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104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-136
_______________________________________________________________________
PROVIDING FOR THE CONSIDERATION OF H.R. 1530, THE NATIONAL DEFENSE
AUTHORIZATION ACT FOR FISCAL YEAR 1996
_______
June 8, 1995.--Referred to the House Calendar and ordered to be printed
_______________________________________________________________________
Mr. Solomon, from the Committee on Rules, submitted the following
R E P O R T
[To accompany H. Res. 164]
The Committee on Rules, having had under consideration
House Resolution 164, by a record vote of 8 to 4, report the
same to the House with the recommendation that the resolution
be adopted.
brief summary of provisions of resolution
The resolution provides for the consideration of H.R. 1530,
the ``National Defense Authorization Act,'' under a structured
rule. The rule waives all points of order against the bill and
provides two hours of general debate divided equally between
the chairman and ranking minority member of the Committee on
National Security.
The rule makes in order the National Security committee
amendment in the nature of a substitute, as modified by
striking section 807 (recoupment), and by an amendment printed
in part 3 of the report on this rule (dealing with the Elk
Hills Naval Petroleum Reserve), as original text for amendment
purposes. The substitute shall be considered as read. The rule
waives all points of order against the substitute.
Unless otherwise specified in the rule, the rule makes in
order only amendments printed in the Rules Committee report,
certain amendments en bloc, and pro forma amendments offered by
the chairman and ranking minority member of the National
Security Committee. Except as otherwise specified in the rule,
the amendments shall be considered in the order and manner
specified in the report. The rule provides that amendments
printed in Part 2 of the report shall be debatable for 10-
minutes each, equally divided and controlled by the proponent
and opponent. The amendments shall be considered as read and
are not subject to amendment unless otherwise specified in the
report, and are not subject to a demand for a division of the
question in the House or Committee of the Whole. The rule
waives all points of order against the amendments printed in
the report. The rule provides for an extra 30-minutes of
general debate on Cooperative Threat Reduction with the former
Soviet Union (Part 1, subpart A); and, an extra 60-minutes of
general debate on ballistic missile defense (Part 1, subpart
D).
The rule provides that Rep. Clinger may offer a germane
modification to his amendment on acquisition reform with the
concurrence of Rep. Collins of Illinois.
The chairman of the National Security Committee or his
designee is authorized to offer amendments en bloc consisting
of amendments in part 2 of the report or germane modifications
thereto, which shall be considered as read except that
modifications shall be reported, and which shall not be subject
to amendment or a division of the question in the House or
Committee of the Whole, and which shall be debatable for 20-
minutes. The rule waives all points of order against the en
bloc amendments.
The rule authorizes the Chairman of the Committee of the
Whole to postpone consideration of a request for a recorded
vote on any amendment and to reduce to 5-minutes the time for
voting after the first of a series of votes.
The Chairman of the Committee of the Whole is also
authorized to recognize for consideration of any amendment
printed in the report out of the order in which printed but not
sooner than one hour after the chairman of the National
Security Committee or a designee announces from the floor a
request to that effect.
The rule authorizes the chairman of the National Security
Committee to offer an amendment not printed in the report to
reconcile spending levels of bill with the final defense
spending level contained in the conference report on the budget
resolution, which shall be considered as read, shall not be
subject to amendment or to a demand for a division of the
question, and which shall be debatable for 10-minutes equally
divided between the chairman and ranking minority member of the
National Security Committee.
Finally, the rule provides for one motion to recommit, with
or without instructions.
committee votes
Pursuant to clause 2(l)(2)(B) of House rule XI the results
of each rollcall vote on an amendment or motion to report,
together with the names of those voting for and against, are
printed below:
Rules Committee rollcall No. 147
Date: June 8, 1995.
Measure: Rule for the consideration of H.R. 1530, National
Defense Authorization Act.
Motion By: Mr. Moakley.
Summary of Motion: Make in order Schroeder amendment No. 48
providing for a 4 percent across-the-board reduction in the
funding levels in the bill.
Results: Rejected, 4 to 8.
Vote by Member: Quillen--Nay; Dreier--Nay; Goss--Nay;
Linder--Nay; Pryce--Nay; Diaz-Balart--Nay; Waldholtz--Nay;
Moakley--Yea; Beilenson--Yea; Frost--Yea; Hall--Yea; Solomon--
Nay.
Rules Committee rollcall No. 148
Date: June 8, 1995.
Measure: Rule for consideration of H.R. 1530, National
Defense Authorization Act.
Motion By: Mr. Hall.
Summary of Motion: Make in order Evans amendment No. 82 to
restore $282 million for the Department of Energy's
environmental restoration and waste management programs.
Results: Rejected, 4 to 8.
Vote by Member: Quillen--Nay; Dreier--Nay; Goss--Nay;
Linder--Nay; Pryce--Nay; Diaz-Balart--Nay; Waldholtz--Nay;
Moakley--Yea; Beilenson--Yea; Frost--Yea; Hall--Yea; Solomon--
Nay.
Rules Committee rollcall No. 149
Date: June 8, 1995.
Measure: Rule for consideration of H.R. 1530, National
Defense Authorization Act.
Motion By: Mr. Goss.
Summary of Motion: To report the rule.
Results: Adopted, 8 to 4.
Vote by Member: Quillen--Yea; Dreier--Yea; Goss--Yea;
Linder--Yea; Pryce--Yea; Diaz-Balart--Yea; Waldholtz--Yea;
Moakley--Nay; Beilenson--Nay; Frost--Nay; Hall--Nay; Solomon--
Yea.
PART 1
Subpart A: The B-2
1. An Amendment To Be Offered by Representative Kasich of Ohio or a
Designee, Debatable for 60 Minutes
Strike out section 141 (page 21, lines 2 through 15) and
insert in lieu thereof the following:
SEC. 141. LIMITATION ON AIRCRAFT PROCUREMENT FUNDING.
The amount provided in section 103 for procurement of
aircraft for the Air Force is hereby reduced by $553,000,000.
None of the amount appropriated pursuant to authorization of
appropriations in section 103 may be obligated for procurement
of long-lead items for procurement of B-2 aircraft beyond the
20 deployable aircraft and one test aircraft authorized by law
before the date of the enactment of this Act.
----------
Subpart B: Cooperative Threat Reduction With the Former Soviet Union
1. An Amendment To Be Offered by Representative Dornan of California or
a Designee, Debatable for 10 Minutes
At the end of title XI (page 383, after line 9), insert the
following new section:
SEC. 1108. LIMITATION ON COOPERATIVE THREAT REDUCING PROGRAM RELATING
TO OFFENSIVE BIOLOGICAL WEAPONS PROGRAM IN RUSSIA.
None of the funds appropriated pursuant to the
authorization in section 301 for Cooperative Threat Reduction
programs may be obligated or expended for programs or
activities with Russia unless and until the President submits
to Congress a certification in writing that Russia has
terminated its offensive biological weapons program.
----------
2. An Amendment To Be Offered by Representative Hamilton of Indiana or
a Designee, Debatable for 10 Minutes
Strike section 1105.
Redesignate section 1106 and 1107 as sections 1105 and 1106
respectively.
----------
Subpart C: Acquisition Reform
1. An Amendment To Be Offered by Representative Clinger of Pennsylvania
or a Designee, Debatable for 40 Minutes
After the heading for title VIII (page 323, after line 15),
insert the following (and conform the table of contents
accordingly):
Subtitle A--Competition
SEC. 801. IMPROVEMENT OF COMPETITION REQUIREMENTS.
(a) Armed Services Acquisitions.--(1) Section 2304 of title
10, United States Code, is amended to read as follows:
``Sec. 2304. Contracts: competition requirements
``(a) Maximum Practicable Competition.--Except as provided in
subsections (b), (c), and (e) and except in the case of
procurement procedures otherwise expressly authorized by
statute, the head of an agency in conducting a procurement for
property or services--
``(1) shall obtain maximum practicable competition
through the use of competitive procedures consistent
with the need to efficiently fulfill the Government's
requirements in accordance with this chapter and the
Federal Acquisition Regulation; and
``(2) shall use the competitive procedure or
combination of competitive procedures that is best
suited under the circumstances of the procurement.
``(b) Exclusion of Particular Source.--The head of an agency
may provide for the procurement of property or services covered
by this chapter using competitive procedures but excluding a
particular source in order to establish or maintain an
alternative source or sources of supply for that property or
service. The Federal Acquisition Regulation shall set forth the
circumstances under which a particular source may be excluded
pursuant to this subsection.
``(c) Exclusion of Concerns Other Than Small Business
Concerns and Certain Other Entities.--The head of an agency may
provide for the procurement of property or services covered by
this section using competitive procedures, but excluding
concerns other than small business concerns in furtherance of
sections 9 and 15 of the Small Business Act (15 U.S.C. 638,
644) and concerns other than small business concerns,
historically Black colleges and universities, and minority
institutions in furtherance of section 2323 of this title.
``(d) Procedures Other Than Competitive Procedures.--
Procedures other than competitive procedures may be used for
purchasing property and services only when the use of
competitive procedures is not feasible or appropriate. Each
procurement using procedures other than competitive procedures
(other than a procurement for commercial items or a procurement
in an amount not greater than the simplified acquisition
threshold) shall be justified in writing and approved in
accordance with the Federal Acquisition Regulation.
``(e) Simplified Procedures.--(1) In order to promote
efficiency and economy in contracting and to avoid unnecessary
burdens for agencies and contractors, the Federal Acquisition
Regulation shall provide for special simplified procedures for
purchases of property and services for amounts not greater than
the simplified acquisition threshold.
``(2) A proposed purchase or contract for an amount above the
simplified acquisition threshold may not be divided into
several purchases or contracts for lesser amounts in order to
use the simplified procedures required by paragraph (1).
``(3) In using simplified procedures, the head of an agency
shall ensure that competition is obtained to the extent
practicable consistent with the particular Government
requirement.
``(f) Certain Contracts.--For the purposes of the following
laws, purchases or contracts awarded after using procedures
other than sealed-bid procedures shall be treated as if they
were made with sealed-bid procedures:
``(1) The Walsh-Healey Act (41 U.S.C. 35-45).
``(2) The Act entitled `An Act relating to the rate
of wages for laborers and mechanics employed on public
buildings of the United States and the District of
Columbia by contractors and subcontractors, and for
other purposes', approved March 3, 1931 (commonly
referred to as the `Davis-Bacon Act') (40 U.S.C. 276a-
276a-5).''.
(2) Chapter 137 of title 10, United States Code, is amended
by inserting before section 2305 a new section--
(A) the designation and heading for which is as
follows:
``Sec. 2304f. Merit-based selection''; and
(B) the text of which consists of subsection (j) of
section 2304 of such title, as in effect on the day
before the date of the enactment of this Act,
modified--
(i) by striking out the subsection
designation and the subsection heading;
(ii) in paragraphs (2)(A), (3), and (4), by
striking out ``subsection'' and inserting in
lieu thereof ``section'' each place it appears;
(iii) in paragraph (2)(C), by striking out
``paragraph (1)'' and inserting in lieu thereof
``subsection (a)'';
(iv) by redesignating paragraphs (1), (2),
(3), and (4) as subsections (a), (b), (c), and
(d), respectively; and
(v) in subsection (b) (as so redesignated),
by redesignating subparagraphs (A), (B), and
(C) as paragraphs (1), (2), and (3),
respectively.
(3) The table of sections at the beginning of such chapter is
amended by inserting before the item relating section 2305 the
following new item:
``2304f. Merit-based selection.''.
(b) Civilian Agency Acquisitions.--(1) Section 303 of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253) is amended to read as follows:
``SEC. 303. CONTRACTS: COMPETITION REQUIREMENTS.
``(a) Maximum Practicable Competition.--Except as provided in
subsections (b), (c), and (e) and except in the case of
procurement procedures otherwise expressly authorized by
statute, an executive agency in conducting a procurement for
property or services--
``(1) shall obtain maximum practicable competition
through the use of competitive procedures consistent
with the need to efficiently fulfill the Government's
requirements in accordance with this chapter and the
Federal Acquisition Regulation; and
``(2) shall use the competitive procedure or
combination of competitive procedures that is best
suited under the circumstances of the procurement.
``(b) Exclusion of Particular Source.--An executive agency
may provide for the procurement of property or services covered
by this chapter using competitive procedures but excluding a
particular source in order to establish or maintain an
alternative source or sources of supply for that property or
service. The Federal Acquisition Regulation shall set forth the
circumstances under which a particular source may be excluded
pursuant to this subsection.
``(c) Exclusion of Concerns Other Than Small Business
Concerns and Certain Other Entities.--An executive agency may
provide for the procurement of property or services covered by
this section using competitive procedures, but excluding
concerns other than small business concerns in furtherance of
sections 9 and 15 of the Small Business Act (15 U.S.C. 638,
644) and concerns other than small business concerns,
historically Black colleges and universities, and minority
institutions in furtherance of section 7102 of the Federal
Acquisition Streamlining Act of 1994 (15 U.S.C. 644 note).
``(d) Procedures Other Than Competitive Procedures.--
Procedures other than competitive procedures may be used for
purchasing property and services only when the use of
competitive procedures is not feasible or appropriate. Each
procurement using procedures other than competitive procedures
(other than a procurement for commercial items or a procurement
in an amount not greater than the simplified acquisition
threshold) shall be justified in writing and approved in
accordance with the Federal Acquisition Regulation.
``(e) Simplified Procedures.--(1) In order to promote
efficiency and economy in contracting and to avoid unnecessary
burdens for agencies and contractors, the Federal Acquisition
Regulation shall provide for special simplified procedures for
purchases of property and services for amounts not greater than
the simplified acquisition threshold.
``(2)(A) The Administrator of General Services shall
prescribe regulations that provide special simplified
procedures for acquisitions of leasehold interests in real
property at rental rates that do not exceed the simplified
acquisition threshold.
``(B) For purposes of subparagraph (A), the rental rate or
rates under a multiyear lease do not exceed the simplified
acquisition threshold if the average annual amount of the rent
payable for the period of the lease does not exceed the
simplified acquisition threshold.
``(3) A proposed purchase or contract or for an amount above
the simplified acquisition threshold may not be divided into
several purchases or contracts for lesser amounts in order to
use the simplified procedures required by paragraph (1).
``(4) In using simplified procedures, an executive agency
shall ensure that competition is obtained to the extent
practicable consistent with the particular Government
requirement.''.
(2) Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.) is amended by
inserting after section 303L a new section--
(A) the designation and heading for which is as
follows:
``SEC. 303M. MERIT-BASED SELECTION.''; and
(B) the text of which consists of subsection (h) of
section 303 of such Act, as in effect on the day before
the date of the enactment of this Act, modified--
(i) by striking out the subsection
designation and the subsection heading;
(ii) in paragraphs (2)(A), (3), and (4), by
striking out ``subsection'' and inserting in
lieu thereof ``section'' each place it appears;
(iii) in paragraph (2)(C), by striking out
``paragraph (1)'' and inserting in lieu thereof
``subsection (a)'';
(iv) by redesignating paragraphs (1), (2),
(3), and (4) as subsections (a), (b), (c), and
(d), respectively; and
(v) in subsection (b) (as so redesignated),
by redesignating subparagraphs (A), (B), and
(C) as paragraphs (1), (2), and (3),
respectively.
(3) The table of contents for the Federal Property and
Administrative Services Act of 1949 (contained in section 1(b))
is amended--
(A) by striking out the item relating to section 303
and inserting in lieu thereof the following:
``Sec. 303. Contracts: competition requirements.''; and
(B) by inserting after the item relating to section
303L the following new item:
``Sec. 303M. Merit-based selection.''.
(c) Revisions to Procurement Notice Provisions.--Section 18
of the Office of Federal Procurement Policy Act (41 U.S.C. 416)
is amended in subsection (b)(4)--
(1) by striking out ``all''; and
(2) by striking out ``(as appropriate) which shall be
considered by the agency''.
(d) Repeal of Duplicative Provisions.--Section 8 of the Small
Business Act (15 U.S.C. 637) is amended--
(1) by striking out subsections (e), (f), (g), (h),
and (i); and
(2) by redesignating subsection (j) as subsection
(e).
(e) Executive Agency Responsibilities.--(1) Section 16 of the
Office of Federal Procurement Policy Act (41 U.S.C. 414) is
amended--
(A) by striking out ``achieve'' in the matter
preceding paragraph (1) and inserting in lieu thereof
``promote''; and
(B) by amending paragraph (1) to read as follows:
``(1) to implement maximum practicable competition in
the procurement of property or services by the
executive agency by establishing policies, procedures,
and practices that are consistent with the need to
efficiently fulfill the Government's requirements;''.
(2) Section 20 of such Act (41 U.S.C. 418) is amended in
subsection (a)(2)(A) by striking out ``serving in a position
authorized for such executive agency on the date of enactment
of the Competition in Contracting Act of 1984''.
SEC. 802. DEFINITION RELATING TO COMPETITION REQUIREMENTS.
(a) Definition.--Paragraph (6) of section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403) is amended to
read as follows:
``(6) The term `maximum practicable competition',
when used with respect to a procurement, means that the
maximum number of responsible or verified sources,
consistent with the particular Government requirement,
are permitted to submit sealed bids or competitive
proposals on the procurement.''.
(b) Conforming Amendments.--
(1) Office of federal procurement policy act.--The
Office of Federal Procurement Policy Act is further
amended--
(A) in section 4(5), by striking out ``full
and open'' and inserting ``maximum
practicable''; and
(B) in section 20, by striking out ``full and
open'' and inserting in lieu thereof ``maximum
practicable'' each place it appears in
subsection (b)(1), subsection (b)(3)(A),
subsection (b)(4)(C), and subsection (c);
(2) Title 10.--Title 10, United States Code, is
amended--
(A) in section 2302(2), by striking out
``pursuant to full and open competition'' and
inserting in lieu thereof ``using maximum
practicable competition'';
(B) in section 2323(e)(3), by striking out
``less than full and open'' and inserting in
lieu thereof ``procedures other than''; and
(C) in each of the following sections, by
striking out ``full and open'' and inserting in
lieu thereof ``maximum practicable'':
(i) Section 2302(3).
(ii) Section 2305(a)(1)(A)(i).
(iii) Section 2305(a)(1)(A)(iii).
(iv) Section 2323(i)(3)(A).
(3) Federal property and administrative services
act.--Title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.) is amended--
(A) in section 309(b), by striking out
``pursuant to full and open competition'' and
inserting in lieu thereof ``using maximum
practicable competition''; and
(B) in each of the following sections, by
striking out ``full and open'' and inserting in
lieu thereof ``maximum practicable'':
(i) Section 303A(a)(1)(A).
(ii) Section 303A(a)(1)(C).
(iii) Section 304B(a)(2)(B).
(iv) Section 309(c)(4).
(4) Other laws.--(A) Section 7102 of the Federal
Acquisition Streamlining Act of 1994 (108 Stat. 3367;
15 U.S.C. 644 note) is amended in subsection (a)(1)(A)
by striking out ``less than full and open competition''
and inserting in lieu thereof ``procedures other than
competitive procedures''.
(B) Section 15(l) of the Small Business Act (15
U.S.C. 644(l)) is amended in paragraph (1) and in
paragraph (2)(A) by striking out ``full and open'' and
inserting in lieu thereof ``maximum practicable'' each
place it appears.
SEC. 803. CONTRACT SOLICITATION AMENDMENTS.
(a) Armed Services Acquisitions.--Section 2305 of title 10,
United States Code, is amended--
(1) in subsection (a)(1)--
(A) by striking out subparagraph (B); and
(B) by redesignating subparagraph (C) as
subparagraph (B) and in that subparagraph by
striking out ``subparagraphs (A) and (B)'' and
inserting in lieu thereof ``subparagraph (A)'';
and
(2) in subsection (b)(4)(A)(i), by striking out
``all'' and inserting in lieu thereof ``the''.
(b) Civilian Agency Acquisitions.--(1) Section 303A of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253a) is amended--
(A) by striking out paragraph (2); and
(B) by redesignating paragraph (3) as paragraph (2)
and in that paragraph by striking out ``paragraphs (1)
and (2)'' and inserting in lieu there of ``paragraph
(1)''.
(2) Section 303B(d)(1)(A) of such Act (41 U.S.C. 253b) is
amended by striking out ``all'' and inserting in lieu thereof
``the''.
SEC. 804. PREAWARD DEBRIEFINGS.
(a) Armed Services Acquisitions.--Section 2305(b) of title
10, United States Code, is amended--
(1) by striking out subparagraph (F) of paragraph
(5);
(2) by redesignating paragraph (6) as paragraph (8);
and
(3) by inserting after paragraph (5) the following
new paragraphs:
``(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 three days after the date on
which the excluded offeror receives notice of its
exclusion, a debriefing prior to award. The contracting
officer shall make every effort to debrief the
unsuccessful offeror as soon as practicable and may
refuse the request for a debriefing if it is not in the
best interests of the Government to conduct a
debriefing at that time.
``(B) The contracting officer is required to debrief
an excluded offeror in accordance with paragraph (5) of
this section only if that offeror requested and was
refused a preaward debriefing under subparagraph (A) of
this paragraph.
``(C) The debriefing conducted under this subsection
shall include--
``(i) the executive agency's evaluation of
the significant elements in the offeror's
offer;
``(ii) a summary of the rationale for the
offeror's exclusion; 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.
``(7) The contracting officer shall include a summary of any
debriefing conducted under paragraph (5) or (6) in the contract
file.''.
(b) Civilian Agency Acquisitions.--Section 303B of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253b) is amended--
(1) by striking out paragraph (6) of subsection (e);
(2) by redesignating subsections (f), (g), (h), and
(i) as subsections (h), (i), (j), and (k),
respectively; and
(3) by inserting after subsection (e) the following
new subsections:
``(f)(1) 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 exclusion, a debriefing prior to award. The contracting
officer shall make every effort to debrief the unsuccessful
offeror as soon as practicable and may refuse the request for a
debriefing if it is not in the best interests of the Government
to conduct a debriefing at that time.
``(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 subsection.
``(3) The debriefing conducted under this subsection shall
include--
``(A) the executive agency's evaluation of the
significant elements in the offeror's offer;
``(B) a summary of the rationale for the offeror's
exclusion; and
``(C) 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.
``(4) 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.
``(g) The contracting officer shall include a summary of the
any debriefing conducted under subsection (e) or (f) in the
contract file.''.
SEC. 805. CONTRACT TYPES.
(a) Armed Services Acquisitions.--(1) Section 2306 of title
10, United States Code, is amended--
(A) by inserting before the period at the end of
subsection (a) the following: ``, based on market
conditions, established commercial practice (if any)
for the product or service being acquired, and sound
business judgment'';
(B) by striking out subsections (b), (d), (e), (f),
and (h); and
(C) by redesignating subsection (g) as subsection
(b).
(2) The heading of such section is amended to read as
follows:
``Sec. 2306. Contract types''.
(b) Civilian Agency Acquisitions.--(1) Section 304 of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 254) is amended--
(A) by inserting before the period at the end of the
first sentence of subsection (a) the following: ``,
based on market conditions, established commercial
practice (if any) for the product or service being
acquired, and sound business judgment''; and
(B) by striking out ``Every contract award'' in the
second sentence of subsection (a) and all that follows
through the end of the section.
(2) The heading of such section is amended to read as
follows:
``SEC. 304. CONTRACT TYPES.''.
(c) Conforming Repeals.--(1) Sections 4540, 7212, and 9540 of
title 10, United States Code, are repealed.
(2) The table of sections at the beginning of chapter 433 of
such title is amended by striking out the item relating to
section 4540.
(3) The table of sections at the beginning of chapter 631 of
such title is amended by striking out the item relating to
section 7212.
(4) The table of sections at the beginning of chapter 933 of
such title is amended by striking out the item relating to
section 9540.
(d) Civil Works Authority.--(1) Chapter 137 of title 10,
United States Code, is amended by adding at the end the
following new section:
``Sec. 2332. Contracts for architectural and engineering services and
construction design
``The Secretary of Defense and the Secretaries of the
military departments may enter into contracts for architectural
and engineering services in connection with a military
construction or family housing project or for other Department
of Defense or military department purposes. Such contracts
shall be awarded in accordance with the Brooks Architect-
Engineers Act (40 U.S.C. 541 et seq.).''.
(2) The table of sections at the beginning of chapter 137 of
such title is amended by adding at the end the following new
item:
``2332. Contracts for architectural and engineering services and
construction design.''.
(3) Section 2855 of such title is repealed. The table of
sections at the beginning of chapter 169 of such title is
amended by striking out the item relating to such section.
SEC. 806. CONTRACTOR PERFORMANCE.
(a) Requirement for System.--The Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.) is amended by
adding at the end the following new section:
``SEC. 35. CONTRACTOR PERFORMANCE.
``(a) Verification Authorized.--The Federal Acquisition
Regulation shall provide a contractor verification system for
the procurement of particular property or services that are
procured by executive agencies on a repetitive basis. Under the
system, the head of an executive agency--
``(1) shall use competitive procedures to verify
contractors as eligible for contracts to furnish such
property or services; and
``(2) shall award verifications on the basis of the
relative efficiency and effectiveness of the business
practices, level of quality, and demonstrated contract
performance of the responding contractors with regard
to the particular property or services.
``(b) Procurement From Verified Contractors.--The Federal
Acquisition Regulation shall provide procedures under which the
head of an executive agency may enter into a contract for a
procurement of property or services referred to in subsection
(a) on the basis of a competition among contractors verified
with respect to such property or services pursuant to that
subsection.
``(c) Termination of Verification.--The Federal Acquisition
Regulation shall provide procedures under which the head of an
executive agency--
``(1) may provide for the termination of a
verification awarded a contractor under this section
upon the expiration of a period specified by the head
of an executive agency; and
``(2) may revoke a verification awarded a contractor
under this section upon a determination that the
quality of performance of the contractor does not meet
standards applied by the head of the executive agency
as of the time of the revocation decision.''.
(b) Repeals.--Section 2319 of title 10, United States Code,
is repealed. Section 303C of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253c) is
repealed.
(c) Clerical Amendments.--(1) The table of contents for the
Office of Federal Procurement Policy Act (contained in section
1(b)) is amended by adding at the end the following new item:
``Sec. 35. Contractor performance.''.
(2) The table of sections at the beginning of chapter 137 of
title 10, United States Code, is amended by striking out the
item relating to section 2319.
(3) The table of contents for the Federal Property and
Administrative Services Act of 1949 (contained in section 1(b))
is amended by striking out the item relating to section 303C.
Subtitle B--Commercial Items
SEC. 811. COMMERCIAL ITEM EXCEPTION TO REQUIREMENT FOR COST OR PRICING
DATA AND INFORMATION LIMITATIONS.
(a) Armed Services Acquisitions.--(1) Subsections (b), (c),
and (d) of section 2306a of title 10, United States Code, are
amended to read as follows:
``(b) Exceptions.--
``(1) In general.--Submission of cost or pricing data
shall not be required under subsection (a) in the case
of a contract, a subcontract, or modification of a
contract or subcontract--
``(A) for which the price agreed upon is
based on--
``(i) adequate price competition; or
``(ii) prices set by law or
regulation;
``(B) for the acquisition of a commercial
item; or
``(C) in an exceptional case when the head of
the procuring activity, without delegation,
determines that the requirements of this
section may be waived and justifies in writing
the reasons for such determination.
``(2) Modifications of contracts and subcontracts for
commercial items.--In the case of a modification of a
contract or subcontract for a commercial item that is
not covered by the exception on the submission of cost
or pricing data in paragraph (1)(A) or (1)(B),
submission of cost or pricing data shall not be
required under subsection (a) if--
``(A) the contract or subcontract being
modified is a contract or subcontract for which
submission of cost or pricing data may not be
required by reason of paragraph (1)(A) or
(1)(B); and
``(B) the modification would not change the
contract or subcontract, as the case may be,
from a contract or subcontract for the
acquisition of a commercial item to a contract
or subcontract for the acquisition of an item
other than a commercial item.
``(c) Authority To Require Cost or Pricing Data on Below-
Threshold Contracts.--(1) Subject to paragraph (2), when
certified cost or pricing data are not required to be submitted
by subsection (a) for a contract, subcontract, or modification
of a contract or subcontract, such data may nevertheless be
required to be submitted by the head of the procuring activity,
but only if the head of the procuring activity determines that
such data are necessary for the evaluation by the agency of the
reasonableness of the price of the contract, subcontract, or
modification of a contract or subcontract. In any case in which
the head of the procuring activity requires such data to be
submitted under this subsection, the head of the procuring
activity shall justify in writing the reason for such
requirement.
``(2) The head of the procuring activity may not require
certified cost or pricing data to be submitted under this
paragraph for any contract or subcontract, or modification of a
contract or subcontract, covered by the exceptions in
subparagraph (A) or (B) of subsection (b)(1).
``(3) The head of a procuring activity may not delegate
functions under this paragraph.
``(d) Limitations on Other Information.--The Federal
Acquisition Regulation shall include the following:
``(1) Provisions concerning the types of information
that contracting officers may consider in determining
whether the price of a procurement to the Government is
fair and reasonable when certified cost or pricing data
are not required to be submitted under this section,
including appropriate information on the prices at
which the same item or similar items have previously
been sold that is adequate for evaluating the
reasonableness of the price of the proposed contract or
subcontract for the procurement.
``(2) Reasonable limitations on requests for sales
data relating to commercial items.
``(3) A requirement that a contracting officer shall,
to the maximum extent practicable, limit the scope of
any request for information relating to commercial
items from an offeror to only that information that is
in the form regularly maintained by the offeror in
commercial operations.
``(4) A statement that any information received
relating to commercial items that is exempt from
disclosure under section 552(b) of title 5 shall not be
disclosed by the Federal Government.''.
(2) Section 2306a of such title is further amended--
(A) by striking out subsection (h); and
(B) by redesignating subsection (i) as subsection
(h).
(3) Section 2375 of title 10, United States Code, is amended
by striking out subsection (c).
(b) Civilian Agency Acquisitions.--(1) Subsections (b), (c)
and (d) of section 304A of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 254b) are
amended to read as follows:
``(b) Exceptions.--
``(1) In general.--Submission of cost or pricing data
shall not be required under subsection (a) in the case
of a contract, a subcontract, or a modification of a
contract or subcontract--
``(A) for which the price agreed upon is
based on--
``(i) adequate price competition; or
``(ii) prices set by law or
regulation;
``(B) for the acquisition of a commercial
item; or
``(C) in an exceptional case when the head of
the procuring activity, without delegation,
determines that the requirements of this
section may be waived and justifies in writing
the reasons for such determination.
``(2) Modifications of contracts and subcontracts for
commercial items.--In the case of a modification of a
contract or subcontract for a commercial item that is
not covered by the exception on the submission of cost
or pricing data in paragraph (1)(A) or (1)(B),
submission of cost or pricing data shall not be
required under subsection (a) if--
``(A) the contract or subcontract being
modified is a contract or subcontract for which
submission of cost or pricing data may not be
required by reason of paragraph (1)(A) or
(1)(B); and
``(B) the modification would not change the
contract or subcontract, as the case may be,
from a contract or subcontract for the
acquisition of a commercial item to a contract
or subcontract for the acquisition of an item
other than a commercial item.
``(c) Authority To Require Cost or Pricing Data on Below-
Threshold Contracts.--(1) Subject to paragraph (2), when
certified cost or pricing data are not required to be submitted
by subsection (a) for a contract, subcontract, or modification
of a contract or subcontract, such data may nevertheless be
required to be submitted by the head of the procuring activity,
but only if the head of the procuring activity determines that
such data are necessary for the evaluation by the agency of the
reasonableness of the price of the contract, subcontract, or
modification of a contract or subcontract. In any case in which
the head of the procuring activity requires such data to be
submitted under this subsection, the head of the procuring
activity shall justify in writing the reason for such
requirement.
``(2) The head of the procuring activity may not require
certified cost or pricing data to be submitted under this
paragraph for any contract or subcontract, or modification of a
contract or subcontract, covered by the exceptions in
subparagraph (A) or (B) of subsection (b)(1).
``(3) The head of a procuring activity may not delegate the
functions under this paragraph.
``(d) Limitations on Other Information.--The Federal
Acquisition Regulation shall include the following:
``(1) Provisions concerning the types of information
that contracting officers may consider in determining
whether the price of a procurement to the Government is
fair and reasonable when certified cost or pricing data
are not required to be submitted under this section,
including appropriate information on the prices at
which the same item or similar items have previously
been sold that is adequate for evaluating the
reasonableness of the price of the proposed contract or
subcontract for the procurement.
``(2) Reasonable limitations on requests for sales
data relating to commercial items.
``(3) A requirement that a contracting officer shall,
to the maximum extent practicable, limit the scope of
any request for information relating to commercial
items from an offeror to only that information that is
in the form regularly maintained by the offeror in
commercial operations.
``(4) A statement that any information received
relating to commercial items that is exempt from
disclosure under section 552(b) of title 5 shall not be
disclosed by the Federal Government.''.
(2) Section 304A of such Act is further amended--
(A) by striking out subsection (h); and
(B) by redesignating subsection (i) as subsection
(h).
SEC. 812. APPLICATION OF SIMPLIFIED PROCEDURES TO COMMERCIAL ITEMS.
(a) Armed Services Acquisitions.--Section 2304(e)(1) of title
10, United States Code, as added by section 801(a), is amended
by inserting after ``special simplified procedures'' the
following: ``for purchases of commercial items and''.
(b) Civilian Agency Acquisitions.--Section 303(e)(1) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253), as added by section 801(b), is amended by
inserting after ``special simplified procedures'' the
following: ``for purchases of commercial items and''.
(c) Simplified Notice.--Section 18 of the Office of Federal
Procurement Policy Act (41 U.S.C. 416) is amended in subsection
(a)(5) (as redesignated by section 801(d))--
(1) by striking out ``limited''; and
(2) by inserting before ``submission'' the following:
``issuance of solicitations and the''.
SEC. 813. AMENDMENT TO DEFINITION OF COMMERCIAL ITEMS.
Section 4(12)(F) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(12)(F)) is amended by striking out
``catalog''.
SEC. 814. INAPPLICABILITY OF COST ACCOUNTING STANDARDS TO CONTRACTS AND
SUBCONTRACTS FOR COMMERCIAL ITEMS.
Subparagraph (B) of section 26(f)(2) of the Office of Federal
Procurement Policy Act (41 U.S.C. 422(f)(2)) is amended--
(1) by striking out clause (i) and inserting in lieu
thereof the following:
``(i) Contracts or subcontracts for the acquisition
of commercial items.''; and
(2) by striking out clause (iii).
Subtitle C--Additional Reform Provisions
Redesignate sections 801, 802, 803, 804, 805, 806, 807, and
808 as sections 821, 822, 823, 824, 825, 826, 827, and 828,
respectively (and conform the table of contents accordingly).
Add at the end of title VIII (page 329, after line 13) the
following (and conform the table of contents accordingly):
SEC. 829. GOVERNMENT RELIANCE ON THE PRIVATE SECTOR.
(a) Government Reliance on the Private Sector.--The Office of
Federal Procurement Policy Act (41 U.S.C. 401 et seq.) is
amended by inserting after section 16 the following new
section:
``SEC. 17. GOVERNMENT RELIANCE ON THE PRIVATE SECTOR.
``It is the policy of the Federal Government to rely on the
private sector to supply the products and services the Federal
Government needs.''.
(b) Clerical Amendment.--The table of contents for the Office
of Federal Procurement Policy Act (contained in section 1(b))
is amended by inserting after the item relating to section 16
the following new item:
``Sec. 17. Government reliance on the private sector.''.
SEC. 830. ELIMINATION OF CERTAIN CERTIFICATION REQUIREMENTS.
(a) Elimination of Certain Statutory Certification
Requirements.--(1)(A) Section 2410 of title 10, United States
Code, is amended--
(i) in the heading, by striking out ``:
certification''; and
(ii) in subsection (a)--
(I) in the heading, by striking out
``Certification'';
(II) by striking out ``unless'' and all that
follows through ``that--'' and inserting in
lieu thereof ``unless--''; and
(III) in paragraph (2), by striking out ``to
the best of that person's knowledge and
belief''.
(B) The item relating to section 2410 in the table of
sections at the beginning of chapter 141 of such title is
amended to read as follows:
``Sec. 2410. Requests for equitable adjustment or other relief.''.
(2) Section 2410b of title 10, United States Code, is amended
in paragraph (2) by striking out ``certification and''.
(3) Section 1352(b)(2) of title 31, United States Code, is
amended--
(A) by striking out subparagraph (C); and
(B) by inserting ``and'' after the semicolon at the
end of subparagraph (A).
(4) Section 5152 of the Drug-Free Workplace Act of 1988 (41
U.S.C. 701) is amended--
(A) in subsection (a)(1), by striking out ``has
certified to the contracting agency that it will'' and
inserting in lieu thereof ``agrees to'';
(B) in subsection (a)(2), by striking out ``contract
includes a certification by the individual'' and
inserting in lieu thereof ``individual agrees''; and
(C) in subsection (b)(1)--
(i) by striking out subparagraph (A);
(ii) by redesignating subparagraph (B) as
subparagraph (A) and in that subparagraph by
striking out ``such certification by failing to
carry out''; and
(iii) by redesignating subparagraph (C) as
subparagraph (B).
(b) Elimination of Certain Regulatory Certification
Requirements.--
(1) Current certification requirements.--Not later
than 210 days after the date of the enactment of this
Act, any certification required of contractors or
offerors by the Federal Acquisition Regulation or an
executive agency procurement regulation that is not
specifically imposed by statute shall be removed by the
Administrator for Federal Procurement Policy from the
Federal Acquisition Regulation or such agency
regulation unless--
(A) written justification for such
certification is provided to the Administrator
(i) by the Federal Acquisition Regulatory
Council (in the case of a certification in the
Federal Acquisition Regulation), or (ii) by the
head of an executive agency (in the case of a
certification in an executive agency
procurement regulation); and
(B) the Administrator approves in writing the
retention of such certification.
(2) Future certification requirements.--(A) Section
29 of the Office of Federal Procurement Policy Act (41
U.S.C. 425) is amended--
(i) by amending the heading to read as
follows:
``SEC. 22. CONTRACT CLAUSES AND CERTIFICATIONS.'';
(ii) by inserting ``(a) Nonstandard Contract
Clauses.--'' before ``The Federal
Acquisition''; and
(iii) by adding at the end the following new
subsection:
``(b) Prohibition on Certification Requirements.--A
requirement for a certification by a contractor or offeror may
not be included in the Federal Acquisition Regulation or an
executive agency procurement regulation unless--
``(1) the certification is specifically imposed by
statute; or
``(2) written justification for such certification is
provided to the Administrator for Federal Procurement
Policy (A) by the Federal Acquisition Regulatory
Council (in the case of a certification in the Federal
Acquisition Regulation), or (B) the head of an
executive agency (in the case of a certification in an
executive agency procurement regulation), and the
Administrator approves in writing the inclusion of such
certification.''.
(B) The item relating to section 29 in the table of contents
for the Office of Federal Procurement Policy Act (contained in
section 1(b)) (41 U.S.C. 401 note) is amended to read as
follows:
``Sec. 29. Contract clauses and certifications.''.
SEC. 831. AMENDMENT TO COMMENCEMENT AND EXPIRATION OF AUTHORITY TO
CONDUCT CERTAIN TESTS OF PROCUREMENT PROCEDURES.
Subsection (j) of section 5061 of the Federal Acquisition
Streamlining Act of 1994 (41 U.S.C. 413 note) is amended to
read as follows:
``(j) Commencement and Expiration of Authority.--The
authority to conduct a test under subsection (a) in an agency
and to award contracts under such a test shall take effect on
August 1, 1995, and shall expire on August 1, 2000. Contracts
entered into before such authority expires in an agency
pursuant to a test shall remain in effect, notwithstanding the
expiration of the authority to conduct the test under this
section.''.
SEC. 832. PROCUREMENT INTEGRITY.
(a) Amendment of Procurement Integrity Provision.--Section 27
of the Office of Federal Procurement Policy Act (41 U.S.C. 423)
is amended to read as follows:
``SEC. 27. RESTRICTIONS ON DISCLOSING AND OBTAINING CONTRACTOR BID OR
PROPOSAL INFORMATION OR SOURCE SELECTION
INFORMATION.
``(a) Prohibition on Disclosing Procurement Information.--(1)
A person described in paragraph (2) shall not, other than as
provided by law, knowingly and willfully disclose contractor
bid or proposal information or source selection information
before the award of a Federal agency procurement contract to
which the information relates.
``(2) Paragraph (1) applies to any person who--
``(A) is 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 United States with respect to, a Federal
agency procurement; and
``(B) by virtue of that office, employment, or
relationship has or had access to contractor bid or
proposal information or source selection information.
``(b) Prohibition on Obtaining Procurement Information.--A
person shall not, other than as provided by law, knowingly and
willfully obtain contractor bid or proposal information or
source selection information before the award of a Federal
agency procurement contract to which the information relates.
``(c) Prohibition on Disclosing or Obtaining Procurement
Information in Connection With a Protest.--(1) A person shall
not, other than as provided by law, knowingly and willfully
violate the terms of a protective order described in paragraph
(2) by disclosing or obtaining contractor bid or proposal
information or source selection information related to the
procurement contract concerned.
``(2) Paragraph (1) applies to any protective order issued by
the the United States Board of Contract Appeals in connection
with a protest against the award or proposed award of a Federal
agency procurement contract.
``(d) Penalties and Administrative Actions.--
``(1) Criminal penalties.--
``(A) Whoever engages in conduct constituting
an offense under subsection (a), (b), or (c)
shall be imprisoned for not more than one year
or fined as provided under title 18, United
States Code, or both.
``(B) Whoever engages in conduct constituting
an offense under subsection (a), (b), or (c)
for the purpose of either--
``(i) exchanging the information
covered by such subsection for anything
of value, or
``(ii) obtaining or giving anyone a
competitive advantage in the award of a
Federal agency procurement contract,
shall be imprisoned for not more than five
years or fined as provided under title 18,
United States Code, or both.
``(2) Civil penalties.--The Attorney General may
bring a civil action in the appropriate United States
district court against any person who engages in
conduct constituting an offense under subsection (a),
(b), or (c). Upon proof of such conduct by a
preponderance of the evidence, the person is subject to
a civil penalty. An individual who engages in such
conduct is subject to a civil penalty of not more than
$50,000 for each violation plus twice the amount of
compensation which the individual received or offered
for the prohibited conduct. An organization that
engages in such conduct is subject to a civil penalty
of not more than $500,000 for each violation plus twice
the amount of compensation which the organization
received or offered for the prohibited conduct.
``(3) Administrative actions.--(A) If a Federal
agency 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 taking one or more of the following
actions, as appropriate:
``(i) Cancellation of the Federal agency
procurement, if a contract has not yet been
awarded.
``(ii) Rescission of a contract with respect
to which--
``(I) the contractor or someone
acting for the contractor has been
convicted for an offense under
subsection (a), (b), or (c), or
``(II) the head of the agency that
awarded the contract has determined,
based upon clear and convincing
evidence, that the contractor or
someone acting for the contractor has
engaged in conduct constituting such an
offense.
``(iii) Initiation of suspension or debarment
proceedings for the protection of the
Government in accordance with procedures in the
Federal Acquisition Regulation.
``(iv) Initiation of adverse personnel
action, pursuant to the procedures in chapter
75 of title 5, United States Code, or other
applicable law or regulation.
``(B) If a Federal agency rescinds a contract
pursuant to subparagraph (A)(ii), the United States is
entitled to recover, in addition to any penalty
prescribed by law, the amount expended under the
contract.
``(C) For purposes of any suspension or debarment
proceedings initiated pursuant to subparagraph
(A)(iii), engaging in conduct constituting an offense
under subsection (a), (b), or (c) affects the present
responsibility of a Government contractor or
subcontractor.
``(e) Definitions.--As used in this section:
``(1) The term `contractor bid or proposal
information' means any of 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 procurement contract, if that
information has not been previously made available to
the public or disclosed publicly:
``(A) Cost or pricing data (as defined by
section 2306a(h) of title 10, United States
Code, with respect to procurements subject to
that section, and section 304A(h) of Federal
Property and Administrative Services Act of
1949 (41 U.S.C. 254b(h), with respect to
procurements subject to that section).
``(B) Indirect costs and direct labor rates.
``(C) Proprietary information about
manufacturing processes, operations, or
techniques marked by the contractor in
accordance with applicable law or regulation.
``(D) Information marked by the contractor as
`contractor bid or proposal information', in
accordance with applicable law or regulation.
``(2) The term `source selection information' means
any of 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 procurement
contract, if that information has not been previously
made available to the public or disclosed publicly:
``(A) Bid prices submitted in response to a
Federal agency solicitation for sealed bids, or
lists of those bid prices before public bid
opening.
``(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 proposals.
``(G) Competitive range determinations that
identify proposals that have a reasonable
chance of being selected for award of a
contract.
``(H) Rankings of bids, proposals, or
competitors.
``(I) The reports and evaluations of source
selection panels, boards, or advisory councils.
``(J) Other information marked as `source
selection information' based on a case-by-case
determination by the head of the agency, his
designee, or the contracting officer that its
disclosure would jeopardize the integrity or
successful completion of the Federal agency
procurement to which the information relates.
``(3) The term `Federal agency' has the meaning
provided such term in section 3 of the Federal Property
and Administrative Services Act of 1949 (40 U.S.C.
472).
``(4) The term `Federal agency procurement' means the
acquisition (by using competitive procedures and
awarding a contract) of goods or services (including
construction) from non-Federal sources by a Federal
agency using appropriated funds.
``(5) The term `contracting officer' means a person
who, by appointment in accordance with applicable
regulations, has the authority to enter into a Federal
agency procurement contract on behalf of the Government
and to make determinations and findings with respect to
such a contract.
``(6) The term `protest' means a written objection by
an interested party to the award or proposed award of a
Federal agency procurement contract, pursuant to title
IV of the Federal Acquisition Reform Act of 1995.
``(f) Limitation on Protests.--No person may file a protest
against the award or proposed award of a Federal agency
procurement contract alleging an offense under subsection (a),
(b), or (c), of this section, nor may the United States Board
of Contract Appeals consider such an allegation in deciding a
protest, unless that person reported to the Federal agency
responsible for the procurement information that the person
believed constituted evidence of the offense no later than 14
days after the person first discovered the possible offense.
``(g) Savings Provisions.--This section does not--
``(1) restrict the disclosure of information to, or
its receipt by, any person or class of persons
authorized, in accordance with applicable agency
regulations 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
information relating to a Federal agency procurement
after it has been canceled by the Federal agency before
contract award unless the Federal agency plans to
resume the procurement;
``(4) authorize the withholding of information from,
nor restrict its receipt by, Congress, a committee or
subcommittee of Congress, 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, any board of contract
appeals of a Federal agency or the Comptroller General
in the course of a protest against the award or
proposed award of a Federal agency procurement
contract; or
``(6) limit the applicability of any requirements,
sanctions, contract penalties, and remedies established
under any other law or regulation.''.
(b) Repeals.--The following provisions of law are repealed:
(1) Sections 2397, 2397a, 2397b, and 2397c of title
10, United States Code.
(2) Section 33 of the Federal Energy Administration
Act of 1974 (15 U.S.C. 789).
(3) Section 281 of title 18, United States Code.
(4) Subsection (c) of section 32 of the Office of
Federal Procurement Policy Act (41 U.S.C. 428).
(5) The first section 19 of the Federal Nonnuclear
Energy Research and Development Act of 1974 (42 U.S.C.
5918).
(c) Clerical Amendments.--
(1) The table of sections at the beginning of chapter
141 of title 10, United States Code, is amended by
striking out the items relating to sections 2397,
2397a, 2397b, and 2397c.
(2) The table of sections at the beginning of chapter
15 of title 18, United States Code, is amended by
striking out the item relating to section 281.
(3) Section 32 of the Office of Federal Procurement
Policy Act (41 U.S.C. 428) is amended by redesignating
subsections (d), (e), (f), and (g) as subsections (c),
(d), (e), and (f), respectively.
SEC. 833. FURTHER ACQUISITION STREAMLINING PROVISIONS.
(a) Purpose of Office of Federal Procurement Policy.--(1)
Section 5(a) of the Office of Federal Procurement Policy Act
(41 U.S.C. 404) is amended to read as follows:
``(a) To promote economy, efficiency, and effectiveness in
the procurement of property and services by the executive
branch of the Federal Government, there shall be an Office of
Federal Procurement Policy (hereinafter referred to as the
`Office') in the Office of Management and Budget to provide
overall direction of Government-wide procurement policies,
regulations, procedures, and forms for executive agencies.''.
(2) Sections 2 and 3 of such Act (41 U.S.C. 401 and 402) are
repealed.
(b) Repeal of Report Requirement.--Section 8 of the Office of
Federal Procurement Policy Act (41 U.S.C. 407) is repealed.
(c) Repeal of Obsolete Provisions.--(1) Sections 10 and 11 of
the Office of Federal Procurement Policy Act (41 U.S.C. 409 and
410) are repealed.
(d) Clerical Amendments.--The table of contents for the
Office of Federal Procurement Policy Act (contained in section
1(b)) is amended by striking out the items relating to sections
2, 3, 8, 10, and 11.
SEC. 834. JUSTIFICATION OF MAJOR DEFENSE ACQUISITION PROGRAMS NOT
MEETING GOALS.
Section 2220(b) of title 10, United States Code, is amended
by adding at the end the following: ``In addition, the
Secretary shall include in such annual report a justification
for the continuation of any program that--
``(1) is more than 50 percent over the cost goal
established for the development, procurement, or
operational phase of the program;
``(2) fails to achieve at least 50 percent of the
performance capability goals established for the
development, procurement, or operational phase of the
program; or
``(3) is more than 50 percent behind schedule, as
determined in accordance with the schedule goal
established for the development, procurement, or
operational phase of the program.''.
SEC. 835. ENHANCED PERFORMANCE INCENTIVES FOR ACQUISITION WORKFORCE.
(a) Armed Services Acquisitions.--Subsection (b) of section
5001 of the Federal Acquisition Streamlining Act of 1994
(Public Law 103-355; 108 Stat. 3350; 10 U.S.C. 2220 note) is
amended--
(1) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively;
(2) by designating the second sentence as paragraph
(2);
(3) by inserting ``(1)'' after ``(b) Enhanced System
of Performance Incentives.--''; and
(4) by adding at the end the following:
``(3) The Secretary shall include in the enhanced system of
incentives the following:
``(A) Pay bands.
``(B) Significant and material pay and promotion
incentives to be awarded, and significant and material
unfavorable personnel actions to be imposed, under the
system exclusively, or primarily, on the basis of the
contributions of personnel to the performance of the
acquisition program in relation to cost goals,
performance goals, and schedule goals.
``(C) Provisions for pay incentives and promotion
incentives to be awarded under the system.''.
(b) Civilian Agency Acquisitions.--Subsection (c) of section
5051 of the Federal Acquisition Streamlining Act of 1994
(Public Law 103-355; 108 Stat. 3351; 41 U.S.C. 263 note) is
amended--
(1) by redesignating subparagraphs (A) and (B) of
paragraph (2) as clauses (i) and (ii); respectively;
(2) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B), respectively;
(3) by inserting ``(1)'' after ``(c) Enhanced System
of Performance Incentives.--''; and
(4) by adding at the end the following:
``(2) The Deputy Director shall include in the enhanced
system of incentives under paragraph (1)(B) the following:
``(A) Pay bands.
``(B) Significant and material pay and promotion
incentives to be awarded, and significant and material
unfavorable personnel actions to be imposed, under the
system exclusively, or primarily, on the basis of the
contributions of personnel to the performance of the
acquisition program in relation to cost goals,
performance goals, and schedule goals.
``(C) Provisions for pay incentives and promotion
incentives to be awarded under the system.''.
SEC. 836. RESULTS ORIENTED ACQUISITION PROGRAM CYCLE.
Section 5002(a) of the Federal Acquisition Streamlining Act
of 1994 (Public Law 103-355; 108 Stat. 3350) is amended--
(1) by inserting ``(1)'' before ``to ensure''; and
(2) by striking out the period at the end and inserting in
lieu thereof the following: ``; (2) to ensure that the
regulations compress the time periods associated with
developing, procuring, and making operational new systems; and
(3) to ensure that Department of Defense directives relating to
development and procurement of information systems (numbered in
the 8000 series) and the Department of Defense directives
numbered in the 5000 series are consolidated into one series of
directives that is consistent with such compressed time
periods.''.
SEC. 837. RAPID CONTRACTING GOAL.
(a) Goal.--The Office of Federal Procurement Policy Act is
amended by adding at the end the following new section:
``SEC. 35. RAPID CONTRACTING GOAL.
``The Administrator for Federal Procurement Policy shall
establish a goal of reducing by 50 percent the time necessary
for executive agencies to acquire an item for the user of that
item.''.
(b) Clerical Amendment.--The table of contents for such Act,
contained in section 1(b), is amended by adding at the end the
following new item:
``Sec. 35. Rapid contracting goal.''.
SEC. 838. ENCOURAGEMENT OF MULTIYEAR CONTRACTING.
(a) Armed Services Acquisitions.--Section 2306b(a) of title
10, United States Code, is amended in the matter preceding
paragraph (1) by striking out ``may'' and inserting in lieu
thereof ``shall, to the maximum extent possible,''.
(b) Civilian Agency Acquisitions.--Section 304B(a) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 254c(a)) is amended in the matter preceding paragraph
(1) by striking out ``may'' and inserting in lieu thereof
``shall, to the maximum extent possible,''.
SEC. 839. CONTRACTOR SHARE OF GAINS AND LOSSES FROM COST, SCHEDULE, AND
PERFORMANCE EXPERIENCE.
(a) Armed Services Acquisitions.--(1) Chapter 137 of title
10, United States Code, is amended by inserting after section
2306b the following new section:
``Sec. 2306c. Contractor share of gains and losses from cost, schedule,
and performance experience
``The Federal Acquisition Regulation shall contain provisions
to ensure that, for any cost-type contract or incentive-type
contract, the contractor may be rewarded for contract
performance exceeding the contract cost, schedule, or
performance parameters to the benefit of the United States and
may be penalized for failing to adhere to cost, schedule, or
performance parameters to the detriment of the United
States.''.
(2) The table of sections at the beginning of such chapter is
amended by inserting after the item relating to section 2306b
the following new item:
``2306c. Contractor share of gains and losses from cost, schedule, and
performance experience.''.
(b) Civilian Agency Acquisitions.--(1) Title III of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 251 et seq.) is amended by inserting after section 304C
the following new section:
``SEC. 304D. CONTRACTOR SHARE OF GAINS AND LOSSES FROM COST, SCHEDULE,
AND PERFORMANCE EXPERIENCE.
``The Federal Acquisition Regulation shall contain provisions
to ensure that, for any cost-type contract or incentive-type
contract, the contractor may be rewarded for contract
performance exceeding the contract cost, schedule, or
performance parameters to the benefit of the United States and
may be penalized for failing to adhere to cost, schedule, or
performance parameters to the detriment of the United
States.''.
(2) The table of contents for such Act, contained in section
1(b), is amended by inserting after the item relating to
section 304C the following new item:
``Sec. 304D. Contractor share of gains and losses from cost, schedule,
and performance experience.''.
SEC. 840. PHASE FUNDING OF DEFENSE ACQUISITION PROGRAMS.
Chapter 131 of title 10, United States Code, is amended by
adding at the end the following new section:
``Sec. 2221. Funding for results oriented acquisition program cycle
``Before initial funding is made available for the
development, procurement, or operational phase of an
acquisition program for which an authorization of
appropriations is required by section 114 of this title, the
Secretary of Defense shall submit to Congress information about
the objectives and plans for the conduct of that phase and the
funding requirements for the entire phase. The information
shall identify the intended user of the system to be acquired
under the program and shall include objective, quantifiable
criteria for assessing the extent to which the objectives and
goals determined pursuant to section 2435 of this title are
achieved.''.
(2) The table of sections at the beginning of such chapter is
amended by adding at the end the following new item:
``2221. Funding for results oriented acquisition program cycle.''.
SEC. 841. IMPROVED DEPARTMENT OF DEFENSE CONTRACT PAYMENT PROCEDURES.
(a) Review and Improvement of Procedures.--The Comptroller
General of the United States shall review commercial practices
regarding accounts payable and, considering the results of the
review, develop standards for the Secretary of Defense to
consider using for improving the contract payment procedures
and financial management systems of the Department of Defense.
(b) GAO Report.--Not later than September 30, 1996, the
Comptroller General shall submit to Congress a report
containing the following matters:
(1) The weaknesses in the financial management
processes of the Department of Defense.
(2) Deviations of the Department of Defense payment
procedures and financial management systems from the
standards developed pursuant to subsection (a),
expressed quantitatively.
(3) The officials of the Department of Defense who
are responsible for resolving the deviations.
SEC. 842. CONSIDERATION OF PAST PERFORMANCE IN ASSIGNMENT TO
ACQUISITION POSITIONS.
(a) Requirement.--Section 1701(a) of title 10, United
States Code, is amended by adding at the end the following:
``The policies and procedures shall provide that education and
training in acquisition matters, and past performance of
acquisition responsibilities, are major factors in the
selection of personnel for assignment to acquisition positions
in the Department of Defense.''.
(b) Performance Requirements for Assignment.--(1) Section
1723(a) of title 10, United States Code, is amended by
inserting ``, including requirements relating to demonstrated
past performance of acquisition duties,'' in the first sentence
after ``experience requirements''.
(2) Section 1724(a)(2) of such title is amended by
inserting before the semicolon at the end the following: ``and
have demonstrated proficiency in the performance of acquisition
duties in the contracting position or positions previously
held''.
(3) Section 1735 of such title is amended--
(A) in subsection (b)--
(i) by striking out ``and'' at the end of
paragraph (2);
(ii) by striking out the period at the end of
paragraph (3) and inserting in lieu thereof ``;
and''; and
(iii) by adding at the end the following:
``(4) must have demonstrated proficiency in the
performance of acquisition duties.'';
(B) in subsection (c)--
(i) by striking out ``and'' at the end of
paragraph (2);
(ii) by striking out the period at the end of
paragraph (3) and inserting in lieu thereof ``;
and''; and
(iii) by adding at the end the following:
``(4) must have demonstrated proficiency in the
performance of acquisition duties.'';
(C) in subsection (d), by inserting before the period
at the end the following: ``, and have demonstrated
proficiency in the performance of acquisition duties'';
and
(D) in subsection (e), by inserting before the period
at the end the following: ``, and have demonstrated
proficiency in the performance of acquisition duties''.
Subtitle D--Streamlining of Dispute Resolution
PART I--GENERAL PROVISIONS
SEC. 850. DEFINITIONS.
In this subtitle:
(1) The term ``Board'' means the United States Board
of Contract Appeals.
(2) The term ``Board judge'' means a member of the
United States Board of Contract Appeals.
(3) The term ``Chairman'' means the Chairman of the
United States Board of Contract Appeals.
(4) The term ``executive agency'' has the meaning
given by section 2(2) of the Contract Disputes Act of
1978 (41 U.S.C. 601(2)).
(5) The term ``alternative means of dispute
resolution'' has the meaning given by section 571(3) of
title 5, United States Code.
(6) The term ``protest'' means a written objection by
an interested party to any of the following:
(A) A solicitation or other request by an
executive agency for offers for a contract for
the procurement of property or services.
(B) The cancellation of such a solicitation
or other request.
(C) An award or proposed award of such a
contract.
(D) A termination or cancellation of an award
of such a contract, if the written objection
contains an allegation that the termination or
cancellation is based in whole or in part on
improprieties concerning the award of the
contract.
(7) The term ``interested party'', with respect to a
contract or a solicitation or other request for offers,
means an actual or prospective bidder or offeror whose
direct economic interest would be affected by the award
of the contract or by failure to award the contract.
(8) The term ``prevailing party'', with respect to a
determination of the Board under section 864(b) that a
decision of a contracting officer violates a statute or
regulation, means a party that demonstrated such
violation.
PART II--ESTABLISHMENT OF THE UNITED STATES BOARD OF CONTRACT APPEALS
SEC. 851. ESTABLISHMENT.
There is established in the executive branch of the
Government an independent establishment to be known as the
United States Board of Contract Appeals.
SEC. 852. MEMBERSHIP.
(a) Appointment.--(1) The Board shall consist of Board
judges appointed by the Chairman, without regard to political
affiliation and solely on the basis of the professional
qualifications required to perform the duties and
responsibilities of a Board judge, from a register of
applicants maintained by the Board.
(2) The members of the Board shall be selected and
appointed to serve in the same manner as administrative law
judges appointed pursuant to section 3105 of title 5, United
States Code, with an additional requirement that such members
shall have had not fewer than five years' experience in public
contract law.
(3) Notwithstanding paragraph (2) and subject to subsection
(b), the following persons shall serve as Board judges:
(A) Any full-time member of an agency board of
contract appeals serving as such on the day before the
effective date of this subtitle.
(B) Any person serving on the day before the date of
the enactment of this Act in a position at a level of
assistant general counsel or higher with authority
delegated from the Comptroller General to decide bid
protests under subchapter V of chapter 35 of title 31,
United States Code.
(b) Removal.--Members of the Board shall be subject to
removal in the same manner as administrative law judges, as
provided in section 7521 of title 5, United States Code.
(c) Compensation.--Compensation for the Chairman and all
other members of the Board shall be determined under section
5273a of title 5, United States Code.
SEC. 853. CHAIRMAN.
(a) Designation.--(1) The Chairman shall be designated by
the President to serve for a term of five years. The President
shall select the Chairman from among sitting Board judges each
of whom has had at least five years of service--
(A) as a member of an agency board of contract
appeals; or
(B) in a position at a level of assistant general
counsel or higher with authority delegated from the
Comptroller General to decide bid protests under
subchapter V of chapter 35 of title 31, United States
Code (as in effect on the day before the effective date
of this subtitle).
(2) A Chairman may continue to serve after the expiration
of the Chairman's term until a successor has taken office. A
Chairman may be reappointed any number of times.
(b) Responsibilities.--The Chairman shall be responsible on
behalf of the Board for the executive and administrative
operation of the Board, including functions of the Board with
respect to the following:
(1) The selection, appointment, and fixing of the
compensation of such personnel, pursuant to part III of
title 5, United States Code, as the Chairman considers
necessary or appropriate, including a Clerk of the
Board, a General Counsel, and clerical and legal
assistance for Board judges.
(2) The supervision of personnel employed by or
assigned to the Board, and the distribution of work
among such personnel.
(3) The response to any request that may be made by
Congress or the Office of Management and Budget.
(4) The allocation of funds among the various
functions of the Board.
(5) The entering into and performance of such
contracts, leases, cooperative agreements, or other
similar transactions with public agencies and private
organizations and persons, and the making of such
payments, as the Chairman considers necessary or
appropriate to carry out functions vested in the Board.
(6) The operation of an Office of the Clerk of the
Board, including the receipt of all filings made with
the Board, the assignment of cases, and the maintenance
of all records of the Board.
(7) The acquisition, operation, and maintenance of
such automatic data processing resources as may be
needed by the Board.
(8) The prescription of such rules and regulations as
the Chairman considers necessary or appropriate for the
administration and management of the Board.
(c) Vice Chairmen.--The Chairman may designate up to four
other Board judges as Vice Chairmen. The Chairman may divide
the Board into two or more divisions, and, if such division is
made, shall assign a Vice Chairman to head each division. The
Vice Chairmen, in the order designated by the Chairman, shall
act in the place and stead of the Chairman during the absence
of the Chairman.
SEC. 854. RULEMAKING AUTHORITY.
(a) In General.--The Board may establish--
(1) such procedural rules and regulations as are
necessary to the exercise of its functions, including
internal rules for the assignment of cases; and
(2) statements of policy of general applicability
with respect to its functions.
(b) Prohibition on Review by Other Agency or Person.--Rules
and regulations established by the Board (including forms which
are a part thereof) shall not be subject to review by any other
agency or person (including the Administrator of Information
and Regulatory Affairs, pursuant to chapter 35 of title 44,
United States Code) in advance of publication.
SEC. 855. LITIGATION AUTHORITY.
Except as provided in section 518 of title 28, United
States Code, relating to litigation before the Supreme Court,
attorneys designated by the Chairman may appear for, and
represent the Board in, any civil action brought in connection
with any function carried out by the Board.
SEC. 856. SEAL OF BOARD.
The Chairman shall cause a seal of office to be made for
the Board of such design as the Board shall approve. Judicial
notice shall be taken of such seal.
SEC. 857. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for fiscal year
1997 and each succeeding fiscal year such sums as may be
necessary to carry out the provisions of this subtitle and to
enable the Board to perform its functions. Funds appropriate
pursuant to this section shall remain available until expended.
PART III--FUNCTIONS OF UNITED STATES BOARD OF CONTRACT APPEALS
SEC. 861. ALTERNATIVE DISPUTE RESOLUTION SERVICES.
(a) Requirement To Provide Services Upon Request.--The
Board shall provide alternative means of dispute resolution for
any disagreement regarding a contract or prospective contract
of an executive agency upon the request of all parties to the
disagreement.
(b) Personnel Qualified To Act.--Each Board judge and each
attorney employed by the Board shall be considered to be
qualified to act for the purpose of conducting alternative
means of dispute resolution under this section.
(c) Services To Be Provided Without Charge.--Any services
provided by the Board or any Board judge or employee pursuant
to this section shall be provided without charge.
(d) Recusal of Certain Personnel Upon Request.--In the
event that a matter which is presented to the Board for
alternative means of dispute resolution, pursuant to this
section, later becomes the subject of formal proceedings before
the Board, any Board judge or employee who was involved in the
alternative means shall, if requested by any party to the
formal proceeding, take no part in that proceeding.
SEC. 862. ALTERNATIVE DISPUTE RESOLUTION OF DISPUTES AND PROTESTS
SUBMITTED TO BOARD.
With reasonable promptness after the submission to the Board
of a contract dispute under section 863 or a bid protest under
section 864, a Board judge to whom the contract dispute or
protest is assigned shall request the parties to meet with a
Board judge, or an attorney employed by the Board, for the
purpose of attempting to resolve the dispute or protest through
alternative means of dispute resolution. Formal proceedings in
the appeal shall then be suspended until such time as any party
or a Board judge to whom the dispute or protest is assigned
determines that alternative means of dispute resolution are not
appropriate for resolution of the dispute or protest.
SEC. 863. CONTRACT DISPUTES.
The Board shall have jurisdiction as provided by section 8(a)
of the Contract Disputes Act of 1978 (41 U.S.C. 601-613).
SEC. 864. PROTESTS.
(a) Review Required Upon Request.--Upon request of an
interested party in connection with any procurement conducted
by any executive agency, the Board shall review, as provided in
this section, any decision by a contracting officer alleged to
violate a statute or regulation. The authority of the Board to
conduct such review shall include the authority to review
regulations to determine their consistency with applicable
statutes. A decision or order of the Board pursuant to this
section shall not be subject to interlocutory appeal or review.
(b) Standard of Review.--In deciding a protest, the Board may
consider all evidence that is relevant to the decision under
protest. It shall accord a presumption of correctness to all
facts found and determinations made by the contracting officer
whose decision is being protested. The protester may rebut this
presumption by showing, by a preponderance of the evidence,
that a finding or determination was incorrect. The Board may
find that a decision by a contracting officer violates a
statute or regulation for any of the reasons stated in section
706(2) of title 5, United States Code.
(c) Determination of Whether to Suspend Authority To Conduct
Procurement in Protest Filed Before Contract Award.--(1) When a
protest under this section is filed before the award of a
contract in a protested procurement, the Board, at the request
of an interested party and within 10 days after the submission
of the protest, shall hold a hearing to determine whether the
Board should suspend the authority of the executive agency
involved (or its head) to conduct such procurement until the
Board can decide the protest.
(2) The Board shall suspend the authority of the executive
agency (or its head) unless the agency concerned establishes
that--
(A) absent action by the Board, contract award is
likely to occur within 30 days after the hearing; and
(B) urgent and compelling circumstances which
significantly affect interests of the United States
will not permit waiting for the decision of the Board.
(3) A suspension under paragraph (2) shall not preclude the
executive agency concerned from continuing the procurement
process up to but not including award of the contract unless
the Board determines such action is not in the best interests
of the United States.
(d) Determination of Whether to Suspend Authority To Conduct
Procurement in Protest Filed After Contract Award.--(1) If,
with respect to an award of a contract, the Board receives
notice of a protest under this section within the period
described in paragraph (2), the Board shall, at the request of
an interested party, hold a hearing to determine whether the
Board should suspend the authority of the executive agency
involved (or its head) to conduct such procurement until the
Board can decide the protest.
(2) The period referred to in paragraph (1) is the period
beginning on the date on which the contract is awarded and
ending at the end of the later of--
(A) the tenth day after the date of contract award;
or
(B) the fifth day after the debriefing date offered
to an unsuccessful offeror for any debriefing that is
requested and, when requested, is required.
(3) The Board shall hold the requested hearing within 5 days
after the date of the filing of the protest or, in the case of
a request for debriefing, within 5 days after the later of the
date of the filing of the protest or the date of the
debriefing.
(4) The Board shall suspend the procurement authority of the
executive agency involved (or its head) to acquire any goods or
services under the contract which are not previously delivered
and accepted unless such agency establishes that urgent and
compelling circumstances which significantly affect interests
of the United States will not permit waiting for the decision
of the Board.
(e) Procedures.--
(1) Proceedings and discovery.--The Board shall
conduct proceedings and allow such discovery as may be
required for the expeditious, fair, and reasonable
resolution of the protest. The Board shall limit
discovery to material which is relevant to the grounds
of protest or to such affirmative defenses as the
executive agency involved, or any intervenor supporting
the agency, may raise.
(2) Priority.--The Board shall give priority to
protests filed under this section over contract
disputes and alternative dispute services. Except as
provided in paragraph (3), the Board shall issue its
final decision within 65 days after the date of the
filing of the protest, unless the Chairman determines
that the specific and unique circumstances of the
protest require a longer period, in which case the
Board shall issue such decision within the longer
period determined by the Chairman. An amendment that
adds a new ground of protest should be resolved, to the
maximum extent practicable, within the time limits
established for resolution of the initial protest.
(3) Threshold.--Any protest in which the anticipated
value of the contract award that will result from the
protested procurement, as estimated by the executive
agency involved, is less than $1,000,000 shall be
considered under simplified rules of procedure. These
rules shall provide that discovery in such protests
shall be in writing only. Such protests shall be
decided by a single Board judge, whose decision shall
be final and conclusive and shall not be set aside
except in cases of fraud. The Board shall issue its
final decision in each such protest within 35 days
after the date of the filing of the protest.
(4) Calculation of time for adr.--In calculating time
for purposes of paragraph (2) or (3) of this
subsection, any days during which proceedings are
suspended for the purpose of attempting to resolve the
protest by alternative means of dispute resolution, up
to a maximum of 20 days, shall not be counted.
(5) Dismissal of frivolous protests.--The Board may
dismiss a protest that the Board determines is
frivolous or which, on its face, does not state a valid
basis for protest.
(6) Payment of costs for frivolous protests.--(A) If
the Board expressly finds that a protest or a portion
of a protest is frivolous or does not state on its face
a valid basis for protest, the Board shall declare that
the protester or other interested party who joins the
protest is liable to the United States for payment of
the costs described in subparagraph (B) unless--
(i) special circumstances would make such
payment unjust; or
(ii) the protester obtains documents or other
information after the protest is filed with the
Board that establishes that the protest or a
portion of the protest is frivolous or does not
state on its face a valid basis for protest,
and the protester then promptly withdraws the
protest or portion of the protest.
(B) The costs referred to in subparagraph (A) are all
of the costs incurred by the United States of reviewing
the protest, or of reviewing that portion of the
protest for which the finding is made, including the
fees and other expenses (as defined in section
2412(d)(2)(A) of title 28, United States Code) incurred
by the United States in defending the protest.
(f) Decisions and Corrective Actions on Protests.--(1) In
making a decision on protests filed under this section, the
Board shall accord due weight to the goals of economic and
efficient procurement, and shall take due account of the rule
of prejudicial error.
(2) If the Board determines that a decision of a
contracting officer violates a statute or regulation, the Board
may order the agency (or its head) to take such corrective
action as the Board considers appropriate. Corrective action
includes requiring that the Federal agency--
(A) refrain from exercising any of its options under
the contract;
(B) recompete the contract immediately;
(C) issue a new solicitation;
(D) terminate the contract;
(E) award a contract consistent with the requirements
of such statute and regulation;
(F) implement any combination of requirements under
subparagraphs (A), (B), (C), (D), and (E); or
(G) implement such other actions as the Board
determines necessary.
(3) If the Board orders corrective action after the
contract award, the affected contract shall be presumed valid
as to all goods or services delivered and accepted under the
contract before the corrective action was ordered.
(4) Any agreement that provides for the dismissal of a
protest and involves a direct or indirect expenditure of
appropriated funds shall be submitted to the Board and shall be
made a part of the public record (subject to any protective
order considered appropriate by the Board) before dismissal of
the protest.
(g) Authority To Declare Entitlement to Costs.--(1)(A)
Whenever the Board determines that a decision of a contracting
officer violates a statute or regulation, it may, in accordance
with section 1304 of title 31, United States Code, further
declare an appropriate prevailing party to be entitled to the
costs of--
(i) filing and pursuing the protest, including
reasonable attorneys' fees and consultant and expert
witness fees, and
(ii) bid and proposal preparation.
(B) No party (other than a small business concern (within
the meaning of section 3(a) of the Small Business Act)) may be
declared entitled under this paragraph to costs for--
(i) consultants and expert witness fees that exceed
the highest rate of compensation for expert witnesses
paid by the Federal Government, or
(ii) attorneys' fees that exceed $150 per hour unless
the Board, on a case by case basis, determines that an
increase in the cost of living or a special factor,
such as the limited availability of qualified attorneys
for the proceedings involved, justifies a higher fee.
(2) Payment of amounts due from an agency under paragraph
(1) or under the terms of a settlement agreement under
subsection (e)(4) shall be made from the appropriation made by
section 1304 of title 31, United States Code, for the payment
of judgments. The executive agency concerned shall reimburse
that appropriation account out of funds available for the
procurement.
(h) Appeals.--Except as provided in subsection (e)(3), a
final decision of the Board may be appealed as set forth in
section 8(d)(1) of the Contract Disputes Act of 1978 by the
head of the executive agency concerned and by any interested
party, including interested parties who intervene in any
protest filed under this section.
(i) Additional Relief.--Nothing contained in this section
shall affect the power of the Board to order any additional
relief which it is authorized to provide under any statute or
regulation.
(j) Nonexclusivity of Remedies.--Nothing contained in this
section shall affect the right of any interested party to file
a protest with the contracting agency or to file an action in
the United States Court of Federal Claims or in a United States
district court.
SEC. 865. APPLICABILITY TO CONTRACTS FOR COMMERCIAL ITEMS.
Notwithstanding section 34 of the Office of Federal
Procurement Policy Act (41 U.S.C. 430), the authority conferred
on the Board by this subtitle is applicable to contracts for
the procurement of commercial items.
PART IV--REPEAL OF OTHER STATUTES AUTHORIZING ADMINISTRATIVE PROTESTS
SEC. 871. REPEALS.
(a) GSBCA Provisions.--Subsection (f) of the Brooks
Automatic Data Processing Act (section 111 of the Federal
Property and Administrative Services Act of 1949; 40 U.S.C.
759) is repealed.
(b) GAO Provisions.--Subchapter V of chapter 35 of title
31, United States Code (31 U.S.C. 3551-3556) is repealed.
PART V--TRANSFERS AND TRANSITIONAL, SAVINGS, AND CONFORMING PROVISIONS
SEC. 881. TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PERSONNEL.
(a) Transfer.--The personnel employed in connection with,
and the assets, liabilities, contracts, property, records, and
unexpended balance of appropriations, authorizations,
allocations, and other funds employed, held, used, arising
from, available to, or to be made available in connection with
the functions vested by law in the Comptroller General pursuant
to subchapter V of chapter 35 of title 31, United States Code,
and in the boards of contract appeals established pursuant to
section 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607)
(as in effect on the day before the effective date of this
Act), shall be transferred to the Board for appropriate
allocation by the Chairman.
(b) Effect on Personnel.--Personnel transferred pursuant to
this subtitle shall not be separated or reduced in compensation
for one year after such transfer, except for cause.
(c) Regulations.--(1) The Board shall prescribe regulations
for the release of competing employees in a reduction in force
that gives due effect to--
(A) efficiency or performance ratings;
(B) military preference; and
(C) tenure of employment.
(2) In prescribing the regulations, the Board shall provide
for military preference in the same manner as set forth in
subchapter I of chapter 35 of title 5, United States Code.
SEC. 882. TERMINATIONS AND SAVINGS PROVISIONS.
(a) Termination of Boards of Contract Appeals.--On the
effective date of this subtitle, the boards of contract appeals
established pursuant to section 8 of the Contract Disputes Act
of 1978 (41 U.S.C. 607) (as in effect on the day before the
effective date of this Act) shall terminate.
(b) Savings Provision for Contract Dispute Matters Pending
Before Boards.--The provisions of this subtitle shall not
affect any proceedings (other than bid protests pending before
the board of contract appeals of the General Services
Administration) pending on the effective date of this Act
before any board of contract appeals described in subsection
(a). Such proceedings shall be continued by the Board, and
orders which were issued in any such proceeding by any board of
contract appeals shall continue in effect until modified,
terminated, superseded, or revoked by the Board, by a court of
competent jurisdiction, or by operation of law.
(c) Bid Protest Transition Provisions.--(1) No protest may
be submitted to the Comptroller General pursuant to section
3553(a) of title 31, United States Code, or to the board of
contract appeals for the General Services Administration
pursuant to the Brooks Automatic Data Processing Act (40 U.S.C.
759) on or after the effective date of this Act.
(2) The provisions repealed by section 871 shall continue
to apply to proceedings pending on the effective date of this
subtitle before the board of contract appeals of the General
Services Administration and the Comptroller General pursuant to
those provisions, until the board or the Comptroller General
determines such proceedings have been completed.
SEC. 883. CONTRACT DISPUTE AUTHORITY OF BOARD.
(a) Section 2 of the Contract Disputes Act of 1978 (41
U.S.C. 601) is amended by striking out paragraph (6) and
inserting in lieu thereof the following:
``(6) the term `Board' means the United States Board
of Contract Appeals; and''.
(b) Section 6(c) of the Contract Disputes Act of 1978 (41
U.S.C. 605(c)) is amended--
(1) in paragraph (4)--
(A) by striking out ``the agency board of
contract appeals'' and inserting in lieu
thereof ``the United States Board of Contract
Appeals''; and
(B) by striking out ``the board'' and
inserting in lieu thereof ``the Board''; and
(2) in paragraph (6)--
(A) by striking out ``an agency board of
contract appeals'' and inserting in lieu
thereof ``the United States Board of Contract
Appeals''; and
(B) by striking out ``agency board'' and
inserting in lieu thereof ``the Board''.
(c) Section 7 of the Contract Disputes Act of 1978 (41
U.S.C. 606) is amended by striking out ``an agency board of
contract appeals'' and inserting in lieu thereof ``the United
States Board of Contract Appeals''.
(d) Section 8 of the Contract Disputes Act of 1978 (41
U.S.C. 607) is amended--
(1) by amending the heading to read as follows:
``united states board of contract appeals'';
(2) by striking out subsections (a), (b), and (c);
(3) in subsection (d)--
(A) by striking out the first sentence and
inserting in lieu thereof the following:
``The United States Board of Contract Appeals shall have
jurisdiction to decide any appeal from a decision of a
contracting officer of any executive agency relative to a
contract made by that agency.''; and
(B) in the second sentence, by striking out
``the agency board'' and inserting in lieu
thereof ``the Board'';
(4) in subsection (e), by striking out ``An agency
board'' and inserting in lieu thereof ``The United
States Board of Contract Appeals'';
(5) in subsection (f), by striking out ``each agency
board'' and inserting in lieu thereof ``the United
States Board of Contract Appeals'';
(6) in subsection (g)--
(A) in the first sentence of paragraph (1),
by striking out ``an agency board of contract
appeals'' and inserting in lieu thereof ``the
United States Board of Contract Appeals'';
(B) by striking out paragraph (2); and
(C) by redesignating paragraph (3) as
paragraph (2);
(7) by striking out subsections (h) and (i); and
(8) by redesignating subsections (d), (e), (f), and
(g) (as amended) as subsections (a), (b), (c), and (d),
respectively.
(e) Section 9 of the Contract Disputes Act of 1978 (41
U.S.C. 608) is amended--
(1) in subsection (a), by striking out ``each agency
board'' and inserting in lieu thereof ``the United
States Board of Contract Appeals''; and
(2) in subsection (b), by striking out ``the agency
board'' and inserting in lieu thereof ``the Board''.
(f) Section 10 of the Contract Disputes Act of 1978 (41
U.S.C. 609) is amended--
(1) in subsection (a)--
(A) in the first sentence of paragraph (1)--
(i) by striking out ``Except as
provided in paragraph (2), and in'' and
inserting in lieu thereof ``In''; and
(ii) by striking out ``an agency
board'' and inserting in lieu thereof
``the United States Board of Contract
Appeals'';
(B) by striking out paragraph (2); and
(C) by redesignating paragraph (3) as
paragraph (2), and in that paragraph, by
striking out ``or (2)'';
(2) in subsection (b), by striking out ``any agency
board'' and ``the agency board'' and inserting in lieu
of each ``the Board'';
(3) in subsection (c), by striking out ``an agency
board'' and ``the agency board'' and inserting in lieu
of each ``the Board''; and
(4) in subsection (d), by striking out ``one or more
agency boards'' and ``or among the agency boards
involved'' and inserting in lieu of each ``the Board''.
(g) Section 11 of the Contract Disputes Act of 1978 (41
U.S.C. 610) is amended--
(1) in the first sentence, by striking out ``an
agency board of contract appeals'' and inserting in
lieu thereof ``the United States Board of Contract
Appeals''; and
(2) in the second sentence, by striking out ``the
agency board through the Attorney General; or upon
application by the board of contract appeals of the
Tennessee Valley Authority'' and inserting in lieu
thereof ``the Board''.
(h) Section 13 of the Contract Disputes Act of 1978 (41
U.S.C. 612) is amended--
(1) in subsection (b), by striking out ``an agency
board of contract appeals'' and inserting in lieu
thereof ``the United States Board of Contract
Appeals''; and
(2) in subsection (d)(2), by striking out ``by the
board of contract appeals for'' and inserting in lieu
thereof ``by the Board from''.
SEC. 884. REFERENCES TO AGENCY BOARDS OF CONTRACT APPEALS.
Any reference to an agency board of contract appeals in any
provision of law or in any rule, regulation, or other paper of
the United States shall be treated as referring to the United
States Board of Contract Appeals.
SEC. 885. CONFORMING AMENDMENTS.
(a) Title 5.--Section 5372a of title 5, United States Code,
is amended--
(1) in subsection (a)(1), by striking out ``an agency
board of contract appeals appointed under section 8 of
the Contract Disputes Act of 1978'' and inserting in
lieu thereof ``the United States Board of Contract
Appeals'';
(2) in subsection (a)(2), by striking out ``an agency
board of contract appeals established pursuant to
section 8 of the Contract Disputes Act of 1978'' and
inserting in lieu thereof ``the United States Board of
Contract Appeals''; and
(3) in subsection (b), by striking out ``an appeals
board'' each place it appears and inserting in lieu
thereof ``the appeals board''.
(b) Title 10.--(1) Section 2305(e) of title 10, United States
Code, is amended--
(A) in paragraph (1), by striking out ``subchapter V
of chapter 35 of title 31'' and inserting in lieu
thereof ``title IV of the Federal Acquisition Reform
Act of 1995''; and
(B) by striking out paragraph (3).
(2) Section 2305(f) of such title is amended--
(A) in paragraph (1), by striking out ``in
subparagraphs (A) through (F) of subsection (b)(1) of
section 3554 of title 31'' and inserting in lieu
thereof ``section 424(f)(2) of the Federal Acquisition
Reform Act of 1995''; and
(B) in paragraph (2), by striking out ``paragraph (1)
of section 3554(c) of title 31'' and inserting in lieu
thereof ``section 424(g)(1)(A) of the Federal
Acquisition Reform Act of 1995''.
(c) Federal Property and Administrative Services Act of
1949.--(1) Section 303B(h) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253b(h)) is
amended--
(A) in paragraph (1), by striking out ``subchapter V
of chapter 35 of title 31'' and inserting in lieu
thereof ``title IV of the Federal Acquisition Reform
Act of 1995''; and
(B) by striking out paragraph (3).
(2) Section 303B(i) of such Act (41 U.S.C. 253b(i)) is
amended--
(A) in paragraph (1), by striking out ``in
subparagraphs (A) through (F) of subsection (b)(1) of
section 3554 of title 31'' and inserting in lieu
thereof ``section 424(f)(2) of the Federal Acquisition
Reform Act of 1995''; and
(B) in paragraph (2), by striking out ``paragraph (1)
of section 3554(c) of title 31'' and inserting in lieu
thereof ``section 424(g)(1)(A) of the Federal
Acquisition Reform Act of 1995''.
PART VI--EFFECTIVE DATE; INTERIM APPOINTMENT AND RULES
SEC. 891. EFFECTIVE DATE.
This subtitle shall take effect on October 1, 1996.
SEC. 892. INTERIM APPOINTMENT.
The Board judge serving as chairman of the board of contract
appeals of the General Services Administration on the date of
the enactment of this Act shall serve as Chairman during the
two-year period beginning on the effective date of this
subtitle, unless such individual resigns such position or the
position otherwise becomes vacant before the expiration of such
period. The authority vested in the President by section 853
shall take effect upon the expiration of such two-year period
or on the date such position is vacated, whichever occurs
earlier.
SEC. 893. INTERIM RULES.
(a) Rules of Procedure.--Until such date as the Board
promulgates rules of procedure, the rules of procedure of the
board of contract appeals of the General Services
Administration, as in effect on the effective date of this Act,
shall be the rules of procedure of the Board.
(b) Rules Regarding Board Judges.--Until such date as the
Board promulgates rules governing the establishment and
maintenance of a register of eligible applicants and the
selection of Board judges, the rules of the Armed Services
Board of Contract Appeals governing the establishment and
maintenance of a register of eligible applicants and the
selection of board members shall be the rules of the Board
governing the establishment and maintenance of a register of
eligible applicants and the selection of Board judges, except
that any provisions of the rules of the Armed Services Board of
Contract Appeals that authorize any individual other than the
chairman of such board to select a Board judge shall have no
effect.
Subtitle E--Effective Dates and Implementation
SEC. 895. EFFECTIVE DATE AND APPLICABILITY.
(a) Effective Date.--Except as otherwise provided in this
title, this title and the amendments made by this title shall
take effect on the date of the enactment of this Act.
(b) Applicability of Amendments.--(1) An amendment made by
this title shall apply, in the manner prescribed in the final
regulations promulgated pursuant to section 896 to implement
such amendment, with respect to any solicitation that is
issued, any unsolicited proposal that is received, and any
contract entered into pursuant to such a solicitation or
proposal, on or after the date described in paragraph (3).
(2) An amendment made by this title shall also apply, to the
extent and in the manner prescribed in the final regulations
promulgated pursuant to section 896 to implement such
amendment, with respect to any matter related to--
(A) a contract that is in effect on the date
described in paragraph (3);
(B) an offer under consideration on the date
described in paragraph (3); or
(C) any other proceeding or action that is ongoing on
the date described in paragraph (3).
(3) The date referred to in paragraphs (1) and (2) is the
date specified in such final regulations. The date so specified
shall be October 1, 1996, or any earlier date that is not
within 30 days after the date on which such final regulations
are published.
SEC. 896. IMPLEMENTING REGULATIONS.
(a) Proposed Revisions.--Proposed revisions to the Federal
Acquisition Regulation and such other proposed regulations (or
revisions to existing regulations) as may be necessary to
implement this title shall be published in the Federal Register
not later than 210 days after the date of the enactment of this
Act.
(b) Public Comment.--The proposed regulations described in
subsection (a) shall be made available for public comment for a
period of not less than 60 days.
(c) Final Regulations.--Final regulations shall be published
in the Federal Register not later than 330 days after the date
of enactment of this Act.
(d) Modifications.--Final regulations promulgated pursuant to
this section to implement an amendment made by this title may
provide for modification of an existing contract without
consideration upon the request of the contractor.
(e) Savings Provisions.--(1) Nothing in 