the term in section 133 of title 41, United States Code; and ; (6) by striking subsection (g); and (7) by striking pilot each place it appears. (b) Clerical amendment The table of contents in section 2(b) of such Act and the table of contents preceding subtitle A of title VIII of such Act are each amended by striking the item relating to section 880 and inserting the following new item: Sec. 880. Programs for authority to acquire innovative commercial products, commercial technologies, and commercial services using general solicitation competitive procedures. . (c) Increase in simplified acquisition threshold (1) Finding Congress finds that the threshold under which agencies may use simplified acquisition procedures to reduce costs, improve opportunities for qualified businesses, promote efficiency and economy, and avoid unnecessary burdens for agencies and their contractors should be updated. (2) Amendment (A) In general Section 134 of title 41, United States Code, is amended by striking $250,000 and inserting $500,000 . (B) Authority to apply provisions below the threshold The Federal Acquisition Regulatory Council may apply a provision that would not otherwise be applicable below the threshold as amended by subparagraph (A) upon a written determination that it would not be in the best interest of the Federal Government to exempt contracts and subcontracts in amounts not greater than such amended threshold from such provision, such as for national security reasons. (d) Multiple award schedule program competitive procedures (1) Finding Congress finds that the competition standard established by the Administrator of General Services for the multiple award schedule program of the General Services Administration should be updated and made consistent with the competition standard for other procurement methods, such as simplified acquisitions and negotiated procurements. The term best value is defined in the Federal Acquisition Regulation as meaning the expected outcome of an acquisition that, in the Government’s estimation, provides the greatest overall benefit in response to the requirement. (2) Amendments (A) Civilian contracts Section 152(3)(B) of title 41, United States Code, is amended to read as follows: (B) contracts and orders under such program result in the award of best value products and services for the Federal Government; . (B) Defense contracts Section 3012(3)(B) of title 10, United States Code, is amended to read as follows: (B) contracts and orders under such program result in the award of best value products and services for the Federal Government; . (3) Guidance The Federal Acquisition Regulatory Council shall provide guidance to Federal agencies on appropriate use of the best value competition standard for the multiple award schedule program as part of the implementing regulations promulgated in connection with the amendments made by paragraph (2). (e) Advances for commercial technology subscriptions and tenancy (1) Finding Congress finds that the authority to make advance payments should be updated for purposes of enabling the most cost-effective acquisition of cloud computing, data center solutions and services, and other information and communications technology acquired on a subscription, reservation, or tenancy basis. (2) Authority to pay advances Section 3324(d) of title 31, United States Code, is amended— (A) in paragraph (1)(C), by striking ; and and inserting a semicolon; (B) in paragraph (2)— (i) by inserting or commercially available content after publication ; and (ii) by striking the period at the end and inserting ; and ; and (C) by adding at the end the following new paragraph: (3) charges for information and communications technology subscriptions, reservations, or tenancy, which means the sharing of computing resources in a private or public environment, including cloud environments, for which the ordering agency defines appropriate access and security standards. . 6. Increasing competition in Federal contracting (a) Use of past performance Not later than 1 year after the date of the enactment of this Act, the Administrator shall issue guidance, including examples and templates where appropriate, on— (1) when a wider range of projects, such as commercial or non-government, as well as Government projects, should be accepted as relevant past performance, in order to have increased competition among eligible firms with capability to perform a requirement, such as a requirement without much precedent; (2) a means by which an agency may validate non-government past performance references, such as by requiring an official of an entity providing past performance references to attest to their authenticity and by providing verifiable contact information for the references; and (3) use of alternative evaluation methods other than past performance that may be appropriate for a requirement without much precedent, such as demonstrations and testing of technologies as part of the proposal process. (b) Ensuring a capable Federal vendor base (1) Working group Not later than 90 days after the date of the enactment of this Act, the Administrator shall convene a working group or an appropriate existing body (in this section referred to as the working group ), to make recommendations to address the Federal Government’s shrinking vendor base and related matters. (2) Membership The working group convened under paragraph (1) shall be chaired by the Administrator or a designee of the Administrator and include, at a minimum, representatives from the following departments and agencies: (A) The General Services Administration. (B) The Department of Homeland Security. (C) The Department of Commerce. (D) The Department of Defense. (E) The Department of Health and Human Services. (F) The Small Business Administration. (G) Any other agencies or organizations as determined appropriate by the Administrator. (3) Consultation The working group shall obtain input from the public, including from the APEX Accelerators program (formerly known as Procurement Technical Assistance Center (PTAC) network) and other contractor representatives, to identify Federal procurement policies and regulations that are obsolete, overly burdensome or restrictive, not adequately harmonized, or otherwise serve to create barriers to participation in Federal contracting or unnecessarily increase bid and proposal costs. (4) Examination of actions The working group shall consider the input obtained under paragraph (3) and any other information determined to be relevant by the working group to identify legislative, regulatory, and other actions to remove barriers to qualified vendors in the procurement process, in order to build the Federal vendor base, increase competition, and address related matters. (5) Implementation Not later than 2 years after the date of the enactment of this Act, the Administrator shall, in consultation with the Federal Acquisition Regulatory Council, the Chief Acquisition Officers Council, the working group, and other agencies as appropriate, implement the regulatory and other non-legislative actions identified under paragraph (4), as determined necessary by the Administrator, to remove barriers to entry for those seeking to participate in Federal Government procurement. (6) Briefing Not later than 2 years after the date of the enactment of this Act, the Administrator shall brief the relevant committees of Congress on the legislative actions identified under paragraph (4), and the actions implemented under paragraph (5). 7. Incentivizing employee stock ownership plans for business growth (a) Pilot program To use noncompetitive procedures for certain follow-On contracts to qualified businesses wholly-Owned through an Employee Stock Ownership Plan (ESOP) (1) Establishment The Administrator may expand the pilot program authorized by section 874 of the National Defense Authorization Act for Fiscal Year 2022 ( Public Law 117–81 ; 10 U.S.C. 3204 note) for Government-wide use, including by coordinating as necessary with the Federal Acquisition Regulatory Council to make related amendments to the Federal Acquisition Regulation. (2) Follow-on contracts Notwithstanding the requirements of section 3301 of title 41, United States Code, for purposes of carrying out a Government-wide ESOP pilot program established under paragraph (1), the products or services to be procured by an executive agency under a follow-on contract with a qualified business wholly-owned through an ESOP for the continued development, production, or provision of products or services that are the same as or substantially similar to the products or services procured under a prior contract may be procured through procedures other than competitive procedures if the performance of the qualified business on the prior contract was rated as satisfactory (or the equivalent) or better. (3) Limitation A qualified business wholly-owned through an ESOP may have a single opportunity for award of a sole-source follow-on contract under this subsection, unless the senior procurement executive of the executive agency awarding the contract approves a waiver of such limitation. (b) Verification and reporting of qualified businesses wholly-Owned through an employee stock ownership plan Under a pilot program established under this section, the Administrator shall establish procedures— (1) for businesses to verify status as a qualified business wholly-owned through an ESOP for the purposes of this section by using existing Federal reporting mechanisms; (2) for a qualified businesses wholly-owned through an ESOP to certify that not more than 50 percent of the amount paid under the contract will be expended on subcontracts, including similarly situated ESOPs if determined appropriate by the Administrator, subject to such necessary and reasonable waivers as the implementing guidance or regulations may prescribe; and (3) to record and provide to relevant committees of Congress upon request information on each follow-on contract awarded under authority of this subsection, including details relevant to the nature of such contract and the qualified business wholly-owned through an ESOP that received the contract. (c) Sunset A pilot program established under this section shall expire on the date that is 5 years after the date of the enactment of this Act.