OFFICE OF MANAGEMENT AND BUDGET DRAFT BILL -- THE "FEDERAL ACQUISITION ACT OF 1987."

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90M00004R001000130007-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 60
• Document Creation Date: December 27, 2016
• Document Release Date: December 6, 2011
• Sequence Number: 7
• Publication Date: September 22, 1987
• Content Type: MEMO

STAT
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OFFICE OF CONGRESSIONAL AFFAIRS
ACTION
INFO
1. D/OCA
X
2. DD/legislation
xxx,1
3. DD/Senate Affairs
-
X
4. Ch/Senate Affairs
5. DD/House Affairs
x
6. Ch/Hous.Affairs
7. Admin Officer
8. Executive Officer
9. FOIA.Officer
C 10. Cons ituent Inquiries
11
12.
9 Oct 1
c !c 25 Sept 3l
ATTACf -`J 4ITH ACTIO`+ >;)FFICEP
STAT
STAT
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EXECUTIVE OFFICE OF THE PRESIDENT U/tONJESS IAI. AFFAIRS
OFFICE OF MANAGEMENT AND BUDGET 37-4078
WASHINGTON. D.C. 20503
September 22, 1987
LEGISLATIVE REFERRAL MEMORANDUM
SEE ATTACHED DISTRIBUTION LIST
Office of Management and Budget draft bill -- the
"Federal Acquisition Act of 1987."
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship to
the program of the President, in accortlrnc a with Circular A-19.
Please provide us with your views no later than October 9, 1987
Direct your questions to Gregory Jones (395-3454), of this office.
Assistant Director for
Legislative Reference-
Enclosures
cc: Bill Coleman David Haun
Amy Belasco Naomi Sweeney
Norine Noonan Ed Rea
Frank Reeder
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DISTRIBUTION LIST
AGENCY
Department of Agriculture (01)
Department of Commerce (04)
Department of Defense (06)
Department of Education (07)
Department of Energy (09)
Department of Health
and Human Services (14)
Department of Housing
and Urban Development (15)
Department of the Interior (16)
Department of Justice (17)
Department of Labor (18)
Department of State (25)
Department of Transportation (26)
Department of the Treasury (28)
Environmental Protection Agency (08)
Federal Emergency
Management Agency (10)
NASA (19)
Office of Personnel Management (22)
Small Business Administration (24)
Veterans Administration (29)
General Services Administration (37)
ral Intelligence Agency
CONTACT
PHONE NUMBER
Sid Clemans
Mike Levitt
Sam Brick
Nancy Heindel
Bob Rabben
382-1516
377-3151
697-1305
732-2670
586-6718
Ed Murphy
755-7240
Philip Kiko
343-6706
Jack Perkins
633-2113
Seth Zinman
523-8201
Lee Howdershell
647-4463
Tom Herlihy
366-4684
Carole Toth
566-8523
Hank Schilling
382-5414
Spence Perry
646-4105
Toby Costanzo
453-1080
James Woodruff
632-5524
Cliff Downen
653-6545
Donald Ivers
389-3831
Al Vicchiolla
566-0563
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Declaration of Policy
Section 101 It is the policy of the United States to promote
economy, efficiency, and effectiveness in the procurement of
property and services by the Federal government by --
(1) simplifying the procurement process;
(2) promoting competition;
(3) establishing policies, procedures, and practices that permit
the government to acquire property and services of the necessary
quality, within the time specified, at the lowest reasonable
cost;
(4) establishing the pre-eminent authority and accountability of
the contracting officer by providing clear, unambiguous lines of
contracting authority with as few constraints as are necessary;
(5) providing incentives to encourage agencies and contractors to
carry out the purposes and policies of this Act;
(6) reducing procurement administrative lead times to the minimum
number of days consistent with good business practices;
(7) requiring, to the maximum extent practicable, the use of
commercial products to meet the government's needs;
(8) requiring, whenever feasible, the use.of specifications that
describe the government's needs in terms of functions to be
performed or the performance required;
(9) supporting the continuing development and maintenance of a
procurement career management program to ensure a professional
procurement workforce;
(10) promoting fair dealings and equitable relationships with the
private sector;
(11) ensuring the development of procurement policies that will
accommodate emergencies and wartime as well as peacetime
requirements;
(12) promoting the participation of small business concerns; and
(13) maintaining a strong industrial base.
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Sec. 201. For purposes of this Act the terms ---
(a) "Competitive procedures" are procedures by which an
agency enters into a contract following full and open
competition. Competitive procedures include ---
(1) the procedures required in Title IX of this Act
(40 U.S.C. 541 et sea.) for the procurement of
architect and engineering services;
(2) the competitive selection of basic research
proposals resulting from a general solicitation and the
peer review or scientific review (as appropriate) of
such proposals; and
(3) the procedures established by the Administrator
for General Services for the multiple awards schedule
program of the General Services Administration if --
(A) all responsible sources were allowed to
participate in the programs; and
(B) orders and contracts under such procedures
result in the alternative with the lowest overall
cost meet the needs of the Government;
(4) procurements conducted in furtherance of section
15 of the Small Business Act (15 U.S.C. 644) as long as
responsible business concerns that are entitled to
submit offers for such procurements are permitted to
compete; and
(5) a competitive selection of research proposals
resulting from a general solicitation and peer
review or scientific review.
(b) "commercial product or commercial-type product" means
any part or item of equipment or supply available in the
commercial marketplace, including any part or item that requires
only minor modification.
(c) "Contracting officer" means the head of an executive
agency and such other persons duly authorized by such person to
execute contracts on behalf of the United States for the purchase
of property and services.
(d) "Cost or Pricing Data" means all information that is
verifiable and that, as of the date of agreement on the price of
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a contract (or the price of a contract modification), a prudent
buyer or seller would reasonably expect to affect price
negotiations significantly. Such term does not include
information that is judgmental, but does include the factual
information from which a judgment is derived.
(e) "agency" means each authority of the Government of the
United States as defined in title 5, Section 551, of the United
States code.
(f) "full and open competition" means that all responsible
sources are permitted to submit sealed bids or competitive
proposals on the procurement;
(g) "property" means personal property. The term excludes
real property, such as leaseholds and other interests in real
property.
(h) The "single system of Government-wide procurement
regulations" means (A) the Federal Acquisition Regulation, a
single Government-wide procurement regulation issued and
maintained jointly by the General Services Administration, the
Department of Defense, and the National Aeronautics and Space
Administration and any regulation issued (by OFPP] pursuant to
Section 6 of the Office of Federal Procurement Policy Act, as
amended, 41 U.S.C. 405 (b) and (B) agency acquisition regulations
implementing and supplementing the Federal Acquisition Regulation
essential to implement only agency unique policies and
procedures.
(i) ."Technical data" means recorded information (regardless
of the form or method of the recording) of a scientific or
technical nature (including computer software documentation)
concerning supplies procured by an agency. Such term does not
include computer software or financial, administrative, cost or
pricing, or management data or other information incidental to
contract administration.
(j) "Major system" means a combination of elements that will
function together to produce the capabilities required to fulfill
a mission need, which elements may include hardware, equipment,
software or any combination thereof, but excludes construction or
other improvements on real property. The minimum dollar threshold
that designates a major system shall be established in the
regulations required in Section 1300 of this Act.
(k) "Item", or "item of supply", or "supplies" means any
individual part, component, subassembly, assembly, or subsystem
integral to a major system, and other property which may be
replaced during the service life of the system, and includes
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spare parts and replenishment spare parts, but does not include
packaging or labeling associated with shipment or identification
of an "item".
Applicability
Section 202. This Act applies to the acquisition by contract of
property and services by any executive agency, whether for the
use of the executive agency or otherwise, for which payment is
made from appropriated funds.
Acquisition Authority and Management
Section 301 (a) Contracting Authority of an agency
(1) Except as otherwise specifically provided in this
Act, the authority of an agency to contract for
authorized property and services on behalf of the
Government is vested in contracting officers.
(2) Contracting officers are authorized to enter into,
administer, and terminate contracts and make related
determinations and findings on behalf of the agency.
Contracts may be entered into and signed only by
contracting officers. Contracting officers will ensure
the performance of all necessary a c t i o n s f o r
effective procurement, ensuring compliance with the
terms of the contracts and safeguarding the interests
of the United States in its contracts. In order to
perform 'these responsibilities, contracting officers
should exercise sound business judgement in the
interest of the United States.
(3)
The authority of contracting officers to execute
specific contracting functions within an agency shall
not relieve the head of the agency of overall
responsibility for the administration of such
functions.
(b) Management Responsibilities
To carry out the purposes of this Act and to achieve effective,
efficient, and economical procurement, the head of each agency,
in accordance with applicable federal laws, the requirements of
the single system of government-wide procurement regulations,and
good business practices shall --
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(1) Establish short, clear lines of authority,
accountability, and responsibility for acquisition
decision making within the agency
(2) Appoint, supervise, reassign and remove contracting
officers in accordance with applicable laws.
(3) Ensure the integration of the procurement activities of
the agency with planning and budgeting functions of the
agency.
(4) Ensure that the authority of contracting officer is
sufficient to carry out the responsibilities assigned
by this Act.
(5) Establish procedures to ensure the coordination of the
contract audit activities of the executive agency to
achieve the minimum burden on contractors consistent
with prudent business practices.
(6) Establish program needs and plans for the acquisition
of property and services of the agency.
(7) Ensure that the Senior Acquisition Executive appointed
in accordance with subsection (c). has sufficient resources to
develop and institute an acquisition personnel training and
career development program in the agency to ensure a competent
and productive workforce.
(c) Senior Acquisition Executives
(1) The head of an agency shall appoint a Senior
Acquisition Executive who shall be responsible for the
overall management and direction of the agency's
acquisition system, including implementation of
acquisition policies, regulations and standards within
the agency. The Senior Acquisition Executive shall also
ensure the coordination of the contract auditor as part
of the contracting team.
(2) The Senior Acquisition Executive shall designate an
Advocate for Competition within the agency who shall--
(i) identify and challenge barriers to competition;
(ii) promote the use of competitive procedures
(3) When a department or agency is composed of two or more
agencies, the Senior Acquisition Executive may
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designate an acquisition executive and an advocate for
competition for those agencies.
(4) The Senior Acquisition Executive shall be responsible
for all regulatory and paperwork activities within the
agency that pertain to acquisition matters.
(5) The Senior Acquisition Executive shall consult with the
Administrator for Federal Procurement Policy and the
Office of Personnel Management to develop education,
and training, career development and career management
programs for acquisition personnel. Such programs
shall be designed to enhance recruitment and retention
of highly qualified personnel and shall --
(i) provide for temporary assignment and temporary
promotion of highly skilled acquisition personnel to
critical assignments such as major systems programs or
highly sophisticated acquisitions. The continuation of
such temporary assignments and promotions shall be
conditioned upon the level of performance demonstrated
by the employee
(ii) provide for the establishment of an acquisition
core group of specially selected entry level interns
who-will be placed within each agency. Members of this
.intern program will be placed in a structured program
of training and rotational assignments to ensure their
competence to progress to senior level acquisition
positions.
General Acquisition Requirements
Section 401(a) A contracting officer for an agency,
responsible for procuring property and services for the agency,
shall --
(1) ensure that the appropriate agency officials have determined
that such property or service is needed to carry out an
authorized function of the agency;
(2) ensure that adequate funding is available for procuring such
property or service; and
(3) exercise good business judgment in carrying out his/her
responsibilities.
(b) except as provided in sections 501, 502, and 503, or
otherwise provided by law, acquisition of property or services
shall be made in accordance with the provisions of this title.
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Full and Open Competition
Section 402(a) [Except as provided in sections 403 and
404,] In procuring property or services, a contracting officer
shall --
(1) obtain full and open competition through the use of
competitive procedures to obtain sealed bids or proposals; and
(2) use those procedures or combination of procedures that are
best suited to the particular procurement.
(b) In determining the competitive procedures appropriate under
the circumstance, the contracting officer shall --
(1) solicit sealed bids if --
(A) time permits the solicitation, submission, and
evaluation of sealed bids;
(B) the award will be made on the basis of price and other
price-related factors;
(C) it is not necessary to conduct discussions with the
responding sources about their bids; and
(D) there is a reasonable expectation of receiving more
than one sealed bid; or
(2) request competitive proposals if the contracting officer
determines that sealed bids are not appropriate.
Limited Competition
Section 403(a) (1) A contracting officer may procure
property or services using competitive procedures but may exclude
a particular source if the contracting officer determines that it
is necessary in order to establish or maintain any alternative
source or sources of supply for that property or service.
(2) Such a determination must conclude that it would --
(A) increase or maintain competition and would likely
result in reduced overall costs for such procurement, or for any
anticipated procurement, of such property or services;
(B) be in the interest of national defense in having a
facility (or a producer, manufacturer, or other supplier)
available for furnishing the property or service in case of a
national emergency or industrial mobilization;
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(C) be in the interest of national defense in maintaining
multiple cources for a critical item of supply; or
(D) be in the interest of national defense in establishing
or maintaining an essential engineering, research, or development
capability to be provided by an educational or other nonprofit
institution or a federally funded research and development
center.
(b) In fulfilling the statutory requirements relating to small
business concerns and socially and economically disadvantaged
small business concerns, an agency shall use competitive
procedures but may restrict a solicitation to allow only such
business concerns to compete.
Procurement Without Competition
Section 404(a) A contracting officer may use procedures
other than competitive procedures only when --
(1) the property or services needed by the agency are available
from only one responsible source and no other type of property or
service will satisfy the needs of the agency;
(2) the agency's need for the property or service is of such
unusual and compelling urgency that the government would be
seriously injured unless the agency is permitted to limit the
number of sources from which it solicits bids or proposals;
(3) it is necessary to award the contract to a particular source
or sources in order (A) to maintain a facility, producer,
manufacturer, or other supplier so that it will be available for
furnishing the property or service in case of a national
emergency; (B) to achieve industrial mobilization; or (C) to
establish or maintain an essential engineering, research, or
development capability to be provided by an educational or other
nonprofit institution or a federally funded research and
development center;
(4) the terms of an international agreement or treaty between the
United States Government and a foreign government or
international organization, or the written directions of a
foreign government reimbursing the agency for the cost of the
procurement of the property or services for such government, have
the effect of requiring the use of procedures other than
competitive procedures;
(5) a statute expressly authorizes or requires that the
procurement be made through another agency or from a specified
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source, or the agency's need is for a brand-name commercial item
for authorized resale;
(6) the disclosure of the needs of an agency would compromise the
national security unless the agency is permitted to limit the
number of sources from which it solicits bids or proposals; or
(7) the head of the agency (A) determines that it is necessary in
the public interest to use procedures other than competitive
procedures in the particular procurement concerned, and (B)
notifies the Congress in writing of such determination not less
than 30 days before the award of the contract. The authority of
the agency head may not be delegated.
(b) (1) For the purposes of applying subsection (a) (1) of this
section --
(A) in the case of a contract for property or services to be
awarded on the basis of acceptance of an unsolicited research
proposal, the property or services shall be considered to be
available from only one source if the source has submitted an
unsolicited research proposal that demonstrates a unique and
innovative concept, the substance of which is not otherwise
available to the United States and does not resemble the
substance of a pending competitive procurement; and
(B) in the case of a follow-on contract for the continued
development or production of a major system of highly specialized
equipment,or the continued provision of highly specialized
services, when it is likely that award to a source other than the
original source would result in (A) substantial duplication of
cost to the government which is not expected to be recovered
through competition, or (B) unacceptable delays in fulfilling the
executive agency's needs, such property may be deemed to be
available only from the original source and may be procured
through procedures other than competitive procedures.
(2) For the purposes of applying subsections (a)(2) and (a)(6) of
this section, the contracting officer shall request offers from
as many potential sources as is practicable under the
circumstances.
Justification and Approvals
Section 405(a) Except as provided in subsection (c) of this
section, a contracting officer may not award a contract using
noncompetitive procedures unless --
(1) the contracting officer for'the contract justifies the use of
such procedures in writing, pursuant to the requirements set
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forth in regulation, and certifies the accuracy and completeness
of the justification;
(2) the justification is approved--
(A) in the case of a contract in the amount of
$10,000,000 or more by the senior acquisition executive of
the without delegation;
(B) in the case of a contract in an amount of less than
$10,000,000 by the procurement official at a level above the
contracting officer as determined by the senior acquisition
executive of the agency; and
(3) All required notices concerning the contract have been
published and all bids or proposals received in response to such
notices have been considered by such agency.
(b) The justification required by subsection (a) (1) of this
section and any referenced information shall be made available to
the public upon request, except for information exempted from
release by section 552 of title 5, United States Code.
(c) In the case of a procurement permitted by section 404(a)(2),
the justification and approval required by subsection (a) of this
section may be made after the contract is awarded. The
justification and approval required by subsection (a) of this
section is not required in the case of a procurement permitted by
section 404(a)(7) or in the case of a procurement conducted under
the Wagner-O'Day Act.
(d) In no case may ,a contracting officer --
(1) enter into a contract for property or services using
procedures other than competitive procedures on the basis of the
lack of advance planning or concerns related to the amount of
funds available to the agency for procurement functions; or
(2) procure property or services from another agency unless such
other agency complies fully with the requirements of this Act in
its procurement of such property or services (this restriction is
in addition to, and not in lieu of, any other restriction
provided by law).]
Planning and Solicitation Requirements
Section 406(a)(1) In preparing for the procurement of
property or services, an agency shall --
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(A) specify its needs and solicit bids or proposals to
achieve full and open competition for the property and services;
(B) use advance procurement planning and market research;
(C) develop specifications in such manner as is necessary to
obtain full and open competition with due regard to the nature of
the property or services to be acquired.
(D) define the agency's requirements for equipment and
supplies so that commercial products may be use to fulfill its
requirements.
(E) select the contract type most appropriate for the
circumstances except that;
(i) a cost-plus-percentage-of-cost type contract may
not be used;
(ii) the fee for performing a cost-plus-fixed-fee
contract for experimental, developmental, or research work may
not be more than 15 percent of the estimated cost of the
contract;
(iii) except for (iv) the fee for performing any other
cost-plus-fixed-fee contract may not be more than 10 percent of
the estimated cost of the contract;
(iv) in no case shall the fee (total Compensation) paid
for the production and delivery of designs, plans, drawing, and
specifications under any contract for architect-engineer services
relating to any public work exceed 6 percent of the estimated
cost of construction; and
(v) the determination of the estimated cost of a
contract, or the the cost of construction shall be made by the
contracting officer at the time the contract is made.
(F) ensure that the contract type selected provides the
contractor with incentives commensurate with the contractor's
financial investment, and technological, schedule and performance
risk. Fixed price contracts are normally not appropriate for
research and development phases. For such efforts, a cost-
reimburesement contract is preferable because it permits an
equitable allocation of program risk between contracting parties.
(2) The contracting officer shall ensure that each solicitation
for property and services include specifications that --
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(A) permit full and open competition, unless specifically
authorized by law;
(B) include restrictive provisions or conditions only to the
extent necessary to satisfy the needs of the agency.
(3) Such specifications shall be stated in terms of --
(A) function, so that a variety of products or services may
qualify;
(B) performance, including specifications of the range of
acceptable characteristics or of the minimum acceptable
standards; or
(C) design requirements.
(b) Each solicitation for sealed bids or competitive proposals
shall set forth (A) all significant factors that the contracting
officer reasonably expects to consider in evaluating sealed bids
(including price) or competitive proposals (including cost or
price); and (B) the relative importance assigned to each of those
factors.
(c) Such solicitation shall also state --
(1) (A) that sealed bids will be evaluated without
discussions with the bidders; and
(B) the time and place for the opening of the sealed bids;
(2)(A) that competitive proposals are intended to be
evaluated with, and awards made after, discussions with the
offerors, but might be evaluated and awarded without discussions
with the offerors; and
(B) the time and place for submission of such proposals.
(d) In prescribing the evaluation factors to be included in each
solicitation for competitive proposals, the contracting officer
clearly establish the relative importance assigned to the quality
of the services to be provided (including technical capability,
management capability, and prior experience of the offeror.
Procurement Notice
Section 407(a) Except as provided in subsection (c) of this
section --
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(1) Before a contracting officer solicits bids or proposals for
a contract for property or services expected to exceed $25,000,
and again at the time of award of such contract (if there are
likely to be subcontracts), the contracting officer shall furnish
to the Secretary of Commerce a notice described in subsection (b)
of this section.
(2) The Secretary of Commerce shall publish promptly in the
Commerce Business Daily each such notice.
(3) Whenever a notice of solicitation is required to be provided
to the Secretary of Commerce, a contracting officer may not --
(A) issue such solicitation earlier than 15 days after the
date on which such notice is published by the Secretary of
Commerce; or
(B) establish a deadline for the submission of all bids or
proposals in response to such solicitation that is earlier than
30 days after the date on which such solicitation is issued.
(b) Each notice required by subsection (a) (1) of this section
shall include such information as specified by regulation issued
by the Administrator for Federal Procurement Policy.
(c)(1) Notices (both pre- and post-award) are not required under
subsection (a)(1) of this section if --
(A) such notices would disclose the executive agency's needs
and the disclosure of such needs would compromise the national
security;
(B) the proposed procurement would result from acceptance of
any unsolicited proposal that demonstrates a unique and
innovative research concept, and the publication of any notice of
such unsolicited research proposal would disclose the originality
of thought or innovativeness of the proposal or would disclose
proprietary information associated with the proposal;
(C) the procurement is made against an order placed under a
requirements contract, or
(D) the procurement is made for perishable subsistence
supplies.
(2) The requirements of subsection (a)(1) of this section
pertaining only to pre-award notice do not apply to any
procurement under conditions described in clause (2), (3), (4),
(5), or (7) of section 404(a).
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(3) The requirements of subsection (a)(1) of this section
pertaining to pre-award notice shall not apply in the case of any
procurement for which the head of the executive agency makes a
determination in writing,after consultation with Administrator
for Federal Procurement Policy and the Administrator of the Small
Business Administration that it is not appropriate or reasonable
to publish a notice before issuing a solicitation.
(d) An agency shall make avalilble to any business concern, or
the authorized representative of such concern, the complete
solicitation package for any on-going procurement announced
pursuant this section.
Evaluation and Award
Section 408(a) A contracting officer shall evaluate sealed
bids and competitive proposals based solely on the factors
specified in the solicitation.
(b) All sealed bids or competitive proposals received in
response to a solicitation may be rejected if the contracting
officer determines that such action is in the public interest.
(c) Sealed bids shall be opened publicly at the time and place
stated in the solicitation. * The contracting officer shall
evaluate the bids without discussions with the bidders and,
except as provided in subsection (b) of this section, shall award
a contract with reasonable promptness to the responsible source
whose bid conforms to the solicitation and is most advantageous
to the United States, considering only price and the other price-
related factors included in the solicitation. The award of a
contract shall be made by transmitting written notice of the
award to the successful bidder.
(d)(1) The contracting officer shall evaluate competitive
proposals and may award a contract --
(A) after discussions conducted with the offerors at any
time after receipt of the proposal and before the award of the
contract; or
(B) without discussions with the offerors (other than
discussions conducted for the purposes of minor clarification)
when it can be clearly demonstrated from the existence of full
and open competition or accurate prior cost experience with the
product or service that acceptance of an initial proposal without
discussions would result in the ,lowest overall cost to the
government.
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(2) In the case of award of a contract under paragraph (1) (A),
the contracting officer shall conduct, before such award, written
or oral discussions with all responsible sources who submit
proposals within the competitive range, considering only factors
included in the solicitation.
(3) In the case of award of a contract under paragraph (1)(B),
the contracting officer shall award the contract based on the
proposals as received (and as clarified, if necessary, in
discussions conducted for the purpose of minor clarification).
(4) Except as otherwise provided in subsection (b) of this
section, the agency shall award a contract with reasonable
promptness to the responsible source whose proposal is most
advantageous to the United States, considering only price and the
other factors included in the solicitation. The agency shall
award the contract by transmitting written notice of the award to
such source and shall promptly notify all other offerors of the
rejection of their proposals.
(e) If the head of an agency considers that a bid or proposal
evidences a violation of the antitrust laws, such agency head
shall refer the bid or proposal to the Attorney General for
appropriate action.
Special Acquisition Procedures
(a) Any procurement of property or services not exceeding
$25,000, or the amount established pursuant to Section 1100, may
be made in accordance with simplified small purchase procedures
promulgated in the regulations prescribed under Section 1300.
(b) A procurement requirement shall not be artificially divided
so as to constitute a small purchase under this section.
Section 410 Multiple Award Schedules
(a) The Administrator of the General Services Administration may
prescribe special competitive acquisition procedures for its
multiple award schedule program.
(b) These procedures must provide an opportunity for all
interested parties to submit proposals.
(c)These procedures require an agency to place an order with the
contractor who offers the lowest overall cost alternative which
meets its minimum needs.
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Section 411 Basic Research
The regulations issued in accordance with Section 1300 may
provide special procedures for the competitive selection of
research proposals form a general solicitation and the peer
review or scientific review(as appropriate) of those proposals.
Architect-Engineer-Services
Section 501 (1) Contracting officers shall award contracts for
architectural and engineering services on the basis of
demonstrated competence and qualification for the type of
professional services required at fair and reasonable prices. In
acquiring such services and executive agency shall --
(A) Encourage firms engaged in the lawful practice of
their profession to submit annually a statement of qualifications
and performance data. The contracting officer, for each proposed
project, shall evaluate current statements of qualifications and
performance data on file with the agency together with those that
may be submitted by other firms regarding the proposed project,
shall conduct discussions with no less than three firms regarding
anticipated concepts and the relative utility of alternative
methods of approach for furnishing the required services, and
then shall select therefrom in order of preference, based on
criteria established and published, no less than three firms
considered to be the most highly qualified to provide the
services required.
(B) award a contract with to highest qualified firm
for architectural and engineering services at compensation which
the agency head determines is fair and reasonable to the United
States. In making that determination, the agency shall take into
account the estimated value, scope, complexity, and professional
nature of the service to be rendered.
(2) If the contracting officer cannot negotiate a
satisfactory contract with the firm considered to be the most
qualified, at a price the contracting officer determines to be
fair and reasonable to the United States, the contracting officer
shall terminate those negotiations. The contracting officer shall
then undertake to conclude a contract with the second most
qualified firm. Failing accord with the second most qualified
firm, the agency shall terminate negotiations. The agency shall
then undertake negotiations with the third most qualified firm.
(3) If the contracting officer cannot negotiate a
satisfactory contract with any of the selected firms, it shall
select additional firms in order of their competence and
qualification and continue negotiations in accordance with this
section until an agreement is reached.
*Section SO1 "Commercial Product Acquisition Procedures" will be distributed
separately for clearance.
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Professional Services
Section 503. (a) Optional procedures may be used for
Acquisition of highly complex professional services.
(1) For services that can only be broadly defined, require a
high degree of innovation, and where the most highly qualified
firm is desired, the following process shall be followed:
(A). The contracting officer shall provide for
publication of the requirement for the desired
service as set forth in Section 405 above and
request that all interested firms and persons
submit specific professional qualifications and
performance data. The qualifications and
performance data will tailored to the requirement
of the particular service to be performed. The
data will be evaluated against the selection
criteria provided in the publication of the
requirement.
(B).?The contracting officer shall evaluate all
statements, of qualification and performance data
received and shall conduct discussions with no
less than three firms regarding anticipated
concepts and the relative utility of proposed
methods and approaches for furnishing the requited
services. The contracting officer shall select, in
order of preference, based upon the published
criteria, no less than three firms deemed most
highly qualified to provide the services to be
acquired.
(C). The contracting officer shall negotiate a
contract with the highest qualified firm for the
services required at compensation which the
contracting officer determines is fair and
reasonable to the Government. In making such
determination, the contracting officer shall take
into consideration the estimated value of the
service to be rendered, the scope, complexity, and
professional nature thereof.
(D). Should the contracting officer be unable to
negotiate a satisfactory contract with the firm
considered to be most highly qualified, at a price
the contracting officer determines to be fair and
reasonable to the Government, negotiations with
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that firm shall be formally terminated. The
contracting officer shall then undertake
negotiations with the second highest qualified
firm. Failing accord with the second most highly
qualified firm, the contracting officer shall
terminate negotiations. The contracting officer
shall then undertake negotiations with the third
most qualified firm.
(E). Should the contracting officer be unable to
negotiate a satisfactory contract with any of the
three selected firms, the contracting officer
shall select additional firms in order of their
competence and qualification and continue until
negotiation until an agreement is reached.
(b) The term "highly complex services" shall be defined in
regulation established in accordance with Section 1300 of this
Act.
Rights in Technical Data
Section 601 (a) The interests of the United States and of a
Contractor in technical data shall be defined in regulations
issued pursuant to section 1300 of this Act.
(b) Such regulations shall ensure to the maximum extent
practicable, that the Government will promote the commercial
application of Federally funded research by permitting all
contractors regardless of size to retain the rights to technical
data developed under a government contract, in exchange for
royalty free use of such data by or on behalf of the Government.
(c) Those regulations are not intended to impair any right of the
United States or any contractor with respect to patents or
copyrights.
Validation of Technical Data Restrictions
Section 602 (a) The regulations prescribed in accordance
with Section 1300 shall contain procedures for prompt resolution
of disputes concerning restrictions asserted by contractors or
subcontractors on the right of the United States to use technical
data required to be delivered under contracts for property or
service.
(b) Those regulations shall provide at a minimum that---
(1) a contractor or subcontractor at any tier shall be
prepared to furnish to the contracting officer a
written justification and supporting data for any
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restriction asserted by the contractor or subcontractor
on the right of the United States to use the technical
data; and
(2) the contracting officer shall review the validity
of any restriction and render a decision thereon.
(c) A decision by the contracting officer under subsection
under (b)(2) may be appealed by the contractor or subcontractor
in accordance with the requirements of the Contract Disputes Act
of 1978 (41 U.S.C. 601 et. seq.)
Truth in Negotiations
Section 701. Cost or pricing data.
(a) Required Cost or pricing Data and Certification.
(1) The contracting officer shall require offerors,
contractors and subcontractors to make cost or pricing data
available as follows:
(A) An offeror for a prime contract to be entered into
using procedures other than sealed bid procedures shall
be required to 'submit cost or pricing data before the
award of the contract if the price is expected to
exceed $100,000.
(B) The contractor for a contract shall be required to
submit cost or pricing data before the pricing of a
change qr modification to the contract if the price
adjustment is expected $100,000 (or such lesser amount
as may be prescribed by the contracting officer).
(C) An offeror for a subcontract (at any tier) under a
contract with the United States shall be required to
submit cost or pricing data before the award of a
subcontract if--
(i) the price of the subcontract is expected to
exceed $100,000: and
(ii) the prime contractor and each higher tier
subcontractor have been required to make available
cost or pricing data under this section.
(D) The subcontractor for a subcontract covered by
subparagraph (C) shall be required to submit cost or
pricing data before the pricing of a change or
modification of the subcontract if the price adjustment
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e
is expected to exceed $100,000 (or such lesser amount
as may be prescribed by the contracting officer).
(2) A person required, as an offeror, contractor, or
subcontractor, to submit cost or pricing data under
paragraph (1) (or required by the head of the agency
concerned to submit such data under subsection (c)
shall be required to certify that, to the best of the
person's knowledge and belief, the cost or pricing data
submitted are accurate, complete, and current.
(3) Cost or pricing data required to be submitted under
paragraph (1) (or under subsection (c)), and a certification
required to be submitted under paragraph (2), shall be
submitted--
(A) in the case of a submission by a prime contractor
(or an offeror for a prime contract) to the contracting
officer for the contract (or to the designated
representative of the contracting officer); or
(B) in the case of a submission by a subcontractor (or
an offeror for a subcontract), to the prime contractor.
(4) Except as provided under subsection (b), this section
applies to contracts entered into by the contracting officer
on behalf of a foreign government.
(5) The contracting officer may waive the requirement under
this subsection for a contractor, subcontractor, or offeror
to submit cost or pricing data. For purposes of paragraph
(1) (C) (ii), a contractor or subcontractor granted a waiver
shall be considered as having been required to make
available cost or pricing data under this section.
(b) Exceptions.-- This section need not apply to a contract
or subcontract--
(1) for which the price agreed upon is based on--
(A) adequate price competition;
(B) established catalog or market prices of
commercial items sold in substantial quantities to
the general public; or
(C) prices set by law or regulation; or
(2) in an exceptional case when the head of the agency
determines that the requirements of this section may be
waived and states in writing the reasons for such
determination.
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(c) Authority To Require Cost or Pricing Data.-- When cost
or pricing data are not required to be submitted by
subsection (a), such data may nevertheless be required to be
resubmitted by the contracting officer if the contracting
officer determines that such data are necessary for the
evaluation of the reasonableness of the price of the
contract or subcontract.
(d) Price Reduction for Defective Cost or Pricing Data.--
(1)(A) A prime contract (or change or modification to a
prime contract) under which a certificate under
subsection (a)(2) is required shall contain a provision
that the price of the contract to the United States,
including profit or fee, shall be adjusted to exclude
any significant amount by which it may be determined by
the contracting officer that such price was increased
because the contractor (or any subcontractor required
to make available such certificate) submitted defective
cost or pricing data.
(B) For the purposes of this section, defective cost or
pricing data are cost and pricing data which, as of the
date of agreement on the price of the contract (or
another date agreed upon between the parties) were
inaccurate, incomplete, or noncurrent. If for purposes
of the preceding sentence the parties agree upon a date
other than the date of the agreement on the price of
the contract, the date agreed upon shall be as close to
the date of agreement on the price. of the contract as
is practicable.
(2) In determining for purposes of a contract price
adjustment under a contract provision required by
paragraph (1) whether, and to what extent, a contract
price was increased because a contractor(or a
subcontractor) submitted defective cost or pricing
data, it shall be a defense that the United States did
not rely on the defective data submitted by the
contractor or subcontractor.
(3) It is not a defense to an adjustment of the price
of a contract under a contract provision required by
paragraph (1) that--
(A) the price if the contract would not have been
modified even if accurate, complete, and current
cost or pricing data had been submitted by the
contractor or subcontractor because the contractor
or subcontractor-
(i) was the sole source of the property or
service procured; or
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(ii) otherwise was in a superior bargaining
position with respect to the property or
service procured;
(B) the contracting officer should have known that
the cost or pricing data in issue were defective
even though the contractor or subcontractor took
no affirmative action to bring the character of
the data to the attention of the contracting
officer;
(C) the contract was based on an agreement between
the contractor and the United States about the
total cost of the contract and there was no
agreement about the cost of each item procured
under the contract; or
(D) the prime contractor or subcontractor did not
submit a certification of cost or pricing data
relating to the contract as required under
subsection (a)(2).
(4)(A) A contractor shall be allowed to offset an
amount against the amount of a contract price
adjustment under a contract provision required by
paragraph (1) if--
(i) the contractor certifies to the contracting
officer (or to the designated representative of
the contracting officer) that, to the best of the
contractor's knowledge and belief, the contractor
is entitled to the offset; and
(ii) the contractor proves that the cost or
pricing data were available before the date of the
agreement on the price of the contract (or price
of the modification) and that the data were not
submitted as specified in subsection (a)(3) before
such date.
(B) A contractor shall not be allowed to offset an
amount otherwise authorized to be offset under
subparagraph(A) if-
(i) the certification under subsection (a)(2)with
respect to the cost or pricing data involved if it
was known to be false when signed; or
(ii) the United States proves that, had the cost
or pricing data referred to in subparagraph
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(A)(ii) been submitted to the United States before
the date of agreement on the price of the contract
(or the price of the modification), the submission
of such cost or pricing data would not have
resulted in an increase in that price in the
amount of the offset.
(e) Interest and Penalties for Certain Overpayments-
(1) If the United States makes an over payment to a
contractor under a contract subject to this section and
the overpayment was due to the submission by the
contractor of defective cost or pricing data, the
contractor shall be liable to the United States--
(A) for interest on the amount of such overpayment, to
be computed-
(i) for the period beginning on the date the
overpayment was made to the contractor and ending
on the date the contractor repays the amount of
such overpayment to the United States; and
(ii) at the current rate prescribed by the
Secretary of the Treasury under section 6621 of
the Internal Revenue Code of 1954; and
(B) if the submission of such defective data was a
knowing submission, for an additional amount equal to
the overpayment.
(2) Except as provided under subsection (d), the
liability of contractor under this subsection shall
not be affected by the contractor's refusal to submit
certification under subsection (a)(2) with respect to
the cost or pricing data involved.
(f) Right of the United States to Examine Contractor
Records--
(1) For the purpose of evaluating the accuracy,
completeness, and currency of cost or pricing data
required to be submitted by this section with respect
to a contract of subcontract, the head of the agency
acting through any authorized representative of the
head of the agency who is an employee of the United
States or a member of the armed forces, shall have the
right to examine all records of the contractor or
subcontractor related to--
(A) the proposal for the contract or subcontract;
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(B) the discussions conducted on a proposal;
(C) pricing of the contract or subcontract; or
(D) performance of the contract or subcontract.
(2) The right of the head of the agency under paragraph
(1) shall expire three years after final payment under
the contract or subcontract.
(3) In this subsection, the term "record"
1-d rWxi)% dux ad dhr d#a.
Commercial Pricing for Spare or Repair Parts
Section 702. (a) LIMITATION ON PRICE OF COMMERCIALLY
AVAILABLE PARTS.-- Except in the case of an offer submitted with
a written statement under subsection (b)(2) and except as
provided in subsection (c), if the contracting officer, using
procedures other than competitive procedures, enters into a
contract with a contractor for the purchase of spare or repair
parts which the contractor also offers for sale to the general
public, the price charged the United States for such parts under
the contract may not exceed the lowest commercial price charged
by the contractor in sales of such parts during a period
described in subsection (b)(1).
(b) REQUIREMENTS FOR INCLUSION IN OFFER.-The contracting
officer, with respect to an offeror who submits an offer to the
head of an agency to enter into a contract for the supply of
spare or repair parts under a contract awarded using procedures
other than competitive procedures, and who also offers such parts
for sale to the general public, shall require that the offeror-
(1) certify in such offer that, to the best of the
knowledge and belief of the offeror, the price proposed
in the offer does not exceed the lowest commercial
price at which such offeror sold such parts during the
most recent regular monthly, quarterly, or other period
for which sales data are reasonably available; or
(2) submit with such offer a written statement-
(A) specifying the amount of the difference
between the price proposed in the offer and
the lowest commercial price at which such
offeror sold such parts during a period
described in paragraph (1); and
(B) providing a justification for that
difference.
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(c) EXCEPTION TO LIMITATION.-Subsections (a) and (b) do not
apply in the case of a contract with respect to which
the contracting officer includes in the file on the
contract a written determination by such officer that
the use of the lowest commercial price with respect to
such contract is not appropriate because of-
(1)
(2)
national security considerations; or
significant differences between the terms of the
commercial sales of the parts to be acquired under
such contract and the terms of such contract,
including differences in-
(A) quantity;
(B) quality;
(C) delivery requirements; or
(D) other terms and conditions.
(d) AUDITING.-(l) In order to verify any certification or
statement made under subsection (b) with respect to a
contract, the contracting officer who awards such
contract. (or any representative of the contracting
officer who is an employee of the United States of a
member of the armed forces), during the time period
specified in paragraph (2), may examine and audit all
records of sales (including contract terms and
conditions) maintained by or for the contractor that
are directly pertinent to sales by the contractor of
spare or` repair parts identical to those covered by the
contract during the period covered by such
certification or statement.
(2) The contracting officer shall require an offeror
who submits a certification or written statement
under subsection (b) to make available the
records, books, data, and documents described in
paragraph (1) for examination, audit, or
reproduction for the purposes of such paragraph
during the three-year period beginning on the date
that the offeror submits such certification or
statement to such head of an agency.
(3) The authority provided by this subsection is in
addition to the authority of the head of an agency
under section 701 of this Act.
(e) The regulations issued pursuant to Section 1300 shall
prescribe procedures for carrying out this Section.
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(f)
Such regulations may not require the disclosure or
submission of any data related to any element
underlying the price of a commercial product not
otherwise required by law.
DEFINITIONS.-In this section:
The term "spare or repair part" means any
individual piece, part, subassembly, or component
which is furnished for the logistic support or
repair of an end item and not as an end item
itself.
(1)
(2) The term "lowest commercial price" means the
lowest price at which a sale was made to the
general public of a particular part. Such term
does not include the price at which a sale was
made-
(A) to any agency of the United States;
(B) to any person for resale by such person after
such person performs a service or function in
connection with such part that increases the
cost of the part, unless the agency procuring
the part can demonstrate that the agency is
procuring the part before such service or
function has been performed by any such
person;
(C)
to a subsidiary, affiliate, or parent
business organization of the contractor, or
any other branch of the same business entity;
(D) to any person at a price that, for the
purpose of making a donation, has been
substantially discounted below the fair
market value or regular price of such part;
or
(E) to a customer located outside the United
States.
(g) APPLICABILITY.-This section does not apply to a
contract entered into using simplified small purchase
procedures established under Section 409 of this Act.
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Prohibition of Contractors Limiting Subcontractor Sales
Directly to the United States
Section 703 (a) Each contract for the purchase of property
or services made by an agency subject to this Act shall provide
that the contractor shall not --
(1) enter into an agreement with the subcontractor under the
contract that has the effect of unreasonably restricting
sales by the subcontractor directly to the United States of
any item or Process (including computer software) made or
furnished under the contract (or any follow-on production
contract); or
(2) otherwise act to restrict unreasonably the ability of a
subcontractor to make sales to the United States described
in clause (1).
(b) This section does not prohibit a contractor from
asserting rights it otherwise has under law.
Multi-Year Contracting
Section 801. (a) the head of an executive agency may
enter into multi-year contracts not to exceed five years of
requirements for the purchase of property and five years duration
for services whenever such official finds that--
(1). There will .be a continuing minimum
requirement for the property or services at a
relatively constant rate and quantity;
(2). the furnishing of property or services will
require a substantial initial investment in plant,
equipment, training, or transportation;
(3). the use of multi-year is likely to be more
cost effective compared to contracts awarded
within the constraints of available
appropriations; and
(4). the use of such a contract will encourage
full and open competition, including competition
among contractors, vendors, and suppliers, and
promote economies of operation.
(b). Contracts made under this subsection may be used
for the advance acquisition of components, parts, and
materials, and contracts may be made under this
subsection for advance acquisition, if feasible and
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practical in order to achieve economic-lot purchases
and more efficient production rates.
(c). Regulations to implement this section shall be
prescribed in accordance with section 1300 of this Act.
Such regulations may provide for cancellation
provisions in multi-year contracts to the extent that
those provisions are necessary and in the best interest
of the United States. Cancellation provisions may
include consideration of both recurring and
nonrecurring costs of the contractor associated with
contract performance.
(d). In the event funds are not appropriated or made
available for continuation into any year subsequent to
contract award, the contract shall be cancelled or
terminated, and the costs of cancellation or
termination may be paid from--
(i). appropriations originally available for
performance of the contract;
(ii). appropriations currently available for
acquisition of the type of property or services
concerned, and not otherwise obligated; or
(iii). funds appropriated for those payments.
(e). The head of the executive agency concerned shall
notify in writing the Committees on Appropriation of
the House of Representatives and the Senate and the
appropriate oversight committee for that agency 30 days
before award of any contract containing a cancellation
ceiling in excess of $100 million.
Contract Financing
Section 901 Advance Payments
(a) The head of an agency may (1) make advance,
partial, progress, or other payments for property or
services. Those payments may nor exceed the unpaid
contract price.
(b) Advance payments may be made only if the
contractor gives adequate security and after a
defemination by the head of the agency that to do so
would be in the public interest. Such security may be
in the form of a lien in favor of the United States on
the property contracted for, on the balance in an
account in which such payments are deposited, and on
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such of the property acquired for performance of the
contract as the parties may agree. This lien is
paramount to all other liens.
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not required-
(1) where the contractor or subcontractor is a
foreign government or agency thereof or is precluded by the
laws of the country involved from making its books,
documents, papers, or records available for examination; and
(2) where the head of the agency determines, after
taking into account the price and availability of the
property or services from United States sources, that the
public interest would be best served by not applying
subsection (b). If subsection (b) is not applied to a
contract or subcontract based on a determination under clause
(2), a written report shall be furnished to the Congress.
(d) (1) The Director of the Defense Contract Audit
Agency (or any successor agency) may require by subpoena the
production of books, documents, papers, or records of a
contractor, access to which is provided to the ** Secretary
of Defense by subsection (a) or by section 2306a** of this
title.
(2) Any such subpoena, in the case of contumacy or
refusal to obey, shall be enforceable by order of an
appropriate United States district court.
(3) The authority provided by paragraph (1) may not
be redelegated.
(4) The Director (or any successor official) shall
submit an annual report to the Secretary of Defense on the
exercise of such authority during the preceding year and the
reasons why such authority was exercised in any instance.
The Secretary shall forward a copy of each such report to the
Committees on Armed Services of the Senate and House of
Representatives.
Encouraging New Competitors
Section 905 (a)? In this section, "qualification
requirement means the United States requirement for testing
or other quality assurance demonstration that must be
completed before contract award. Except as provided by
section 501 --
(b) Prior to establishing a qualification requirement,
the contracting officer shall---
(1) specify in writing and make available to a
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Delegation
Section 902 Except as provided in section 404 of this
Act, the head of an agency may delegate, subject to his
direction, to any other officer or official of that agency,
any power under this chapter.
Remission of liquidated damages
Section 903 Upon the recommendation of the head of an
agency, the Comptroller General may remit all or part, as he
considers just and equitable, of any liquidated damages
assessed for delay in performing a contract, made by that
agency, that provides for such damages.
Examination of books and records of contractor
Section 904 (a) An agency as defined in section 301 of
this Act is entitled, through an authorized representative,
to inspect the plant and audit the books and records of-
(1) a contractor performing a cost or cost-plus-a-
fixed-fee contract made by that agency under this chapter;
and
(2) a subcontractor performing any subcontract
under a cost or cost-plus-a-fixed-fee contract made by that
agency under this chapter.
(b) Except as provided in subsection (c), each contract
awarded after using procedures other than sealed-bid
procedures shall provide that the Comptroller General and his
representatives are entitled, until the expiration of three
'years after final payment, to examine any books, documents,
papers, or records of the contractor, or any of his
subcontractors, that directly pertain to, and involve
transactions relating to, the contract or subcontract.
(c) Subsection (b) does not apply to a contract or
subcontract with a foreign contractor or foreign
subcontractor if the head of the agency determines, with the
concurrence of the Comptroller General or his designee, that
the application of that subsection to the contract or
subcontract would not be in the public interest. However,
the concurrence of the Comptroller General or his designee is
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potential offeror upon request all requirements that a
prospective offeror, or its product of service, must satisfy
in order to become qualified; and
(2) specify an estimate of the costs of testing and
evaluation likely to be incurred by a potential offeror in
order to become qualified;
(c) the contracting officer shall-
(1) ensure that a potential offeror is provided,
upon request and at its expense, a prompt opportunity to
demonstrate its ability to meet the standards specified in
the qualification; and
(2) ensure that qualification requirements of
subsection (b)(1) are kept current.
(d) If the number of qualified sources or qualified
products available to compete actively for anticipated future
requirements is fewer than two actual manufacturers,
respectively, the contracting officer concerned, at his sole
discretion, may bear the cost of conducting the specified
testing and evaluation for small business concerns (excluding
costs associated with producing the item or establishing the
production, quality control, or other system to be tested and
evaluated). The cost may be borne only if the contracting
officer determines that the concerns attempting to qualify
are likely to succeed and the additional qualified sources or
products are likely to result on cost savings from increased
competition for future requirements sufficient to amortize
the costs incurred by the agency within a reasonable period
of time considering the duration and dollar value of
anticipated future requirements.
(e) A proposed acquisition need not be delayed to comply
with this section.
Assignment and Delegation of
Acquisition Functions and Responsibilities
Section 906 To facilitate the acquisition of property and
services covered by this Act by any agency for any other
agency, and to facilitate joint acquisition by any agencies--
(a) the heads of two or more agencies may by agreement
delegate acquisition functions and assign acquisition
responsibilities from one executive agency to another of
those agencies or to an officer or a civilian employee of
another of those executive agencies; and
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(b) the heads of two or more agencies may create joint or
combined offices to exercise acquisition functions and
responsibilities.
Allocation of Appropriations
Section 907 (a) Appropriations available for acquisition by
an agency may, through administrative allotment, be made
available for obligation for acquisition by any other agency
in amounts authorized by the head of the allotting agency and
without transfer of funds on the books of the Department of
the Treasury.
(b) A disbursing official of the allotting agency may make
any disbursement chargeable to an allotment under subsection
(a) upon voucher certified by an officer or employee of the
acquiring agency.
Socioeconomic Provisions
Section 1000 (a) In order to promote economy and
efficiency in contracting the following statutory provisions
shall apply only to acquisitions which exceed $25,000 or the
amount established pursuant to section 1100 for simplified
small purchases.
(1) The Walsh-Healey Public Contracts Act (41 U.S.C. 35)
(2) Section 2010 of title 38, United States Code (the
Vietnam Era Veterans Readjustment Act)
(3) The Rehabilitation Act of 1973 (29 U.S.C. 793)
(4) The Solid Waste Control Act (42 U.S.C. 6962)
(b) To Promote economy and efficiency in the acquisition
of services or construction, repair and maintenance of
facilities, the following thresholds apply:
(1) For the Department of Defense and National
Aeronautics and Space Administration, the provisions of
the Davis-Bacon Act, (40 U.S.C. 276a to 276a-5) and the
provisions if the Service Contract Act, (41 U.S.C. 351
to 358) apply to procurement of $1 million and above or
the amount established pursuant to section 1100 of this
Act.
(2) For executive agencies other than the Department of
Defense and National Aeronautics and Space
Administration, the provisions of the Davis-Bacon Act
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(40 U.S.C. 276a to 276a-5) and the provisions of the
Service Contract Act (41 U.S.C. 351 to 358) shall apply
to procurement of $100,000 and above or the amount
established pursuant to section 1100 of this Act.
Small Business
Section 1001. (a). Policy. It is the policy of the
United States that small and small disadvantaged business
shall have the maximum practicable opportunity to participate
in the performance of federal contracts and subcontracts.
(b)(1) Awards to small business. Small business
concerns, as defined by the Administrator of the
Small Business Administration, shall receive any
contract as to which it is determined by the Small
Business Administration and the contracting officer
to be in the interest of assuring that a fair
proportion of the total purchases and contracts for
property and services for the government are placed
with small business concerns that can provide the
property or service. These determinations to set-
aside an acquisition may be made for individual
contracts or for classes of contracts. Whenever the
Small- Business Administration and contracting
officer fail to agree, the matter shall be
submitted to the head of the executive agency by
the Administrator of the Small Business
Administration.
(2) When making contract awards under small
business set-asides, contracting officers shall;
(A) ensure that the award of a contract would
not result in a cost to the Government which
exceeds a fair market price; and,
(B) ensure that the small business concern
awarded a contract as result of a set-aside
will;
(i) in the case of a contract for
services (except construction), perform
at least 50% of the cost of the contract
with its own employees; and
(ii) in the case of a contract for
procurement of supplies (other than
procurement from a regular dealer in such
supplies who shall be required to offer
the product of a small business), perform
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work for at least 50% of the cost of
manufacturing the supplies (not including
the cost of material).
(C) The contracting officer, after
consultation with the Small Business
Administration, may change the percentage
under subparagraph (i) or (ii) above with
respect to a solicitation to reflect
conventional industry practice.
(c) Small purchase procedures. Each contract for the
acquisition of property or services which is subject to
small purchase procedures established pursuant to
section 408 of this Act, shall be set-aside exclusively
for small business concerns. The set-aside shall be
dissolved if the contracting officer does not receive
offers from two or more small business concerns which
offer competitive prices and meet required terms of
quality and delivery.
(d) Subcontracting plans. Before the award of any
contract or contract modification in excess of $1
million, the contracting officer shall;
(1) determine that the offerer has established for
its entire organization, or for the suitable
subdivision thereof or for the specific contract, a
small and small disadvantaged business
subcontracting plan which is applicable to the
contract; and
(2) approve the plan, or determine that the plan
has been approved by a contracting officer within
the previous twelve months as offering the maximum
practical opportunity for small business and small
disadvantaged business subcontracting or reject
the plan as insufficient under the instant
contract; and
(3) incorporate such plan into the contract. The
plan may be incorporated by reference.
(e) Subsection (d) does not apply--
(1) to offerors who are small businesses; or
(2) to any contract which, including all
subcontracts, will be performed outside the
United States, the District of Columbia, or
the Commonwealth of Puerto Rico.
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(f)
(g)
Regulations to implement this Section shall be in
accordance with Section 1300 of this Act. Such
regulations shall specify the matters to be
addressed by small and small disadvantaged business
subcontracting plans, and the manner in which the
determinations required by subsection (d) shall be
made.
The contracting officer shall consider the failure
of a contractor to comply with an annual
subcontracting plan or the plan for a prior
contract in the determination of contractor
responsibility and in the negotiation of profit
and fees.
(h) A contracting officer shall not be required to
refer determinations of nonresponsibility to the
Small Business Administration as required by
Section 8 of the Small Business Act (15 U.S.C.
637(b)) when the next low responsive, responsible
offeror is a small business concern or when the
proposed contract is a small purchase as defined in
Section 409 of this Act.
Adjustment of Dollar Thresholds
Section 1100 (a) The Administrator for Federal
Procurement Policy, after consultation with the Secretary of
Defense, The Administrator of General services, and the
Administrator of the National Aeronautics and Space
Administration shall, at least every three years after
enactment of this Act, review the dollar thresholds
established by this Act.
(b) In such review the Administrator for Federal
Procurement Policy shall consider prevailing cost as
reflected in selected economic indices, the nature of the
products and services to be procured, as well as other
relevant factors.
(c) After such review the Administrator may, no more
frequently than annually, make adjustments in thresholds as
are determined to be appropriate. If such an adjustment
exceeds 25% of the existing threshold the Administrator shall
notify the Congress at least 60 days prior to the effective
date of the adjustment. The notice to the Congress shall
include a report detailing the basis for the adjustment and
an explanation as to the manner in which the adjustment will
promote the economy and efficiency of federal acquisitions.
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Safeguard of Acquisition Information
Section 1200. (a) Contractor information, including
commercial or financial information--
(1) pertaining to a company or individual,
(2) submitted by such company or individual to an
agency as part of the procurement process conducted
by the agency, and
(3) designated as confidential by the company or
individual at the time of submission; or
(4) technical data for which the Government has
obtained royalty free use for Governmental purposes
but for which the exclusive commercial rights have
been awarded to a contractor.
shall be exempt from the provisions of The Freedom of
Information Act ( 5 USC 552 ) and shall be kept in
confidence by the agency. No such information shall be
disclosed by the agency without the authority of the
submitting company or individual.
(b) Unless a protest has been lodged regarding a
solicitation or the award of a contract, upon the
request of an offeror, not awarded a contract,
information which the offeror provided to an agency in
response to a solicitation shall be returned within 120
days after t~e award of a contract resulting from that
solicitation. The offeror shall, bear the cost of
returning such information.
Regulations
Section 1300 (a) Subject to the overall policy direction
of the Administrator for Federal Procurement Policy an the
authority of the Administrator pursuant Section 6 of the
Office of Federal Procurement Policy Act, ( 41 USC 405), and
with due regard to the program activities of the executive
agencies, the Administrator of General Services, the
Secretary of Defense, and the Administrator of National
Aeronautics and Space Administration jointly shall --
(1) prescribe the Federal Acquisition Regulation
which shall be consistent with the policies and procedures
set forth in this Act and which shall be followed by the
executive agencies in the acquisition of property and
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services;
(2) in consultation with the Administrator for
Federal Procurement Policy, establish a management system for
the maintenance of the regulations.
(b) Each executive agency may after prescribe
regulations which implement and supplement the government
wide regulation.
Publication of Proposed Regulations
Section 1400 Except as provided in subsection (d), no
acquisition policy, regulation, procedure, or form (including
amendments or modifications thereto) relating to the
expenditure of appropriated funds that has (I) a significant
effect beyond the internal operating procedures of the agency
issuing the acquisition policy, regulation, procedure of
form, or (2) a significant cost or administrative impact on
contractors or offerors, may not take effect until 30 days
after the acquisition policy, regulation procedure, or form
is published for public comment in - the Federal Register
pursuant to subsection (b).
(a) Subject to subsection (c), the head of the agency
shall cause to be published in the Federal Register a notice
of the proposed acquisition policy, regulation, procedure, or
form and provide for a public comment period for receiving
and considering the views of all interested parties on such
proposal. The length of such comment period may not be less
than 30 days.
(b) Any notice of a proposed acquisition policy,
regulation, procedure, or form prepared for publication in
the Federal Register shall include-
(1) the text of the proposal or if it is
impracticable to publish the full text of the proposal, a
summary of the proposal and a statement specifying the name,
address, and telephone number of the officer of employee of
the executive agency from whom the full text may be obtained;
and
(2) a request for interested parties to submit
comments on the proposal and shall include the name and
address of the officer or employee of the Government
designated to receive such comments.
(c) (1) The requirements of subsections (a) and (b)
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may be waived by the officer authorized to issue an
acquisition policy, regulation, procedure, or form if urgent
and compelling circumstances make compliance with such
requirements impracticable.
(2) An acquisition policy, regulation, procedure,
or form with respect to which the requirements of subsections
(a) and (b) are waived under paragraph (1) shall be effective
on a temporary basis if-
(A) a notice of such acquisition policy,
regulation, procedure, of form is published in the Federal
Register and includes a statement that the acquisition
policy, regulation, procedure, or form is temporary; and
(B) provision is made for a public comment
period of 30 days beginning on the date on which the notice
is published.
After considering the comments received, the head of the
agency waiving the requirements of subsections (a) and (b)
under paragraph (1) may issue the final acquisition policy,
regulation, procedure of form:"
(d) The procedures required subsection (a) shall apply
with respect to acquisition policies, regulations,
procedures, or forms that an agency issues in final form on
or after the date which is 30 days after the date of
enactment of this Act.
Applicability of Existing Acquisition Authority
Section 1500 (a) Section 3709, 3710, and 3735 of the
Revised Statutes, shall not apply to the acquisition of
property or services made by an executive agency pursuant to
this Act. Any law which authorizes an executive agency to
acquire property or services without advertising or without
regard to those section shall be construed to authorize the
acquisition of the property of services pursuant to the
provisions of this title relating to procedures other than
sealed-bid procedures.
(b) Nothing in this Act shall impair or affect any
authority of--
(1) the President under the Philippine Property
Act of 1946 (60 Stat. 418; 22 U.S.C. 1381);
(2) any executive agency with respect to any,
phase (including, but not limited to, acquisition storage,
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transportation, processing and disposal) of any program
conducted for purposed of resale, price support, grants to
farmers, stabilization, transfer to foreign governments, or
foreign aid, relief, or rehabilitation: Provided, that the
agency carrying out such program shall, to the maximum extent
practicable, consistent with the fulfillment of the purposes
of the program and the effective and efficient conduct of its
business, coordinate its operations with the requirements of
this Act and the policies and regulations prescribed pursuant
thereto;
(3) the Department of Defense with respect to
property required for or located in occupied territories;
(4) the Secretary of Defense with respect to the
Administration of the National Industrial Reserve Act of
1948;
(5) the President with respect to the
Administration of the Strategic and Critical Materials Stock
Piling Act (60 Stat. 596);
(6) the Secretary of State under the Foreign
Service Buildings Act of May 7, 1926; as amended;
(7) the Secretary of the Army, the Secretary of
the Navy, and the Secretary of the Air Force with respect to
the administration of section 1(b) of the Act entitled "An
Act to expedite the strengthening of the national defense",
approved July 2, 1940 (54 Stat. 712);
(8) the Secretary of Agriculture or the Department
of Agriculture under (A) the National School Lunch Act (60
Stat. 230); (B) the Farmers Home Administration Act of 1946
(60 Stat. 1062); (C) the Act of August 31, 1947, Public Law
298, Eightieth Congress, with respect to the disposal of
labor supply centers, and labor homes, labor camps, or
facilities; (D) section 32 of the Act of August 24, 1935 (49
Stat. 774), as amended, with respect to the exportation and
domestic consumption of agricultural products; or (E) section
201 of the Agricultural Adjustment Act of 1938 (52 Stat. 36)
or section 203(j) of the Agricultural Marketing Act of 1946
(60 Stat. 1082);
(9) the Secretary of Agriculture, Farm Credit
Administration, or any farm credit board under section 6(b)
of the Farm Credit Act of 1937 (50 Stat. 706), with respect
to the acquisition or disposal of property;
(10) the Department of Housing and Urban
Development or any officer thereof with respect to the
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disposal of residential property, or of other property (real
or personal) held as.part of or acquired for or in connection
with residential property, or in connection with the
insurance or mortgages, loans, or savings and loan accounts
under the National Housing Act;
(11) the Tennessee Valley Authority with respect to
nonpersonal services, with respect to the matters referred to
in section 201(a) (4), and with respect to any property
acquired or to be acquired for in connection with any program
of processing, manufacture, production, or force account
construction: Provided, that the Tennessee Valley Authority
shall be the maximum extent that it may deem practicable,
consistent with the fulfillment of the purpose of its program
and the effective and efficient conduct of its business,
coordinate its operations with the requirements of this Act
and the policies and regulations prescribed pursuant thereto:
(12) the Department of Energy' with respect to the
functions transferred from the Atomic Energy Commission.
(13) the Administrator of the Federal Aviation
Agency or the Chief of the Weather Bureau with respect to the
disposal of airport property and airway property for use as
such property. For the purpose of this paragraph the terms
"airport property" and "airway" shall have the respective
meanings ascribed to them in the International Aviation
Facilities Act (62 Stat. 450);
(14) The United States Postal Service;
(15) the Secretary of Commerce with respect to the
construction, reconstruction, and reconditioning (including
outfitting and equipping incident to the foregoing), the
acquisition, operation, maintenance, preservation, sale,
lease, or charter of any merchant vessel or of any shipyard,
ship site, terminal, pier, dock, warehouse, or other
installation necessary or appropriate for the carrying out of
any program of such Commission authorized by lay, or
nonadministrative activities incidental thereto: Provided,
that the Secretary of Commerce shall to the maximum extent
that it may deem practicable, consistent with the fulfillment
of the purposes of such programs and the effective and
efficient conduct of such activities, coordinate its
operations with the requirements of this Act, and the
policies and regulations prescribed pursuant thereto;
(16) the Central Intelligence Agency;
(17) the joint Committee on Printing, under the Act
entitled "An Act providing for the public printing and
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binding and the distribution of public documents" approved
January 12, 1895 (28 Stat. 601), as amended or any other Act;
(18) for such period of time as the President may
specify, any other authority of any executive agency which
the President determines within one year after the effective
date of this Act should, in the public interest, stand
unimpaired by this Act; or
(19) the Secretary of Energy with respect to
procurement for program operations under the Bonneville
Project Act of 1937 (50 Stat. 731), as amended.
(c) No provision of this Act, as amended, shall apply
to the Senate or the House of Representatives (including the
Architect of the Capital and any building, activity, or
function under his direction), but any of the services and
facilities authorized by this Act to be rendered or furnished
shall, as far as practicable, be made available to the
Senate, the House of Representatives, or the Architect of the
Capitol upon their request, and, if payment would be required
for the rendition or furnishing or a similar service or
facility to an executive agency, payment therefor shall be
made by the recipient thereof, upon presentation of proper
vouchers, in advance or by reimbursement (as may be agreed
upon by the Administrator and the officer or body making such
request). Such payment may be credited to the applicable
appropriation of the executive agency receiving such payment.
TRANSITIONAL PROVISIONS
Section 1600'(a) The provisions of this Act shall be
effective 365 days after its enactment.
(b) All orders, determinations, rules, regulations,
permits, contracts, licenses, and privileges which are in
effect at the time this Act takes effect shall continue in
effect according to their terms until modified, terminated,
superseded, set-aside, or revoked by authorized officials, a
court of competent jurisdiction, or by operation of law.
APPLICABILITY OF SUBSEQUENT LAWS
Section 1700 A law enacted after the date of enactment
of this Act, including any limitations in any appropriation
bill or any limitation of any provision authorizing the
appropriation of funds, may not be held, considered, or
construed as amending any provision of this Act, unless that
law does so by specifically and explicitly amending or
superseding a specific and separately referenced provision of
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this Act.
SEPARABILITY
Section 1800 If any provision of this Act or its
application to any person or circumstances is held invalid,
neither the remainder of this Act nor the application of that
provision to other persons or circumstances shall be affected
thereby.
RULE REGARDING ACQUISITION LEGISLATION
Section 1900 (a) No bill or resolution, and no amendment
to any bill or resolution, which could amend the provisions
of this Act shall be considered in the House of
Representatives or the Senate unless it is a bill or
resolution which has been reported by a legislative committee
of the House of Representatives or the Senate (or from the
consideration of which such committee has been discharged)
which has jurisdiction over the bill or resolution.
(b) The provisions of this section are enacted by the
Congress--
(1) as an exercise of the rulemaking power of the
House of Representatives and the Senate, respectively, and as
such they shall be considered as part of the rules of each
House, respectively, or of that House to which they
specifically apply, and such rules shall supersede other
rules only to the extent that they are inconsistent
therewith; and
(2) with full recognition of the constitutional
right of either house to change such rules (so far as
relating to such House) at any time. in the same manner, and
to the same extent as in the case of any rule or such House.
Amendments
Section 2000 To effect the provisions of this Act the
following statutes are hereby amended:
(a) Section 8 of the Small Business Act [15 U.S.C. 637(b)) is
amended by striking the last sentence of subparagraph
(b)(7)(C)and inserting in lieu thereof the following:
"A contracting officer shall not be required to refer
determinations of nonresponsibility to the
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Administration when the next low responsive, responsible
bidder is a small business concern or when the proposed
contract is a small purchase authorized under Section
409 of the Federal Acquisition Act of 1987"
.(b) Section 8 of the Small Business Act [15 U.S.C. 637(d)] is
amended by striking subsections (d) (1) through (d) (9) and
inserting in lieu thereof:
"8(d)(1) Subcontracting Plans. Before the award of any
contract in excess of $1,000,000, the contracting
officer shall:
"(A) determine that the offeror has established for
its entire organization, or a suitable subdivision
thereof, or for the specific contract, a small and
small disadvantaged business contracting plan which
is applicable to the contract; and
"(B) approve the plan, or determine that the plan
has been approved by a contracting officer within
the previous twelve months as offering the maximum
practical opportunity for small and small
disadvantaged business subcontracting or reject the
plan as insufficient under the instant contract;
and
"(C) incorporate such plan into the contract. The
plan may be incorporated by reference.
"(2) Subparagraph (1) does not apply--
"(A) to offerors who are small businesses; or
"(B) to any contract which, including all
subcontracts, will be performed outside the United
States, the District of Columbia, or the
Commonwealth of Puerto Rico.
"(3) Regulations to implement this section shall be in
accordance with Section 1300 of the Federal acquisition
Act of 1987. Such regulations shall specify the matters
to be addressed in the small and small disadvantaged
business subcontracting pans, and the manner in which
the determinations required by subparagraph (1) shall be
made.
"(4) The Contracting officer shall consider the failure
of a contractor to comply with an annual subcontracting plan
or the plan for a prior contract in the determination of
contractor responsibility and in the negotiation of profit
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(c) Amend subsection 8(d)(10) of the Small Business Act, (15
U.S.C. 637(d)(10)) by renumbering it 8(d)(5) and inserting in
lieu thereof:
"8(d)(5) In the case of contracts containing
subcontracting plans for small and small disadvantaged
business, the Administration is authorized to --
"(A) assist Federal agencies and businesses in
complying with their responsibilities for the
formulation of such plans and for performance under
the provisions of the plans;
"(B) review any solicitation for any contract to be
let, which will require such a subcontracting plan,
to determine the maximum practicable opportunity
for small and small disadvantaged business to
participate as subcontractors in the performance of
any contract resulting from any solicitation, and
to submit its finding, which shall be advisory in
nature, to the appropriate Federal agency; and
"(C) evaluate compliance with subcontracting
plans."
(d) Amend subsection 8(d)(11) of the Small Business Act, [15
U.S.C.(d)(1)] by renumbering it "(6)".
(e) In the first clause of the Walsh-Healey Public Contracts
Act (41 U.S.C 35) strike "$10,000" and insert "$25000 or the
amount establishes pursuant to Section 1100 of Federal
Acquisition Act of 1987".
(f) Section 2010 of title 38, United States Code [Section
503(a) of The Vietnam Era Veterans Readjustment Act of 1972)
is amended by striking " the amount of $10,000 or more" and
inserting in lieu thereof "$25000 or the amount established
pursuant to section 1100 of the Federal Acquisition Act of
1987".
(e) Section 503(a) of the Rehabilitation Act of 1973 [29
U.S.C.793(a)] is amended by striking "$2500" and inserting in
lieu thereof "$25000 or the amount established pursuant to
Section 1100 of the Federal Acquisition Act of 1987"
(f) Section 6002(a) of the Solid Waste Control Act [42 U.S.C.
6962(a)] is amended by striking "$10,000" and inserting in
lieu thereof "$25000 or the amount established pursuant to
Section 1100 of the Federal Acquisition Act of 1987".
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(g) Section 1(a) of the Davis-Bacon Act [40 U.S.C. 276(a)] is
amended by striking $2,000" and inserting in lieu thereof
"contracts exceeding one million dollars by the Department of
Defense and the National Aeronautics and Space
Administration,contracts exceeding one hundred thousand
dollars by any other agency subject to this Act, or the
amount established pursuant to Section 1100 the Federal
Acquisition Act of 1987".
(h) Section 2 of the Service Contract Act [41 U.S.C. 351(a)]
is amended by striking "$2,500" and inserting in lieu thereof
"Contracts exceeding one million dollars by the Department of
Defense and the National Aeronautics and Space
Administration, Contracts exceeding one hundred thousand
dollars by any other agency subject to this Act, or the
amount established pursuant to the Federal Acquisition Act of
1987".
(j) Section 4 of the Office of Federal Procurement Policy Act
[41 U.S.C. 402] is amended by deleting subsections (4), (9),
(10), and (11).
Section 2100 Repeals
(a) Chapter 135 and Sections 2301 through 2314, 2317 through
2321 and 2323 of Chapter 137 United States Code;
(b) Subsections 8(e) through (h) and 15(j) of the small
business act, as amended [15 U.S.C. 637(e) through (h), and
644(j)];
(c) Sections 502(d)(8), (10) and (19) of the Federal Property
and Administrative Services Act of 1949,as amended (40 U.S.C.
474(8),(10), and (19);
(d) Title III of the Federal Property and Administrative
Services Act, as amended(41 U.S.C. 251 through 260); and
(e) Sections 16, 17, 18, 20, 21, and 22, of the Office of
Federal Procurement Policy Act, as amended (41 U.S.C. 414,
415, 416, 418, 418a, and 418b).
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Section-By-Section Analysis
Section 101. Declaration of Policy. This section of the proposal
contains the congressional policy of simplifying the Federal
procurement process, encouraging increased competition,
reestablishing the authority and accountability of contracting
officers, and restates the policies of the principal procurement
statutes for the purposes of a single statute governing all
Federal Procurement
Section 201. Definitions.In addition to terms which are currently
defined in the principal statutes, a number of new or redefined
terms are added.
The term "competitive procedures reflects the definition which
derived form the Competition in Contracting Act of 1984 (CICA)
and -continues to recognize the special procedures use in
acquiring A&E services, basic research, multiple award schedules,
and small-business set asides as competitive procedures.
The new" definition of-"contracting officer" includes the head of
an executive agency and such other persons . designated. by the head
of the agency. "commercial Product and " commercial-type products
are defined for the purposed. of establishing special commercial
acquisition procedures. The-, term "Agency" is redefined to the
parameters of _5, U.S.C. -5.51- which -definition includes all
executive branch agencies- and establishments. The only
organizations exempted are those specifically excluded by that
section.
Section 301. Acquisition Authority and Management. The
authorities and responsibilities of agency acquisition officials
are set forth in a consolidation of similar provisions contained
in the Office of Federal Procurement Policy Act and CICA. The
responsibilities of contracting officials including the head of
an agency, 'contracting officers, senior acquisition executives,
and competition advocates are spelled out in this section. The
head of the agency's responsibilities include management of the
overall programs and acquisitions, appointment of contracting
officers, and procedures for coordination of the agency's
contract audit function. Acquisition Executives are required
ensure that the contract auditor is integrated into the
contracting team and de'. elc~ e ':ecif c prcgramz f : r the
improvement of the quality of the acquisition workforce. The
functions of the Competition Advocate are simplified however
their function is expected to remain unchanged from their current
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Section-By-Section Analysis
Section 101. Declaration of Policy. This section of the proposal
contains the congressional policy of simplifying the Federal
procurement process, encouraging increased competition,
reestablishing the authority and accountability of contracting
officers, and restates the policies of the principal pro?curement
statutes for the purposes of a single statute governing all
Federal Procurement
Section 201. Definitions.In addition to terms which are currently
defined in the principal statutes, a number of new or redefined
terms are added.
The term "competitive procedures reflects the definition which
derived form the Competition in Contracting Act of 1984 (CICA)
and continues ' to. recognize the special procedures use in
acquiring A&E services, basic research, multiple award schedules,
and small'business set asides as competitive procedures.
The:new" definition of.."contracting officer" includes the head of
an executive agency and such'other persons , designated. by the head
of the agency- -"commercial Product and " commercial-type products
are defined for the purposed. of establishing special commercial
acquisition procedures. The-' term "Agency" is redefined to the
parameters'.: of _5 .O.S.C. 5.51 which. -definition includes all
.executive branch ?- agencies- and establishments. The only
organizations exempted are those specifically excluded by that
Section 301. Acquisition Authority and Management. The
authorities and responsibilities of agency acquisition officials
are set forth in a consolidation of similar provisions contained
in the Office of Federal Procurement Policy Act and CICA. The
responsibilities of contracting officials including the head of
an agency, 'contracting officers, senior acquisition executives,
and competition advocates are spelled out in this section. The
head of the agency's responsibilities include management of the
overall programs and acquisitions, appointment of contracting
officers, and procedures for coordination of the agency's
contract audit function. Acquisition Executives are required
ensure that the contract auditor is integrated into the
contracting team and de?: elcre -_nec_f_c programs for the
improvement of the quality of the acquisition workforce. The
functions of the Competition Advocate are simplified however
their function is expected to remain unchanged from their current
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statutory authority.
Section 401. General Acquisition Requirements. Contracting
officers are to ensure compliance including proper determination
of agency requirements, adequate funding, and exercise of good
business judgement are set forth in this section. This also
limits acquisition techniques to those set forth in the proposed
statute unless otherwise provided by law. This section closely
parallels current law.
Section 402. Full and Open Competition. The section requires the
use of full and open competition by obtaining sealed' bids or
competitive proposals and is essentially a restatement of the
requirements of CICA except that responsibilities are placed on
the contracting officer rather than executive agencies as state?
in CICA.
Section 403. Limited Competition. Authorization is in the same
manner as provided in CICA with the addition of competitive
procurements among participants in the 8a program.
Section 404.`Procurement' Without Competition. Authorization id
-based with the same limitations established by CICA and includes
the amendments. incorporated,. by 'P.L.99-591. All responsibilities
placed,in the contracting officer.
Section.'405.. The requirement" for- justifications and approvals to
engage in'noncompetitive_ acquisitions is retained. The proposed
section differs from'-current provisions by establishing a
threshold of $10 mil. at which the senior acquisition executive
of 'the agency. must grant approval without redelegation. The
authorization levels of -justifications -and approvals for lesser
,-amounts, unlike the-rigid schedule stipulated by CICA, are to be
determined by the_'senioracquisition executive of the agency.
Section 406. Planning and Solicitation Requirements The proposal
requires contracting officers to use advance procurement
planning, specify needs in a manner that will promote full and
open competition, encourages the use of functional specifications
over -design specifications and'emphasizes the importance of
defining needs so that commercial products may be used to fulfill
the agency's requirements. This section provides the requirements
for selection of contract types and limitation of fees under cost
type contracts. These requirements are unchanged form the present
statutory requirements. An additional responsibility of the
contracting officer is to ensure that the contract type selected
reflects a balance among factors such as incentives commensurate
with contractor risk.
Section 407. Procurement Notice.. The procurement notice
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provision-. of this proposal follow clo.ely thc? current pr'??: i-~io::s
V TI -L P
I 1ht: vi"D Act and ire S.Ina11 EuJiries A c ICI elct-:- pt
publication threshold of $25,000 applies to all acquisitions nor
excepted under the section. The current statutory provisions
require publication of sole source procurements at $10,000 and
up. The dual provisions currently contained in the Small Business
Act and the OFPP Act are eliminated.
Section 408. Evaluation and Award. These requirements are not
changed from present law. Bids and proposals are required to be
evaluated on the basis of the evaluation factors stated in the
solicitation. Awards are to be made promptly. Awards of
negotiated procurements may be made with or without discussions
so long as the solicitation notifies the offerors that such an
option is available to the Government. This section also reflects
the importance of the determination by the contracting officer of
the relative importance of factors such: a technical.
capability, management capability and experience
Section 409. Small Purchases. Simplified small purchases are
authorized for procurements of $25,000 of less. Procedures are to
be set forth in the FAR. The ceiling may be adjusted in
accordance with section 1100.
Section 410. Multiple Award Schedules. Authority for competitive
multiple award schedule acquisitions is provided in the mariner
authorized by CICA
Section'411. Basic Research. -Special procedures for competitive
selection of basic research proposals are. authorized.
Section - 501. Commercial Style Competition for Commercial
Products. This section will be. distributed separately for
clearance.
Section 502. Architect-Engineer-Services. The provisions for
acquiring the services of architect and engineer services while
incorporated into this proposal is unchanged for the current
requirements of the Brooks Act.
Section 503. Professional Services. A new approach to the
acquisition of professional services is established under the
proposal. Highly complex services which require unique
qualifications may be acquired using an optional selection
procedure which announces requirements and selects qualified
sources with whom the agency will conduct-negotiations starting
with the highest qualified firm. This procedure will be similar
to that use in acquiring architect and engineer services in that
if ~i1C agency is a -le to successfully negotiate coat rac Y: vii
the highest qualified firm that has submitted the best proposal,
the procurement will be concluded. The term highly complex
services will be defined in the FAR.
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4
Section 601. Rights in Technical Data. The prescriptive
requirements of the current statutory provisions is reduced to a
statement of the requirement that the interests of the contractor
and the Government be defined in regulation with assurance that
the policy of commercialization of federally funded research
be carried out in the FAR.
Section 602. Validation of Technical Data Rights. The current
statutory provisions requiring prompt resolution of disputes
concerning restrictions on the right of the Government to use
technical data are simplifies. Whore current law sets forth
detailed procedures,the proposal would require develdpment of
procedures in the FAR to assure contractor or subcdntractor
justification of restrictions asserted and a decision by the
contracting officer regarding those restrictions.
Adverse decisions by the contracting officer may be appealed by
the contractor under the disputes clause
Section 701. Truth in Negotiations. This section adopts the
current provisions of_the Armed Services Procurement Act for all
agencies establishing uniform requirements for the submission of
certified cost or pricing data by contractors. Unlike the current
statutory provisions the authority of this section to be
exercised on .,-behalf of - the - Government is vested in the
Contracting officer;-" The provisions for price reduction for
defective '- cost or.. pricing data and audit- of contractor records
Section 702. Commercial -Pricing .of Spare or Repair Parts. This
section adopts the.current provisions of the Armed Services Act
for application by.all -agencies. Contractors offering to supply
spare or-repair parts,-under-non competitive procedures who sell
those same items-to the public, are required to certify that the
price to the Government does not exceed the lowest commercial
price charged by the contractor during an appropriate sales
period.
Section 703. Prohibition of Contractors Limiting Subcontractor
Sales Directly to the United States. This. section continues
existing statutory provisions designed to prevent prime
contractors. from using provisions in their subcontracts or other
techniques which, would prohibit- or discourage sales of parts,
components or subsystems directly to the Government.
Section 801. Multi-Year Contracting. The proposal retains the
procedures of the Armed Services Procurement Act for all agencies
in simplified language setting forth conditicns for i is use az
set forth in that Act.
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Se.;tic_ n 901 . Advance Payments. Existing Statutory pry Zvi sicr.s are.
consolidated i n simpler language.The basis, authority for
advance,partial, or progress payments remains unchanged.
Section 902. Delegation. Agency heads are may delegate any
authority under this Act unless denied by specific requirements
of a section of the proposed act.
Section 903. Remission of Liquidated Damages. This section
consolidated the existing statutory provisions.
Section 904. Examination of Books and Records of Contractor. This
section consolidates existing law.
Section 905. Encouraging New Competitors. This section simplifies
and consolidates the existing coverage of the Armed Services Act
and the Federal Property Act by requiring that agencies, (1)
justify the use of perqualification procedures, and (2) take
action to qualify additional competitors.
Section 906. Assignment and Delegation of Acquisition Functions
and Responsibilities. This_ section consolidates existing
authority under the Armed Services:Act.
Section 907. Allocation of -.Appropriations This section expands
to- all: =agencies; the,'-,authority ;currently contained in the armed
Services Act which__ permit ' agency. heads to allocate appropriations
for programs to other agencies permitting combined agency
resources for joint projects.
Section 1000. .Socioecomonic .Provisions. To provide for
consistency and economy the .threshold application of the
socioeconomic statutes which " are implemented through the
acquisition process is established. at $25,000 or the adjusted
amount established under section 1100. The statutes affected are;
The Walsh-Healey Public Contracts Act, The Vietnam Era Veterans
Act, The Rehabilitation Act of 1973, and The Solid Waste Control
Act. The thresholds for the Davis-Bacon and Service Contract Acts
are revised to $1 mil. for DOD and NASA and $100K for all other
agencies.
Section 1001. Small Business.The preference for award to small
businesses through small business set asides is retained in a
simplified version and made a section of the proposed act. This
section also preserves the small business small purchase
reservation and revises existing law to provide regarding
subcontracting plans for utilization of small and small
di.-advantaged business. Tinder the proposed provisions--c:: rany,
wide annual plans may be adopted
for use in contracts which are above the revised threshold
requirements of $1 mil. Contractors would be required to update
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plans to reflect any significant change in their business bas;.
Finally th.a requirement for invoking the certif ieate of
competency procedures is revised to eliminate its applicability
for purchases under the small purchase ceiling and on other
acquisitions where the next low responsive responsible offeror is
a small business.
Section 1100. Adjustment of Dollar Thresholds. This new authority
would permit the- Administrator for Federal Procurement Policy
after consultation with appropriate agency heads to review adjust
the dollar thresholds that affect federal acquisitions. A review
would be required every three years. If the adjustment exceeds
25% of the existing threshold the Administrator would be'required
to provide a report to the appropriate committees of the Congress
at least 60 days before the effective date of the change. The
report will describe the improvement in economy and of f icy ?r_c?,
resulting from the revised threshold.
Section 1200. Safeguard of Acquisition Information. To provide
further protection for information submitted by contractors in
the acquisition. process,. all information submitted in support of
a proposal 'will- be exempt from release under the freedom of
information -Act unless: - it ~ .discoverable in litigation of a
protest.
-
Section 11300. Regulations. This --section provides for the
promulgation : of the ;;:Federal . Acquisition Regulation by the
Secretary of Defense, _' The Administrator of General Services, and
the Administrator of the National -Aeronautics and Space
Administration. Agencies are permitted to prescribe regulations
which implement and supplement the government wide regulation.
This section --.follows ;current :law and. adds recognition of the
over sight '.responsibility----- of-::the Administrator for Federal
Procurement Policy.
Section `1400. Publication-of` Proposed Regulations. The current
statutory requirement for publication of proposed regulations
required by Section 18 of the OFPP Act is retained. Proposed
regulations that have a significant effect beyond the internal
operating procedures of an agency or which has a significant cost
or administrative.. impact.... is required to be published in then
Federal Register'for.public comment for a period. of 30 days.
Regulations may -be--issued on a temporary basis if compelling and
urger}t circumstances exist. However, the regulation may not
become permanent until published for 30 days public notice.
Section 1500. Applicability of Existing Statutory Authority. This
section ensures that the numerous grants of authority throughout
the United States Code which provide for procurement without
regard to "formal advertising" will be covered by the authorities
of this act for other than sealed bid procedures. also, the
special authorities of the "non-interference" provisions. of the
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F,xderal Property a. d Ad: inistrative Services Act are incorr-?rat.:-:~d
in this proposal.
Section 1600. Transitional Provisions. To provide for a smooth
and orderly transition from multiple statutory authority to.the
single statute, the effective date of the provisions of the
proposed act is made 365 days after enactment. This section also
provides that all acquisitions, regulations and related matters
which are in effect at the time the act becomes effective will
remain in effect until they are superseded or expire.
Section 1700. Applicability of Subsequent Laws. This section
ensures that any subsequent -act enacted after the propdsed act,
is not be effective as an amendment to the proposed act unless it
does so by specifically and explicitly makes reference to a
provision of the proposed act. The purpose of this provision is
to assure proper consideration of amendments to the proposed act.
Section 1800. Rule regarding Acquisition Legislation. This
provision would amend the rules of the House of Representatives
and the Senate to require joint referral of proposed legislation
affecting the federal acquisition. Referral would be to the
Congressional Committees on Armed Services and the Committees on
Governmental Affairs and Government Operations. This section
further provides that no bill or amendment dealing with the
acquisition process can, be considered in' either House unless
reported out by the ,committees named in this section.
Section 1900. Separability." This .-section ensures that if any
provision of the proposed act is invalidated then the remainder
of the act would continue to be valid. Prior actions taken under
the invalidated provision would not be affected.
Section 2000. Amendments. The amendments made by the revisions
contained in this proposal are set forth in this section.
Section 2100. Repeals. This section contains the repeals made
necessary by the consolidation of procurement laws accomplished
by the proposed act.
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To simplify and consolidate statutes affecting government
acquisition and to make more efficient the government acquisition
process
Be it enacted by the Senate and House of Representatives or the
United States of America assembled,
Sec. 101. (a) SHORT TITLE. This act may be cited as the
"Federal Acquisition Act of 1987".
(b) TABLE OF CONTENTS
Sec. 101. Short title; Table of Contents; Declaration of
policy
Sec. 201. Definitions
Sec. 202. Applicability
Sec. 301. Acquisition Authority and Management
(a) Contracting Authority of an Agency
(b) Management Responsibilities
(c) Senior Acquisition Executives
Sec. 401. General Acquisition Requirements
Sec. 402. Full and Open Competition
Sec.
403.
Limited Competition
Sec.
404.
Procurement Without Competition
Sec.
405. Justifications and Approvals
Sec.
406.
Planning and Solicitation Requirements
Sec.
407.
Procurement Notice
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Sec. 408. Evaluation and Award
Sec. 409. Small Purchases
Sec. 410. Multiple Award Schedules
Sec. 411. Basic Research
Sec. 501. Commercial Product Acquisition Procedures
Sec. 502. Architect-Engineer-Services
Sec. 503. Professional Services
Sec. 601. Technical Data
Sec. 602. Validation of Technical Data Restrictions
Sec. 701. Cost or Pricing Data
Sec. 702. Commercial Pricing for Spare or Repair Parts
Sec. 703. Prohibition of Contractors Limiting Subcontractor Sales
Directly to the United States
Sec. 801. Multi-Year Contracting
Sec. 901. Contract Financing
Sec. 902. Delegation
Sec. 903. Remission of Liquidated Damages
Sec. 904. Examination of Books and Records of Contractor
Sec. 905. Encouraging New Competitors
Sec. 906. Assignment and Delegation of Acquisition Functions and
Responsibilities
Sec. 907. Allocation of Appropriations
Sec. 1000. Socioeconomic Provisions
Sec. 1001. Small Business
Sec. 1100. Adjustment of Dollar Thresholds
Sec. 1200. Safeguard of Acquisition Information
Sec. 1300. Regulations
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Sec. 1400. Publication of Proposed Regulations
Sec. 1500. Applicability of Existing Acquisition Authority
Sec. 1600. Transitional Provisions
Sec. 1700. Applicability of Subsequent Laws
Sec. 1800. Separability
Sec. 1900. Rule Regarding Acquisition Laws
Sec. 2000. Amendments
Sec. 2100. Repeals
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