COMPETITION IN CONTRACTING ACT OF 1983

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000200250029-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 21, 2016
• Document Release Date: November 7, 2008
• Sequence Number: 29
• Publication Date: November 11, 1983
• Content Type: OPEN SOURCE

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S 15998
CONGRESSIONAL RECORD - S SENATE
MESSAGES FROM THE HOUSE
At 1:06 pxn., a message from the
House of Representatives, delivered by
Ms. Goetz, one of its reading clerks,
announced that the House disagrees to
the amendments of the Senate to the
joint resolution (H.J. Res. 413),
making further continuing appropri-
ations for the fiscal year 1984; it
agrees to the conference asked by the
Senate on the disagreeing votes of the
two Houses thereon, and appoints Mr.
WHITrEN, Mr. BOLAND, Mr. NArclrER,
Mr. SMITH of Iowa, Mr. ADDABBO, Mr.
LONG of Maryland, Mr. YATES, Mr.
RoYBAL, Mr. BEvILL, Mr. DIxoN, Mr.
FAzIo, Mr. HEFNER, Mr. CoNTE, Mr.
McDADE, Mr. EDwARDs of Alabama,
Mr. MILLER of Ohio, Mr. KEiep, and
Mr. O'BRIEN as managers of the con-
ference on the part of the House.
The message also announced that
the House has passed the following
joint resolution, in which it requests
the concurrence of the Senate:
H.J. Res. 20. Joint resolution designating
November 13, 1983, as "National Retired
Teachers Day".
The message further announced
that the House has agreed to the fol-
lowing concurrent resolution, in which
it requests the concurrence of the
Senate:
H. Con. Res. 214. Concurrent resolution
authorizing the Rotunda of the Capitol to
be used for a ceremony on November 18,
1983, commemorating the 20th anniversary
of the death of President John Fitzgerald
Kennedy.
ORDER OF PROCEDURE
Mr. BAKER. Mr. President, the first
evidence of the grogginess of my mind
and the fatigue still accumulated in
my body is I should have yielded so
the minority leader could be recog-
nized before we admitted that messen-
ger. I apologize to him for that. But I
have nothing further at this moment
and I yield now.
RECOGNITION OF THE
MINORITY LEADER
The ACTING PRESIDENT pro tem-
pore. Under the previous order, the
Democratic leader is recognized.
Mr. BYRD. Mr. President, the ma-
jority leader is not the only Senator or
person in this Chamber who is groggy.
I can understand. He is very thought-
ful to offer an apology. He does not
owe me any.
ORDER OF BUSINESS
Mr. BYRD. Mr. President, I yield to
the majority leader any time I have re-
maining so that we can transact rou-
tine morning business.
Mr. BAKER. I thank the Senator.
Mr. President, I ask unanimous con-
sent that the time remaining to the
two leaders be aggregated with the
time remaining for morning business
under the same terms and conditions.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
Mr. BAKER. Mr. President, there
are a number of things that appear
cleared on this side of the aisle for
action by unanimous consent.
First, Mr. President, I would propose
to go to S. 338, if the minority leader
is prepared to do that at this time.
Mr. BYRD. Mr President, we are so
prepared.
Mr. BAKER. I thank the minority
leader.
ACT OF 1983
Mr. BAKER. Mr. President, I ask
he Chair to lay before the Senate
alendar Order No. 265, S. 338.
The ACTING PRESIDENT pro tem-
pore. The clerk will report.
The legislative clerk read as follows:
A bill (S. 338) to revise the procedures for
soliciting and evaluating bids and proposals
for Government contracts and awarding
such contracts, and for other purposes.
The ACTING PRESIDENT pro tem-
pore. Is there objection to the request
of the majority leader?
There being no objection, the Senate
proceeded to consider the bill, which
had been reported from the Commit-
tee on Governmental Affairs. with
amendments, as follows:
On page 4, line 18, after "such", insert
"unusual and compelling";
On page 5, line 1, strike "any agreement
with", and insert "any international agree-
ment or treaty between the United States
Government and";
On page 5, line 15, strike ", for", through
and including line 18, and insert the follow-
ing: using noncompetitive procedures
unless-
"(1) In the case of any contract other than
a small purchase, a notice has been pub-
lished with respect to such contact pursuant
to section 313 and all bids, proposals, and
quotations received in response to such
notice have been considered by such execu-
tive agency; and
"(2) in the case of any contract exceeding
$100,000, the use of such procedures is ap-
proved by the head of the organizational
element of such executive agency which has
the responsibility to enter into such con-
tract or by a designee of the head of such
organizational element who is higher in
such organizational element than the. con-
tracting officer issuing the solicitation with
respect to such contract.";
On page 10, line 5, strike "(a)", and insert
"(A)";
On page 11, line 2, strike "(c)", through
and including line 3, and insert "(c)";
On page 11, line 4, strike "enter into", and
insert "solicit bids, proposals, or quotations
for";
On page 11, line 6, strike "the maximum"
through and including "309(c)" on line 8,
,
and insert "$10,000";
On page 11, line 10, strike "(1)";
On page 11, line 15, after "award", insert
"if there is likely to be any subcontract
under such contract";
On page 11, strike line 18, through and in-
cluding line 22, and insert the following:
"(2) The Secretary of Commerce shall
publish promptly in the Commerce Business
Daily each notice required by paragraph (1).
"(3) Whenever an executive agency is re-
quired by paragraph (1)(A) to furnish a
November 11, 1988
notice of a solicitation to the Secretary of
Commerce, such executive agency may
not-
"(A) issue such solicitation earlier than
fifteen days after the date on which such
notice is published by the Secretary of Com-
merce; or
"(B) establish a deadline for the submis-
sion of bids, proposals, or quotations in re-
sponse to such solicitation that is earlier
than thirty days after the date on which
such solicitation is issued
On page 12, line 11, strike "(1)";
On page 12, line 11, after "shall", insert
"include";
On page 12, strike line 13, through and in-
cluding line 18 on page 13, and insert the
following:
"(1) a description of the property or serv-
ices to be contracted for, which description
is not unnecessarily restrictive of competi-
tion;
"(2) the name and address of the officer
or employee of the executive agency who
may be contacted for the purpose of obtain-
ing a copy of the solicitation;
"(3) a statement that any person may
submit a bid, proposal, or quotation which
shall be considered by the executive agency;
and
"(4) in the case of a procurement using
noncompetitive procedures, a statement of
the reason Justifying the use of noncompeti-
tive procedures and the identity of the in-
tended source.
"(c)(1) A notice is not required under sub-
section (aXl) if the notice would disclose
the executive agency's needs and the disclo-
sure of such needs would compromise the
national security.
"(2) The requirements of subsection
(aX1XA) do not apply-
"(A) to any procurement under conditions
described in clause (2), (3), (4), or (5) of sec-
tion 303(e); and
"(B) in the case of any procurement for
which the head of the executive agency car-
rying out such procurement makes a deter-
mination in writing, with the concurrence of
the Administrator of the Small Business Ad-
ministration, that it is not appropriate or
reasonable to publish a notice before issuing
a solicitation.
On page 16, line 15, strike "$500,000", and
insert "$100,000";
On page 16, line 19, strike "$500,000", and
insert "$100,000";
On page 17, line 2. strike "$500,000". and
insert "$100,000"; .
On page 17, line S. strike "$500,000", and
insert "$100,000";
On page 24, line 11, after "such", insert
"unusual and compelling";
On page 25, line 4, strike "any agreement
with", and insert "any international agree-
ment or treaty between the United States
Government and";
On page 26, line 15, strike ", for", through
and including line 17, and insert the follow-
ing: using noncompetitive procedures
unless-
"(1) in the case of any contract other than
a small purchase, a notice has been pub-
lished with respect to such contract pursu-
ant to section 2305(c) of this title and all
bids, proposals, and quotations received in
response to such notice have been consid-
ered by such head of an agency; and
"(2) in the case of any contract exceeding
$100.000, the use of such procedures is ap-
proved by the head of the organizational
element of such agency which has the re-
sponsibility to enter into such contract or
by a designee of the head of such organiza-
tional element who is higher in such organi-
zational element than the contracting offs.
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99
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ZanffBsionaL Record
United States
of America
PROCEEDINGS AND DEBATES OF THE 98 tb CONGRESS, FIRST SESSION
WASHINGTON, FRIDAY, NOVEMBER 11, 1983
Senate
The Senate met at 1 p.m., on the ex- U.S. SENATE,
piration of the recess, and was called PRESIDENT PRO TEMPORE,
to order by the Honorable THAD CocH- Washington, D.C., November 11, 1983.
RAN, a Senator from the State of Mis- To the Senate:
sissippi. Under the provisions of rule I. section 3,
of the Standing Rules of the Senate, I
The Chaplain, the Reverend Rich-
ard C. Halverson, D.D., offered the fol-
lowing prayer:
Let us pray.
God of grace and glory, we remem-
ber with profound gratitude the awful
price which has been paid for the in-
calculable privileges we enjoy in this
land. We thank Thee for the blessings
of freedom and plenty unmatched by
any other nation in history.
We thank Thee for the splendid tra-
dition of dedication and sacrifice
which has characterized the allegiance
and loyalty of America beginning with
our Founding Fathers who pledged
their lives, their fortunes and their
sacred honor.
We thank Thee for the patriotism of
millions of heroic men and women
who at the cost of their lives upheld
that tradition and preserved our Re-
public. We abhor the wars which have
been so costly in the finest and best of
American life, but we honor their
memory and we pray for Thy special
grace for all who mourn the loss of a
loved one in conflict. May we who reap
the immeasurable benefits of their
sacrifice remain true to that for which
our patriots gave their all. We pray in
the name of Him Who gave His life to
redeem us all. Amen.
APPOINTMENT OF ACTING
PRESIDENT PRO TEMPORE
The PRESIDING OFFICER. The
clerk will please read a communication
to the Senate from the President pro
tempore (Mr. THURMOND).
The legislative clerk read the follow-
ing letter:
hereby appoint the Honorable THAD CocH-
RAN, a Senator from the State of Mississippi,
to perform the duties of the Chair.
STROM THURMOND,
President pro tempore.
Mr. COCHRAN thereupon assumed the
chair as Acting President pro tempore.
RECOGNITION OF THE
MAJORITY LEADER
The ACTING PRESIDENT pro tem-
pore. Under the previous order, the
majority leader is recognized.
Mr. BAKER. I thank the Chair.
ORDER OF PROCEDURE
Mr. BAKER. Mr. President, I report
to the Senate that the conferees on
the continuing resolution are meeting;
that the estimate I have received from
the House side is that it will be late
afternoon before they expect to be
able to act. And, of course, we cannot
act until after the House does.
So what I would propose to do today,
if the minority leader agrees, is to put
us in the time for the transaction of
routine morning business, do some
routine matters, and then go out until
3 p.m. We will have a further report at
thattime.
ORDER FOR ROUTINE MORNING
BUSINESS
Mr. BAKER. Mr. President, I ask
unanimous consent that, after the two
leaders have utilized or yielded back
their time under the standing order,
there be a period for the transaction
of routine morning business of not
more than 30 minutes in length in
which Senators may speak for not
more than 5 minutes each, with the
exception of the minority and major-
ity leaders who may require more time
than that to deal with calendar items
and other routine business.
The ACTING PRESIDENT pro tem-
pore. Is there objection? Without ob-
jection, it is so ordered.
Mr. BAKER. Mr. President, may I
explain that if there is a desire for
more time for morning business, of
course, we will provide that. And if
there is anything we have today, I am
afraid it is time. I will try from time to
time to notify Members of progress on
the conference report both through
our hotline and with statements on
the floor if we are in session.
Mr. PELL. Will the Senator yield?
Mr. BAKER. Yes, I yield.
Mr. PELL. For those of us who are
anxious to leave town, is it your view
there will be a rollcall vote on the con-
ference report or will you seek to avoid
such a vote?
Mr. BAKER. Mr. President, of those
who are anxious to leave town, I have
already put my name at the head of
the list. My family is already in Ten-
nessee and I would like to join them.
My serious answer to any friend and
colleague from Rhode Island is that I
do not expect to ask for a rollcall vote.
Of course, we cannot guarantee there
will not be one because any Senator
has the constitutional opportunity to
demand the yeas and nays. But I do
not plan to ask for a rollcall on final
passage or on any other votes associat-
ed with the final disposition of the
conference report. But, once again, I
warn Senators who may be listening in
their offices that that is not a guaran-
tee.
I thank the Senator from Rhode
Island for making the inquiry.
Mr. PELL. I thank the majority
leader for his response.
Mr. BAKER. Mr. President, there is
a messenger at the door from the
House of Representatives. I yield so
the Chair can admit her.
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November 11, 1983 CONGRESSIONAL RECORD - SENATE S 15999
cer issuing the solicitation with respect to
such contract.
On page 31, strike lines 19 and 20, and
insert "subsection";
On page 31, line 21, strike "enter into",
and Insert "solicit bids, proposals, or quota-
tions for";
On page 31, line 24, strike "the maxi-
mum", through and including "title" on
page 32,. line 1, and insert
On page 32, line 5, strike "the", through
and including "title" on line 7, and insert
"$10,000";
On page 32, line 9, after "award". insert
"if there Is likely to be any subcontract
under such contract':
On page 32, strike line 11, through and In-
cluding line 15, and insert the following:
"(B) The Secretary of Commerce shall
publish promptly in the Commerce Business
Daily each notice required' by subparagraph
(A) of this paragraph.
"(C) Whenever a head of an agency is re-
quired by subparagraph (A)(i) of this para-
graph to furnish a notice of a solicitation to
the Secretary of Commerce; such head of an
agency may not-
"(I) issue such solicitation earlier than fif-
teen days after the date on which such
notice is published by the'Seeretary of Com-
merce; or
"(Ii) establish a deadline for the submfs-
sion of bids, proposals, or quotations in rem
sponse to such solicitation. that is earlier
than thirty days after the date on which
such solicitation is issued.
On page 33, line 5, strike "(Al
On page 33, line 4, after "shall." insert
"include";
On page 33, strike line 7, through and in-
cluding line 8 on page 34, and Insert the fol-
lowing:
"(A) a description of the property or serv-
ices to be contracted for, which description
is not unnecessarily restrictive of competi-
tion;
"(B) the name and address of the officer
or employee of the agency who may be con-
tacted for the purpose of obtaining a copy
of the solicitation;
On page 43, line 12, strike and On page 26, strike line 21, through "pur-
insert "441"; chase," on line 22, and insert "(2)"
And which had bees reported from. On page 26, line 14, strike ...... and insert
the Committee on Armed Services, "or";
With amendments as follows: On page 26, beginning on line 24, strike
and quotations";
On page 22, line 7, strike "and", and insert On page 27, line 3, strike "'(2r, and insert
or"; "'(3)";
On page 22, line 15, strike the comma, and On page 27, after line 10, Insert the fol-
insert "or"; lowing:
On page 22, line 15, strike "or quotations'; (h) For the puepeses of the following
On haae 2n f i line IB, strike "award9, Iaws, purchases or contratta made under
through and "provide or he the" on IIIse I9, this chapter using. other thaw sealed bid
and insert "pro, strike "of p and procedures shall be treated ns if their were
On
page
made with sealed bid oraesdaves:
"22, under rinthis g 21 title st using competitive such".
insert yes but t excluding a p paarticuular r "(1) Sections 3ir46, of title 41.
procedures
source for that"; "(2)Sections276s-174a.b.ettitle 40."
On page 22, line 25, after "Increase", "0 2305 S.lMitatiea, enduatfeft said award prece-
insert "or maintain"; urea; mile. ragolew oia
On page 23, line 2, strike "or"; On page 28, line 1A alW? "siall % Insert
On page 23, line 4, strike "emergency" and .at a minimum",
inset the following: emergency, or (3) be in On page 28, line 24"In? insert
the interest of national defense in establish- .each ,of";
ing or maintaining an essential research ca- Ong ring 1~~ -based insert
pabilfty to be provided by an educational or ?son p,,
other nonprofit institution or a research page 30, line 1, after "'tarts:', insert
and development center funded by the ,solely "
On page 23, United On page 30, line 13, strike the period, and
On page lure 18. after 'other". insert insert the following:
"price-related ';
On page 23, line Is. strike "eonaddered" where it can be clearly demonstrated from
On page 24, line 6. strike -and, and Insert the existence of effective competition or se.
.,or"; curate prior cost experience with, the prod
On page 24, line 13, strike "involved W. uct or service that acceptance at an initial
and Insert "associated with"; proposal without discussisaa would result in
On page 24, line 16, strike "maintain", fair and ressoaable.prices.
through and including "meb1l tfon; " on On page 31, line 7, alter "States.", insert
line 18, and insert the following: "solely";
(A) maintain a facility, producer, manufac- On page 31, line 14, strike-"received under
turer, or other supplier available for fur- sealed bid procedures", and Insert "or pro-
ntshing property or services in case of a na- posai";
tional emergency, (B) achieve Industrial mo- On page 31, line 15, after "bit', insert "or
bilization in the case of such an emergency,
or (C) establish or maintain and essential
research capability to be provided by an
educational or other nonprofit institution.or
a research and development center funded
by the United States;
On page 25, line 6, after "government".
insert "or international organization";
On page 25, line 12 strike "provides",
insert "authorizes or requires";
On page 25, line 14, after "agency or'?,
insert "from";
On page 25, line 14, after "source; or",
insert "the agency's need is for a brand-
name commercial item for authorized
resale; or";
On page 25, after line 19,? insert the fol-
lowing:
"(f) For the purposes of applying section
2304(e)(1) hereof: (A) property or services
shall be considered to be available from. a
source if such. source has the capability to
produce the property or deliver the service
in accordance with the Government's speei,
fications and delivery scl ale., and (B)' in
On pate 31, line 21, strike "a", and insert
"the";
On page 31, line 22, strike the comma, and
insert "or,";
On page 31, line 22, strike "or quotations";
On page 31, line 23, after "price", Insert
"expected to";
On page 31, line 24, strike "exceeding",
and insert "exceed";
On page 32, line 4, strike "a", and insert
"the";
On page 33, line 1, after "of", insert "all";
On page 33, line 2. strike "bids,", and
insert "bids or";
On page 33, line 2, strike ". at quotations''.
On page 34, line 9, strike "a", and insert
"an aeeurate".
On page 34, line 16, strike the comma and
insert "or";
On page 34. line 16, strike ", or quota-
tion";
On page 35, line 23, strike "the", through
and including line 25, and insert the follow-
"(C) a statement that any person may
submit a bid, proposal, or quotation which
shall be considered by the agency; and
"(D) in the case of a procurement using
noncompetitive procedures, a statement of
the reason justifying the use of noncompeti-
tive procedures and the identity of the in-
tended source. -
"(3)(A) A notice is not required under
paragraph (11(A) of this subsection if the
notice would disclose the agency's needs and
the disclosure of such needs would compro-
mise the national security.
"(B) The requirements of paragraph
(1)(A)(i) of this subsection do not apply-
11(i) to any procurement under conditions
described in clause (2), (3), (4k or (5* of see'
tion 234 (e) of this title; and'
"(ii) in the came of any procurement for
which the head of the agency carrying out
such procurement makes a. determination In
writing, with the concurrence of the Admin-
istrator of the Small Business Admittistm
tion, that it is not appropriate or reasonable
to publish a notice before issuing a solkdta-
tion."; and
On page 38, line 10, strike "500,000", and
insert "$100.000
On page 38. line 12, strike "and";
On page 38. after line 17, insert the fob
lowing:
(iv) by striking out "$500,000" each place
it appears in clauses (B), (C), and (D) and
inserting-in lieu thereof "$100.000; and
On page 43, strike line 7, through and in-
cluding line 10;
On page 43, line 11, strike "V", and Insert
the case of the procurement of. technical or ing:
special property which has required a sub- "(I) the notice would disclose the agency's
stantial initial investment or ez*r ded needs and the discloure of such needs would
period of preparation for re; artd compromise the national security; or
where it is likely, that production by a "(u) the proposed noncompetitive procure-
source other than. the original soetrce would ment would result from acceptance of an
result in additional cost to the Govssnmesnt unsolicited research proposal' that demon-
by reason of duplication of investment or strates a unique or innovative research con-
would result in duplication of necessary cept and the publication of any notice of
preparation which would unduly delay the such unsolicited research proposal would
procurement of the property. the property disclose the originality of.tbaught or inno-
may be deemed to be available only from vativeness of the proposed research or pro-
the initial source and lr5 ' be yrecured prietary data assoetated'ntth the proposal
through noncom peUUve praaedurea On page 34, line 9, after "the", insert
On page 26, line 14.. strike "'W'. and contract-
insert,"'(g)"; On page 43, line 14. strike "one hundred
On page 241 after lane 18, Insert the fol' and eighty" and insert "two. hundred and
loving: seventy".
(1) the use of such Procedures has been
justified in writing;" So as to make the bi!1l read:
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S 16000 CONGRESSIONAL RECORD - SENATE
Be it enacted by the Senate and House of Government and a foreign November tn 1983
Representatives of the United States of the directions of any foreign government re- price, all significant
executive agency iresin -
America in Congress assembled, That this imbursing the executive agency for the cost ably expects to consider in evaluating sealed
Act may be cited as the "Competition in of the procurement of the property or serv- bids or competitive proposals; and
Contracting Act of 1983". ices for such government, have the effect of
TITLE I-AMENDMENTS TO FEDERAL requiring the use of noncompetitive proce- (B) the relative Importance assigned to
PROPERTY AND ADMINISTRATIVE dures; those factors; case ACT OF 1949 "(2) in the case of sealed bids-
"(5) a statute provides that the procure-
_-----. ...w uwivim Willi the Ulu_
SEC. 101. (a) Title III of the Federal Prop. "(6) the disclosure of the executive agen- ders; and
erty and Administrative Services Act of 1949 cy's needs to more than one source would "(B) the time and place for the opening of
(41 U.S.C. 251 et seq.) is amended- compromise the national security. the sealed bids; and
(1) by striking out section 303 (41 U.S.C. "(f) An executive agency may not award a "(3) in the case of competitive proposals-
253) and the heading of such section and in. contract using noncompetitive procedures "(A) a statement that the proposals are
serting in lieu thereof the following unless- intended to be evaluated with, and awards
"COMPETITION REQUIREMENTS
"(1) in the case of any contract other than made after, discussions with the offerors
a small purchase, a notice has been pub- but might be evaluated and
"SEC. 303. (a) Except as provided in sub- lished with respect to such contract pursu- out discussions with the offerors; andd with-
section (e) or otherwise authorized by law, ant to section 313 and all bids, proposals, "(B) the time and place for submission of
executive agencies shall use competitive and quotations received in response to such proposals.
procedures in making contracts for property notice have been considered by such execu-
and services. Executive agencies shall use tive agency; and
advance procurement planning and market "(2) in the case of any contract exceeding "SEC. 312E (a) An executive Aagency shall
research and shall prepare specifications in $100,000, the use of such procedures is ap- evaluate sealed bids and competitive propos-
such a manner as is necessary to obtain ef- proved by the head of the organizational als based on the factors specified in the so-
fective competition with due regard to the element of such executive agency which has licitation.
nature of the property or services to be ac- the responsibility to enter into such con- "(b) All sealed bids or competitive propos-
quired. Executive agencies shall use the tract or by a designee of the head of such als received in response to a solicitation may
competitive procedure or combination of organizational element who is higher in be rejected if the head of the executive
competitive procedures that is best suited such organizational element than the con- agency determines that such action is in the
under the circumstances of the procure- tracting officer issuing the solicitation with public interest.
ment action and shall specify its needs and respect to such contract."; shall be
solicit bids, proposals, or quotations in a (2) by adding at the end of section 309 (41 th 11(c) Sealed bids place s tat opened pubcita-ed in manner designed to achieve effective compe- U.S.C. 259) the following new subsections: tion. The e time and executive place agency the evaluate
tition for the contract. "(b) The term 'executive agency' has the the without discussions with the agency shall tbid-
(b) An executive agency may award a same meaning as provided in section 4(a) of derrs bids shall, as provided s
contract under this title in the procurement the Office of Federal Procurement Policy (b), and
award except r provided e s sable
of property or services in order to establish Act (41 U.S.C. 403(a)), except that such promptness p n award a contract with reasonable
or maintain any alternative source or term does not include the departments or romtess so the the bidder whose n sources of supply of such property or serv- establishments specified in section 2303(a) bid conforms to the sUnit d States, nd c most
ices if the executive agency determines that of title 10, United States Code. eying advantageous to the United Stonud-
to
to do so would (1) Increase competition and "(c) The term 'competitive procedures' ed eying in the price ri the solicitation the other facer includ-
would likely result in reduced overall costs means procedures under which an executive 311(b)(1). tTwa daofa a contract under shall be
for such procurement, or for any anticipat- agency enters into a contract after soliciting mby transmitting award of written notice the
ed procurement, of such property or serv- sealed bids or competitive proposals from made
notce of te
the successful bidder.
mobilization
ices, or (2) be in the interest of industrial more than one source that is capable of sat- award l) the executive gein case of a national emergen- isfying the needs of the executive agency. e(com The executiagency shall evalu-
a
cy. "(d) The term 'noncompetitive prose- ate competitive proposals and may award a
(c) Procurement regulations shall include dures' means procedures other than compet- contract-
special simplified procedures and forms for itiveprocdurs.
small Purchases to facilitate making small f after timeio r with the
g "(e) The term 'small purchase' means any offerors at any y time aft fter receipt o ipt of the he pro-
purchases efficiently and economically. Purchase or contract which does not exceed prior to the award of the con-
"(d) For other than small purchases, an pedals and
executive agency, when using competitive be5,divid d intoseveral procurementprocurementsshall r not tract; or
procedures
- pi. "(B) without discussions with the offerors
"(1) shall solicit sealed bids when- manly for the purpose of using the small beyond discussions conducted for the pur-
"() time permits sealed
solicitation, submis- purchase procedures."; and pose of minor clarification.
Sion, and evaluation the
bids; (3) by adding at the end thereof the fol- "(2) In the case of award of a contract
"(B) the award will
o be made on the basis lowing new sections: under paragraph (1)(A), the executive
of price and other factors considered; "SOLICITATION REQUIREMENTS agency shall conduct, before such award,
"(C) it is not necessary to conduct discus- "SEC. 311. (a)(1) Each solicitation under written or oral discussions with all responsi-
sions with the responding sources about this title shall include specifications ble offerors who submit proposals within a
their bids; and which- competitive range, price and other evalua-
"(D) there is a reasonable expectation of "(A) consistent with the needs of the ex- tion factors considered.
receiving more than one sealed bid; ecutive agency, permit effective competi- "(3) In the case of award of a contract
"(2) shall request competitive proposals tion; and under paragraph (1)(B), the executive
when sealed bids are not required under "(B) include restrictive provisions or con- agency shall award the contract based on
clause (1) of this subsection. ditions only to the extent necessary to satis. the proposals as received (and as clarified, if
"(e) An executive agency may use non- fy such needs or as authorized by law. necessary, in discussions conducted for the
competitive procedures only when- "(2) For the purposes of paragraph (1), purpose of minor clarification).
"(1) the property and services needed by the type of specification included in any so- "(4) The executive agency shall, except as
the Government are available from only one licitation shall depend on the nature of the otherwise provided in subsection (b), award
source and no other type of property or needs of the executive agency and the a contract with reasonable promptness to
services will satisfy the needs of the execu- market available to satisfy such needs. Sub- the responsible offeror whose proposal is
tive agency; jest to such needs, specifications may be most advantageous to the United States,
"(2) the executive agency's need for the stated in terms of-
property or services is of such unusual and "(A) function so that a variety of products c1 deducing theprice
solicitat on other
underc section
compelling urgency that the Government or services may qualify; 311(b)(1). The executive agency shall award
would be seriously injured by the delay in- "(B) performance, including specifications the contract by transmitting written notice
volved in using competitive procedures; of the range of acceptable characteristics or of the award to such offeror and shall
"(3) it is necessary to award the contract of the minimum acceptable standards; or promptly notify all other offerors of the re-
to a particular source or sources in order to "(C) design requirements.
maintain an essential industrial capability "(b) Each solicitation for sealed bids or je"(e)nIff thelheadpofaan executive agency
in the United States or to achieve national competitive proposals other than for small considers that any bid received under sealed
industrial mobilization; purchases shall include, In addition to the bid procedures evidences a violation of the
"(4) the terms of any international agree- specifications described in subsection (a)- antitrust laws, he shall refer the bid to the
ment or treaty between the United States "(1) a statement of- Attorney General for appropriate action.
meat be made through another executive "(A) a statement that sealed bids will be
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November 11, 1988 CONGRESSIONAL RECORD - SENATE S 16001
"raocueassm" rrcnes "MI the reason under section 303(e) for Mons conducted on the proposal under this
"SEc. 313. (a$ II opt as provided fasud the uue o& noncowipett a peeeedweli and chapter, pricing, or performance. of the eon-
section (c)- "t5rt't'hepoO n-ot the offlcease co' employ- tract or subcontract.
"(A) an executive agency Intending to so- ees of the executive agency who required "M The requirements of this subsection
licit bide, proposals. or quotations for a con- and approved the use of noncompetitive need not be applied to contracts or subcon-
tract for property or services at a prim ex- procedures in such Proeurerner S. tracts where the price is based on adequate
ceeding $10,000 shall furnish for publication "(e) The information ineHried in the price competition, established catalog or
by the Secretary of Commerce a notice de- record established and maib ined under market prices of commercial items said in
scribed In subsection (b), , and subsection (a) shall be transmitted it[ the substantial quantities to the general public,
"(B) an executive agency awarding a con- Federal Procurement Data Center referred prices set by law or regulation or, in exeep-
tract for property or services at a price ex- to in section 6(dX5) of the Office of Federal tional cases where the head of the executive
seeding $10,000 shall furnish for publication Procurement Policy Act (41 U.S.C. agency determines that the re reanente of
by the Secretary of Commerce a notice an- 40X5))?`? this subsection may be waived and states in
Trouncing such award if there is likely to be (b) The table of contents of such Act is writing his reasons for such determina-
pabtislt promptly in the Commerce Bualiress Lion 308 and inserting in lieu thereof the Sus. 103. (a) Title III' of the Federal Prop-
Daily each notice required by paragraph (1). fo1l0rring erty and Administrative Services Act of 1949
"(3) Whenever an executive agency Is re- "Sec. 303. Competition requirements "- (41 U.S.C. 251 et see,.) is amended-
quired by paragraph (1 XA) to furnish a and - (1) in section 302 (41 U.S.C 252)-
notice of a solicitation to the Secretary of (21 by inserting after the item relating to (A) by striking out the second sentence in
Commerce, such executive agency may section 310 the following new Mears subsection (b);
not- "Sec. 311. Solicitation requirements. (B) by striking out subsections (c) and td);
"(A) issue such solicitation earlier than "Sea 312 Evaluation of bids; awards. and
fifteen days after the date on which such "Sec. 313. Procurement notice.. (C) by redesignating subsections (o) and
notice is published by the Secretary of Cvm- "Sec. 314. Record requirements.". (ii as subsections(CI and (dh neaPoetively;
mercer or (2) by striking, out the hoe ist of section,
"(B) establish a deadline for the submis- COST A>m PRICING DATA 304 and inserting in lieu cheroot the follow-
sion of bids. Proposals, or quotations in re- Sm 102 Section 304 of the Federal Prop- inn:
sponge to such solicitation that is earlier arty and Administrative. Services dot ad 1141
than thirty days after the date on which (41 U.S.C.- 264) is amended, by adding at the ' OnTRACCr es urae>K ~":
such solicitation is issued. end thereof. the following new aubsoction (3) in section 304 (41 .S.C. 254)-
"(b) Each notice required by subsection "(d)(1) A prime. contractor or say subcoa- (A) by striking out "ngothOed Pursuant
(a)(1)(A) shall include- tractor shall be required to submit cost or to section 302(cY' in the first sentence of
"(1) a description of the property or serv- pricing data under the circurestances listed subsection (a> and insestiltR in lieu thereof
ices to be contracted for, which description below, and shall be required to certify that, "awarded using other than sealed bid proce-
is not unnecessarily restrictive- of eampeti- to the best of ilia knowledge and belief. the dures":
tion; cost or pricing data he submitted was aecu- (B) by striking out "negotiated pursuant
"(2) the name+and address of the officer rate, complete, and current- - to section 302(c)" In the second sentence of
or employee of the executive agency who "(A) prior to the award of any prime eon- subsection (a) and inserting in lien thereof
may be contacted for the Purpose of obtain- tract under this title using other than "awarded after using other then sealed bid
ing a copy of the solicitation; sealed bid procedures, where the price is ex- probes- and
"(3) a statement- that any person may pected to exceed $100,000; (C> by striking out "negotiated without
submit a bid, proposal, or quotation which "(H) prior to the pricing of any contract advertising pursuant to authority contained
shall be considered by the executive agency; change or modification for which the price in this Aet" In the first sentence of subsec-
and adjustment is expected to exceed $100,000. tion (c) and Inserterg'in lien thereof "award
"(4) in the case of a procurement using or such leaser amount as may be prescribed ed after acing other than seekd bid proce-
noncompetitive procedures,, a statement of by the head od. the agency; dures"`
the reason justifying the use of noncompeti- "(C) prior to the award of a subcontract at (4) in section 301(41 U.S.C: 207)-
tive procedures and the Identity of the in any tier,. where the prime contractor and (A) by striking out "Except as provided in
tended source. each higher tier subcontractor have-been re- subsection (b), and exceptr' in the second
"(c)(1) A notice is not required under sub- quired, to famish such it aeat4lhsA~ 1f the sentence of subsection (a) and inserting. in
section (a)(1> if the notice would disclose pew of such subcontract is, expected to flour thereof "Except
the executive agency's needs and the diselo. exceed $100,000; or (B) by striking out subsection (b);
sure of such needs would compromise. the "(D) prior, to the pricing of any contract (C) by striking out "by paragraphs (11)-
national security. change modification to s suleaotraet oov
"(2) The requirements of subsection (13), or (14) of section 302(c)," In Subsection
cued by clause (C>.- for which glee price ad-
(a)(1 )(A) apply-
"(A) >(A) do any not t
procurement under conditions justrnent Is expected to exceed $100.000, or
such lower in clause (2), (31,. (41, or (5l' of sec- aser amount as may be prescribed by
the headof the ages .
lion described
; and
"(2) Any prime
"M in the case of any procurement for brad or change or modification which the head of the executive agency car- cafe is required agp thereto under pder whichf a shai-
, t thshalt
rying out such procurement makes a deter- contain a provision that the price
or fee, tht e lie, shall
mination in writing, with the concurrence of G veramcnt' incu g pos e
the Administrator of the Small Business Ad- be ato exclude significant iest sums
ministration, that it is not appropriate or by be adjusted
which it lb the ex-
reasonable to publish a notice before issuing may be determined was i increased
ed
a solicitation. ecutive agency that such price w
because the contractor or any subcontractor
"ascoan AEQUIU MSNTS required to furnish such A certificate, fur-
"Sac. 314. (a1 Each executive agency shall
establish and maintain for a period of five
years a record, by fiscal year, of the pro-
curements, other than small purchases, In
such fiscal year in whdch-
"(1) noncompetitive procedures were used;
and
"(2) only one bid or proposal was received
after competitive procedures were used.
"(b) The record established under subsea'
tion (a) shall include, with respect to each
procurement-
"(1) information identifying the source to
whom the contract was awarded;
"(2) the property or services obtained by
the Government under the procurement;
"(3) the total cost of the procurement;
Dished cost or pricing data which, as of a
date agreed upon between the parties
(which date shall be as close to the date of
agreement on the price as is practicable),
was inaccurate, incomplete, or noncurrent.
"(3) For the purpose of evaluating the ac-
curacy, completeness, and currency of cost
or pricing data required to be submitted by
this subsection, any authorized representa-
tive of the head of the agency who is an em-
ployee of the United States Government
shall have the right, until the expiration of
three years alter final payment under the
contract or subcontract, to examine all
books, records, documents, and other data
of the contractor or subcontractor related
to the proposal for the contract, the discus-
(D) by redesignating subsection (c) as sub-
section (b): and
(E) by striking out subsection (d);
(5) by striking out "entered into pursuant
to section 302Cc) without advertising." in
section 308 and inserting in lieu thereof
"made or awarded after using other than
sealed bid procedures"; and
(6) by striking out "section 302(c)tl51 of
this title without regard. to the advertising
requirements of sections 302(c) and 303." in
section 310 and inserting in lieu thereof
"the provisions of this title relating to other
than sealed bid procedures.".
(b) The table of contents of such Act is
amended by striking out the item relating to
section 304 and inserting in lieu thereof the
following:
"Sec. 304. Contract requirements.".
TITLE II-AMENDMENTS TO TITLE 10.
UNITED STATES CODE
coMPETITIvR AND NONCOMPT'f.TIVS
reocsDuara
Sac. 201. (a) Chapter 134 of title 10,
United States Code, Is amended-
(1) in section 2302-
(A) by inserting "the Secretary, any
Deputy Secretary, any Under Secretary, or
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any Assistant Secretary of Defense;" after "(2) shall request competitive proposals this chapter using other than sealed bid
"means" in clause (1); from responding sources when sealed bids procedures shall be treated
(B) by striking out clauses (2) and (3) of are not required under clause (1) of this sub- made with sealed bid procedures:f they were
section 2302 and inserting in lieu thereof section. title the following: "(e) The head of an agency may use non- '(2) Sections 25-a5 of 6a-5 41. -27 '(2) 'Agency' means any department or es- competitive procedures only when_ " (2) Sections on,ievaluation, a title ar."
tablishment specified in section 2303(a) of "(1) the property or services needed by "~ 2305. Solicitation, and award proce-
proce-
this title. the Government are available from only one dures; notice requirements
"(3) 'Competitive procedures' means pro- source and no other type of property or "(a)(1)(A) Each solicitation under this
cedures under which the head of an agency services will satisfy the needs of the agency; title shall include specifications which-
enters into a contract after soliciting sealed "(2) the agency's need for the property or "(i) consistent with the needs of the
bids or competitive proposals from more services is of such unusual and compelling agency, permit effective competition; and
than one source that is capable of satisfying urgency that the Government would be seri- "(ii) include restrictive provisions or condi-
the needs of the agency, ously injured by the delay associated with tions only to the extent necessary to satisfy
`(4) Noncompetitive procedures' means using competitive procedures;
procedures other than competitive proce- "(3) It is necessary to award the contract such needs or as authorized by law.
dures. "(B) For the purposes of subparagraph
(5) 'Small purchase' means any to a particular source or sources in order to (A) of this paragraph, the type of specifica-
purchase (A) maintain a facility, producer, manufac- tion included in any solicitation shall
or contract which does not exceed $25,000. turer, or other supplier available for fur- depend on the nature of the needs of the
A proposed procurement shall not be divid- nishing property or services in case of a na- agency and the market available to satisfy
ed into several procurements primarily for tional emergency, (B) achieve industrial mo- such needs. Subject to such needs, specifica-
the purpose of using small purchase proce- bilization in the case of such an emergency, tions may be stated in terms of-
dures."; or (C) establish or maintain an essential re-
(2) in section 2303(a)- search capability to be provided by an edu- (i) function so that a variety of products
(A) by redesignating clauses (1), (2), (3), cational or other nonprofit institution or a or services may erformanqualify;
(4), and (5) as clauses (2), (3), (4), (5), and research and development center funded by of the range of acceptable characteristics or
(6), respectively; and
(B) by inserting before clause (2) (as re- the United States; of the minimum acceptable standards; or
designated)
esi bed by ting before a )following: "(4) the terms of any international agree- "(III) design requirements.
"(1) Tby subcla s of )) the ment or treaty between the United States "(2) Each solicitation for sealed bids or
(3) by "(1 The striking out sections 2304 and 2305 Government and a foreign government or competitive proposals other than for small
and inserting in lthereof the following: international organization, or the directions purchases shall at a minimum include, in
2304. and erting in lieu i requirements of any foreign government reimbursing the addition to the specifications described in
"(a) Except ti agency for the cost of the procurement of paragraph (1) of this subsection-
"(a) in subsection (e) the property or services for such govern-
of this section or otherwise authorized by ment, have the effect of requiring the use of (I) a all statement of-icant law, the head of an agency shall use compet- noncompetitive procedures; "ic eign ecutiv agency factorse including y ex-price,
itive procedures in making contracts for "(5) a statute authorizes or requires that pects consider the cider in alutireasonably or
property or services. The head of an agency the procurement be made through another competitive proposals; aang sealed bids or
shall use advance procurement planning agency or from a specified source: or the ) h relative and
and market research and shall prepare agency's need is for a brand-name commer- "(ii) th relative importance assigned to
specifications in such a manner as is neces- cial item for authorized resale; or "( each of in those factors;
sary to obtain effective competition with "(6) the disclosure of the agency's needs I) the menof sealed lds-
due regard to the nature of the property or to more than one source would compromise evaluated aated statemen without t that seal discussions ed with hs will d-
services to be acquired. The head of an the national security. wit the bid-
agency shall use the competitive procedure "(f) For the purposes of applying section ders; and
or combination of competitive procedures 2304(e)(1) hereof: (A) property or services "(ii) the time and place for the opening of
that is best suited under the circumstances shall be considered to be available from a the sealed bids; and
of the procurement action and shall specify source If such source has the capability to "(C) in the case of competitive proposals-
the needs of the agency and solicit bids or produce the property or deliver the service "(I) a statement that the proposals are in-
proposals in a manner designed to achieve in accordance with the Government's speci- tended to be evaluated with, and awards
effective competition for the contract. fications and delivery schedule, and (B) in made after, discussions with the offerors
"(b) The head of an agency may provide the case of the procurement of technical or but might be evaluated and awarded with-
for the procurement of property or services special property which has required a sub- out discussions with the offerors; and
in order to establish or maintain any alter- stantial initial investment or an extended (ii) the time and place for submission of
native source or sources of supply under period of preparation for manufacture, and proposals.
this title using competitive procedures but where it is likely that production by a "(b)(1) The head of an agency shall evalu-
excluding a particular source for that prop- source other than the original source would ate sealed bids and competitive proposals
deterty or services if such
that to do head of an agency result in
would (1 increase by reason of additional ucacost to tion of the based solely on the factors specified in the
solicitation.
or maintain competition and would likely would result in duplication of necessary "(2) All sealed bids or competitive propos-
result in reduced overall costs for such pro- preparation which would unduly delay the als received in response to a solicitation may
curement, or for any anticipated procure- procurement of the property, the property be rejected if the head of an agency deter-
ment, of property or services, (2) be in the may be deemed to be available only from mines that such action is in the public Inter-
interest of industrial mobilization in case of the initial source and may be procured est.
a national emergency, or (3) be in the inter- through noncompetitive procedures. "(3) Sealed bids shall be opened publicly
est of national defense in establishing or "(g) The head of an agency may not at the time and place stated in the solicita-
maintaining an essential research capability award a contract using noncompetitive pro- tion. The head of an agency shall evaluate
to be provided by an educational or other cedures unless- the bids without discussions with the bid-
nonprofit. institution or a research and de- "(1) the use of such procedures has been ders and shall, except as provided in para-
velopment center funded by the United justified in writing; graph (2) of this subsection, award a con-
States. "(2) a notice has been published with re- tract with reasonable promptness to the re-
"(c) Procurement regulations shall include spect to such contract pursuant to section sponsible bidder whose bid conforms to the
special simplified procedures and forms for 2305 (c) of this title and all bids or proposals solicitation and is most advantageous to the
small purchases to facilitate making small received in response to such notice have United States, solely considering the price
purchases efficiently and economically. been considered by such head of an agency; and the other factors included In the solici-
"(d) For other than small purchases, the and tation under subsection (a)(2)(A) of this sec-
head of an agency, when using competitive "(3) in the case of any contract exceeding tion. The award of a contract shall be made
procedures- $100,000, the use of such procedures is ap- by transmitting written notice of the award
"(1) shall solicit sealed bids when- proved by the head of the organizational to the successful bidder.
"(A) time permits the solicitation, submis- element of such agency which has the re- "(4)(A) The head of an agency shall evalu-
sion, and evaluation of sealed bids; sponsibility to enter into such contract or ate competitive proposals and may award a
"(B) the award will be made on the basis by a designee of the head of such organiza- contract-
of price and other price-related factors; tional element who is higher in such organi- "(I) after discussions conducted with the
"(C) it is not necessary to conduct discus- zational element than the contracting offi- offerors at any time after receipt of the ero-
sions with the responding sources about cer issuing the solicitation with respect to posals and prior to the award of the con-
their bids; and such contract.
"(D) there is reasonable expectation of re- "(h) For the tract; or
ceiving more than one sealed bid; purposes of the following "(i without ions discussions with the offerors
laws, purchases or contracts made under beyond discussions conducted for the pur-
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CONGRESSIONAL RECORD - SENATE S 16003
pose of minor clarification where it can be
clearly demonstrated from the existence of
effective competition or accurate prior cost
experience with the product or service that
acceptance of an initial proposal without
discussions would result in fair and reason-
able prices.
"(B) In the case of award of a contract
under subparagraph (A)(i) of this para-
graph, the head of an agency shall conduct,
before such award, written or oral discus-
sions with all responsible offerors who
submit proposals within a competitive
range, price and other evaluation factors
considered.
"(C) In the case of award of a contract
under subparagraph (A)(ii) of this para-
graph, the head of an agency shall award
the contract based on the proposals received
(and as clarified, if necessary, in discussions
conducted for the purpose of minor clarifi-
cation).
"(D) The head of an agency shall, except
as provided in paragraph (2) of this subsec-
tion, award a contract with reasonable
promptness to the responsible offeror whose
proposal is most advantageous to the United
States, solely considering price and other
factors included in the solicitation under
subsection (a)(2)(A) of this section. The
head of the agency shall award the contract
by transmitting written notice of the award
to such offeror and shall promptly notify all
other offerors of the rejection of their pro-
posals.
"(5) If the head of an agency considers
that any bid or proposal evidences a viola-
tion of the antitrust laws, he shall refer the
bid or proposal to the Attorney General for
appropriate action.
"(c)(1)(A) Except as provided in para-
graph (3) of this subsection-
"(I) the head of an agency intending to so-
licit bids or, proposals for a contract for
property or services at a price expected to
exceed $10,000 shall furnish for publication
by the Secretary of Commerce a notice de-
scribed in paragraph (2) of this subsection;
and
"(ii) the head of an agency awarding a
contract for property or services at a price
exceeding $10,000 shall furnish for publica-
tion by the Secretary of Commerce a notice
announcing such award if there is likely to
be any subcontract under such contract.
"(B) The Secretary of Commerce shall
publish promptly in the Commerce Business
Daily each notice required by subparagraph
(A) of this paragraph.
"(C) Whenever a head of an agency is re-
quired by subparagraph (A)(i) of this para-
graph to furnish a notice of a solicitation to
the Secretary of Commerce, such head of an
agency may not-
"(I) issue such solicitation earlier than fif-
teen days after the date on which such
notice is published by the Secretary of Com-
merce; or
"(ii) establish a deadline for the submis-
sion of all bids or proposals in response to
such solicitation that is earlier than thirty
days after the date on which such solicita-
tion is issued.
"(2) Each notice required by paragraph
(1)(A)(i) of this subsection shall include-
"(A) an accurate description of the prop-
erty or services to be contracted for, which
description is not unnecessarily restrictive
of competition;
"(B) the name and address of the officer
or employee of the agency who may be con-
tacted for the purpose of obtaining a copy
of the solicitation;
"(C) a statement that any person may
submit a bid or proposal which shall be con-
sidered by the agency; and
"(D) in the case of a procurement using
noncompetitive procedures, a statement of
the reason justifying the use of noncompeti-
tive procedures and the identity of the in-
tended source.
"(3)(A) A notice is not required under
paragraph (1)(A) of this subsection if-
"(I) the notice would disclose the agency's
needs and the disclosure of such needs
would compromise the national security; or
"(ii) the proposed noncompetitive procure-
ment would result from acceptance of an
unsolicited research proposal that demon-
strates a unique or innovative research con-
cept and the publication of any notice of
such unsolicited research proposal would
disclose the originality of thought or inno-
vativeness of the proposed research or pro-
prietary data associated with the proposal.
"(B) The requirements of paragraph
(1)(A)(i) of this subsection do not apply-
"(I) to any procurement under conditions
described in clause (2). (3), (4), or (5) of sec-
tion 2304(e) of this title; and
"(ii) in the case of any procurement for
which the head of the agency carrying out
such procurement makes a determination in
writing, with the concurrence of the Admin-
istrator of the Small Business Administra-
tion, that it is not appropriate or reasonable
to publish a notice before issuing a solicita-
tion."; and
(4) by adding at the end thereof the fol-
lowing new section:
"? 2316. Record requirements
"(a) Each head of an agency shall estab-
lish and maintain for a period of five years a
record, by fiscal year, of the procurements,
other than small purchases, in such fiscal
year in which-
"(1) noncompetitive procedures were used,
and
"(2) only one bid or proposal was received
after competitive procedures were used.
"(b) The record established under subsec-
tion.(a) of this section shall include, with re-
spect to each procurement-
"(1) information identifying the source to
whom the contract was awarded;
"(2) the property or services obtained by
the Government under the procurement;
"(3) the total cost of the procurement;
"(4) the reason under section 2304(e) of
this title for the use of noncompetitive pro-
cedures; and
"(5) the position of the officers or employ-
ees of the agency who required and ap-
proved the use of noncompetitive proce-
dures in such procurement.
"(c) The information included in the
record established and maintained under
subsection (a) shall be transmitted to the
Federal Procurement Data Center referred
to in section 6(d)(5) of the Office of Federal
Procurement Policy Act (41 U.S.C.
405(d)(5)).".
(b) The table of sections at the beginning
of such chapter is amended-
(1) by striking out the items relating to
sections 2304 and 2305 and inserting in lieu
thereof the following,
"2304. Competition requirements.
"2305. Solicitation, evaluation, and award
procedures; notice require-
ments.";
and
(2) by adding at the end thereof the fol-
lowing new item:
"2316. Record requirements.".
CONFORMING AMENDMENTS
SEC. 202. Chapter 137 of title 10, United
States Code, is amended-
(1) in section 2306-
(A) by striking out "may, in negotiating
contracts under section 2304," in the second
sentence of subsection (a) and inserting in
lieu thereof "may in awarding contracts
after using other than sealed bid proce-
dures";
(B) by striking out "negotiated under sec-
tion 2304" in the first sentence of subsection
(b) and inserting in lieu thereof "awarded
after using other than sealed bid proce-
dures";
. (C) by striking out "section 2304 of this
title," in subsection (c) and inserting in lieu
thereof "this chapter";
(D) in subsection (f)(1)-
(i) by striking out clause (A) and inserting
in lieu thereof the following:
"(1) prior to the award of any prime con-
tractunder this title after using other than
sealed bid procedures where the contract
price is expected to exceed $100,000;";
(ii) by striking out "negotiated" each
place it appears in the second paragraph;
(iii) by striking out "negotiation," in the
third paragraph and inserting in lieu there-
of "proposal for the contract, the discus-
sions conducted on the proposal under this
title,"; and
(iv) by striking out "$500,000" each place
it appears in clauses (B), (C), and (D) and
inserting in lieu thereof "$100,000; and
(E) by adding at the end thereof the fo-
lowing new subsection:
"(i) Except in a case in which the Secre-
tary of Defense determines that military re-
quirements necessitate the specification of
container sizes, no contract for the carriage
of Government property in other than Gov-
ernment-owned cargo containers shall re-
quire carriage of such property in cargo con-
tainers of any stated length, height, or
width.";
(2) by striking out subsection (b) of sec-
tion 2310 and inserting in lieu thereof the
following:
"(b) Each determination or decision under
section 2308(c), section 2306(g)(1), section
2307(c), or section 2313(c) of this title shall
be based on a written finding by the person
making the determination or decision,
which finding shall set out facts and circum-
stances that (1) clearly indicate why the
type of contract selected under section
2306(c) is likely to be less costly than any
other type or that it is impracticable to
obtain property or services of the kind or
quality required except under such a con-
tract, (2) support the findings required by
section 2306(g)(1), (3) clearly indicate why
advance payments under section 2307(c)
would be in the public interest, or (4) clearly
indicate why the application of section
2313(b) to a contract or subcontract with a
foreign contractor or foreign subcontractor
would not be in the public interest. Such a
finding is final and shall be kept available in
the agency for at least six years after the
date of the determination or decision. A
copy of the finding shall be submitted to
the General Accounting Office with each
contract to which it applies.";
(3) by striking out section 2311 and insert-
ing in lieu thereof the following: "The head
of an agency may delegate, subject to his di-
rection, to any other officer or official of
that agency, any power under this chap-
ter."; and
(4) by striking out "negotiated" in the
second sentence of section 2313(b) and in-
serting in lieu thereof "awarded after using
other than sealed bid procedures".
TITLE III-ADVOCATE FOR COMPETI-
TION; ANNUAL REPORT ON COMPE-
TITION
DEFINITION
SEC. 301. For the purposes of this title, the
term "executive agency" has the same
meaning as provided in section 4(a) of the
Office of Federal Procurement Policy Act
(41 U.S.C. 403(a)).
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S 16004 CONGRESSIONAL RECORD - SENATE November 11, 1983
ADVOCATE FOR COMPETITION AM%NDMENT NO. 2803 "(2) in the case of the procurement of
SEC. 302. (a)(1) There is established in (Purpose: To make conforming technical or special property which has re-
each executive agency an advocate for com- amendments) quired a substantial initial investment or an
petition. Mr. BAKER. Mr. President, I send extended period of preparation for manu-
(2) Each head of an executive agency an amendment to the desk on behalf facture, and where it is likely that produc-
shall- tion by a source other than the oninal
(A) designate for each executive agency of the distinguished Senator from source would result in additional cost
to the
one officer or employee serving in a position Maine (Mr. CoHEN) and I ask that it be Government by reason of duplication of in-
authorized for such executive agency on the stated by the clerk. vestment or would result in duplication of
date of enactment of this Act to serve as the The ACTING PRESIDENT pro tem- necessary preparation which would unduly
advocate for competition; pore. The clerk will report. delay the procurement of the property, the
(B) relieve such officer or employee of all The legislative clerk read as follows: property may be deemed to be available
duties and responsibilities that are incon- The Senator from only from the initial source and may be pro-
sistent with the duties and responsibilities Tennessee (Mr. BAKER)
of the advocate for competition; and for Mr. COHEN, proposes an amendment cured through noncompetitive procedures.
(C) provide such officer or employee with numbered 2603. On page 5, line 15, strike out "(f)", and
insert
such staff or assistance as may be necessary Mr. BAKER. Mr. President, I ask On page lieu
en (g)".lines
5, between thereof
to carry out the duties and responsibilities unanimous consent that further read- page ween 18 and 19, insert
of the advocate for competition. the following:
wig of the amendment be dispensed "(1) the use of such procedures has been
(b)(1) The advocate for competition shall with. justified in writing;
promote competition in the procurement of The ACTING PRESIDENT pro tem- On page 5, beginning with line 19, strike
property and services. pore. Without objection, it is so or- out all through ''purchase," on line 20, and
(2) The advocate for competition in an ex- insert in lieu thereof "(2)".
ecutive agency shall- dered.
(A) review the purchasing and contracting The amendment is as follows: On page 5, line 22, strike out ", proposals,
activities of the executive agency; On page 2, line 17, strike out "and" and and quotations and insert thereof "or pro-
(B) identify and report to the head of the insert in lieu thereof "or". posals".
executive agency- On page 3, line 4. beginning with ", pro- On page 6, line 1, strike out "('l)", and
(I) opportunities to achieve competition posals," strike out all through "quotations" insert in lieu thereof "(3)".
on the basis of price and other significant on line 5, and insert in lieu thereof "or pro On page 6, and the e sem ono . close quo-
factors in the purchases and contracts of posals". tation marks and tsemicolon.
the executive agency; On page 3, line 7, beginning with "award" On page 6, between lines 8 and 9, insert
(ii) solicitations and proposed solicitations strike out all through "in the" on line 8, and the following:
which include unnecessarily detailed specifi- insert in lieu thereof "provide for the". "(h) For the purposes of the following
cations or unnecessarily restrictive state- On page 3, line 10, strike out "of such", laws, purchases or contracts made under
ments of need which may reduce competi- and insert in lieu thereof "under this title this title using other than sealed bid proce-
tion in the procurement activities of the ex- using competitive procedures but excluding dures shall be treated as if they were made
ecutive agency; and a particular source for that". with sealed bid procedures:
(Iii) any other condition or action which On page 3, line 11, insert "or maintain" "(1) The Act entitled 'An Act to provide
has the effect of unnecessarily restricting after "increase". conditions for the purchase of supplies and
competition in the procurement actions of On page 3, line 14, strike out "or". the making of contracts by the United
the executive agency; and On page 3. line 15, Insert ", or (3) be in the States, and for other purposes', approved
(C) prepare and transmit to the head of interest of national defense in establishing June 30, 1936 (commonly referred to as the
the executive agency an annual report de- or maintaining an essential research capa- 'Walsh-Healey Act') (41 U.S.C. 35-45).
scribing his activities under this section. bllity to be provided by an educational or "(2) The Act entitled 'An Act relating to
ANNUAL REPORT other nonprofit institution or a research the rate of wages for laborers and mechan-
SEC. 303. (a) Not later than September 30 and development center funded by the Ics employed on public buildings of the
of each of 1983, 1984, 1985, and 1986, each United States" before the period. United States and the District of Columbia
head of an executive agency shall transmit On page 4, line 2, strike out "factors con- by contractors and subcontractors, and for
to the Committee on Governmental Affairs sidered", and insert in lieu thereof "price-re- other purposes', approved March 3, 1931
of the Senate and the Committee on Gov- lated factors". (commonly referred to as the 'Davis-Bacon
ernment Operations of the House of Repre- On page 4, line 13; strike out "and", and Act') (40 U.S.C. 276a-276a-5).".
sentatives an annual report including the in- insert in lieu thereof "or". On page 8, line 2, insert "at a minimum"
formation specified in subsection (b). On page 4, line 20, strike out "involved after "shall".
(b) Each report transmitted under subsec- in". and insert in lieu thereof "associated On page 8, line 10, insert "each of" before
tion (a) shall include- with". "those".
(1) a specific description of all actions that On page 4, line 22, beginning with "main- On page 9, line 3, insert "solely" after
the head of the executive agency intends to tain" strike out all through line 24, and "based".
take during the next fiscal year to- insert in lieu thereof "(A) maintain a facili- On page 9, line 15, insert "solely" before
(A) increase competition for contracts ty, producer, manufacturer, or other suppli- "considering".
with the executive agency on the basis of er available for furnishing property or serv- On page 10, line 3, insert "where it can be
price and other significant factors; and ices in case of a national emergency, (B) clearly demonstrated from the existence of
(B) reduce the number and dollar value of achieve industrial mobilization in the case effective competition or accurate prior cost
contracts entered into by the executive of such an emergency, or (C) establish or experience with the product or service that
agency after soliciting bids or proposals maintain an essential research capability to acceptance of an initial proposal without
from, or evaluating bids or proposals with be provided by an educational or other non- discussions would result in fair and reason-
discussions with, only one source; and profit institution or a research and develop- able prices" before the period.
(2) a summary of the activities and accom- ment center funded by the United States;". On page 10, line 23, strike out "received
plishments of the advocates for competition On page 5, line 3, insert "or international under sealed bid procedures", and insert in
of the executive agency during the fiscal organization" before the comma. lieu thereof "or proposal".
year in which the report is transmitted. On page 5, line 9, strike out "provides", On page 10, line 24, insert "or proposal"
TITLE IV-APPLICABILITY and insert in lieu thereof "authorizes or re- after "bid". .
SEC. 401. The amendments made by this quires". On page 11, line 5, strike out ", proposals.
Act shall apply with respect to any solicita- page 5, line 10, insert "from" after or quotations" and insert in lieu thereof "or
tions for bids or proposals issued on or after or proposals".
On page 5, line 11, insert "the agency's On page 11, line 8, strike out "exceeding",
the date two hundred and seventy days
after the date of the enactment of this At. for need
exceed". in lieu thereof "expected to
autis for a horized resaleor" after or". item and
Mr. BAKER. Mr. President, I ask On page 5, between lines 14 and 15, insert On page 12, line 8, strike out "bids, pro-
unanimous consent that the amend- the following: posals, or quotations", and insert in lieu
ments be considered and agreed to en "(f) For the purposes of applying subsec- thereof "all bids or proposals".
bloc. tion (e)(1)- On page 13, line 19, strike out "a", and
The ACTING PRESIDENT pro tem- "(1) property or services shall be consid- insert in lieu thereof "an accurate".
pore. Without objection, it is so or- ered to be available from a source if such- On page 14, strike out lines 9 through 11,
dered. source has the capability to produce the and insert in lieu thereof the following:
Without objection, the amendments property or deliver the service in accordance if-
with the Government's specifications and "(A) the notice would disclose the execu-
are agreed to en bloc. delivery schedule; and tive agency's needs and the disclosure of
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November 11, 1983 CONGRESSIONAL RECORD - SENATE
S 16005
such needs would compromise the national use of sole-source procurement. Events guards against unnecessary, sole-
security; or having overtaken this language, it is source contracting by providing limit-
"(B) the proposed noncompetitive pro- no longer that the Levin sole-source ed conditions under which agencies
curement would result from acceptance of provisions be a part of S. 338.9 are permitted to contract noncompeti-
an unsolicited research proposal that dem- The ACTING PRESIDENT pro tem- tively and by requiring agencies to
or rewarch conce tes a unique is iion of any notice of ore. The question is on agreeing to publicize prospective contracts to
spt and the publication of any notice pore. the marketplace for potential
such unsolicited research proposal would d the amendment.
h earch
disclose the originality of thought or inno- The amendment (No. 2604) was competitors. As a final check on non-
vativeness of the proposed research or pro- agreed to. competitive contracting, the bill estab-
prietary data associated with the proposal. AMENDMENT NO. 2605 lishes an advocate for competition and
On page 18, line 15, insert "contract" (Purpose: To make technical corrections) strengthens the recording and report-
before "price". Mr. BAKER. Now, Mr. President, I
out all through ing requirements.
On page 1line 24beginning, with line insert t 21, strike in lieu ieu send to the desk another amendment These procurement reform proposals
thereof the following: on behalf of the distinguished Senator are not new. In fact, the Armed Serv-
(B) by striking out subsections (c), (d), and from Maine (Mr. COHEN) and ask that ices Committee held hearings in 1959
(e) and insert in lieu thereof the following: it be stated. on legislation to provide competitive
"(c)(1) This title does not (A) authorize The ACTING PRESIDENT pro tem- negotiation equal status with formal
the erection, repair, or furnishing of any pore. The clerk will report. advertising. The Commission on Gov-
public building or public improvement, but The legislative clerk read as follows: ernment Procurement made similar
pro-
such authorization shall be required in the The Senator from Tennessee (Mr. BARER), recommendations to improve the pro-
same or any ntract as heretofore, ti (B) or permit
repainirs for Mr. Comm, proposes an amendment curement process In its 1972 report to
any bdi for roads, the sidewalks, , sewers, s con mains numbered 2605. Congress. Most recently, the Office of
buildings, n
of
or similar items using other than sealed bid Mr. BAKER. Mr. President, I ask Federal Procurement Policy adopted
procedures under section 303(d)(1), if the unanimous consent that further read- the Commission's recommendations in
conditions set forth in section 303(d)(1) ing of the amendment be dispensed its 1982 proposal for a uniform pro-
apply or the contract is to be performd out-' with. curement system, which served as the
side the United States. The ACTING PRESIDENT pro ter- basis for S. 338.
"(2) Section 303(d)(1) does not require the pore. Without objection, it is so or- Despite this consensus over the past
use of
ect od bid erocedu i cases in dered. quarter century that procurement n States which s Code. applies,"; 204(e) of and titl tle 2 23, United The amendment is as follows: reform is needed, and despite the fact
(C) by redesignating subsection (f) as sub- On page 27, strike out lines 18 and 17, and that the dollar value of Government
section (d); insert in lieu thereof the following: contracts has almost tripled during
The ACTING PRESIDENT pro tern- "(1) The Act entitled 'An Act to provide the past decade alone-from $57.5 bil-
pore. The question is on agreeing to conditions for the purchase of supplies and lion in 1972 to $158.9 billion in 1982-
the amendment. the making of contracts by the United the laws which have governed con-
The amendment (No. 2603) was States, and for other purposes', approved tracting since 1947 remain intact.
June 30, 1936 (commonly referred to as the
agreed to. 'Walsh-Healey Act') (41 U.S.C. 35-45). Under our current contracting laws,
AMENDMENT No. 2604 "(2) The Act entitled 'An Act relating to Government agencies are required to
(Purpose: To remove from the bill certain the rate of wages for laborers and mechan- promote the use of full and free com-
provisions enacted into law after the bill ics employed on public buildings of the petiton in the procurement of proper-
was reported to the Senate) United States and the District of Columbia ty and services. In Government con-
Mr. BYRD. Mr. President, I send an by contractors and subcontractors, and for tracting, competition is a marketplace
amendment to the desk in behalf of other purposes', approved March 3, 1931 condition which results when several
to as the 'Davis-Bacon
U.S.C. referred 276&-276a-5). contractors, acting independently of
Mr. LEvIN and ask that it be stated. AActt? (40 ') (40 (commonly
The ACTING PRESIDENT pro ter- The ACTING PRESIDENT pro ter- each other and of the Government,
pore. The clerk will report. The question is on agreeing to submit bids or proposals in an attempt
The legislative clerk read as follows: pore. the amendment. to secure the Government's business.
The Senator -from West Virginia (Mr. The amendment (No. 2605) was Currently, formal advertising is the
BYRD), for Mr. LEVIN, proposes an amend- agreed t0. preferred procurement procedure,
ment numbered 2604. ? Mr. COHEN. President, I am with negotiation authorized by pre-
ti Des ite this prefer-
o
p
r
unanimous consent that further read-
ing of the amendment be dispensed
with.
The ACTING PRESIDENT pro tem-
pore. Without objection, it is so or-
dered.
The amendment is as follows:
On page 5, line 24, strike out "agency;
and" and insert in lieu thereof "agency."'.
On page 6, beginning with line 1 strike out
all down through line 8.
On page 26, after the semicolon in line 20
insert "and".
On page 27, line 2, strike out "agency;
and" and insert in lieu thereof "agency.".
On page 27, beginning with line 3 strike
out all down through line 10.
? Mr. LEVIN. Mr. President, the pur-
pose of my technical amendment is to
strike from this bill certain provisions
I offered as an amendment to the bill
when introduced that have since been
enacted into law in S. 272, the small
business notice bill. S. 272 was signed
into law on August 11, 1983, and it is
my hope that its enactment will pro-
duce great savings from the reduced
.
ibed excep on
pleased that the Senate is considering sc
S. 338, the Competition in Contracting ence for competiton through formal
Act of 1983, which I introduced to in. advertising, however, negotiated con-
crease the use of competition in gov- tracts account for the vast majority of
ernment contracting and to impose government procurement dollars. Ne-
more stringent restrictions on the gi tiiateedd contrac gala ion berecognizescompeti-
awarding of noncompetitive, sole-
source contracts. and encourages competitive negotia-
This legislation was reported unani- tion when it is the appropriate con-
mously by the Governmental Affairs tracting method-but more than half
Committee on March 23 and by the of all negotiated contracts are sole-
Armed Services Committee on June sourced. According to figures compiled
27. I am pleased to have' Senators by the Federal Procurement Data
ROTH, LEVIN, RUDMAN, PERCY, PRYOR, Center, $79.2 billion of the $146.9 bil-
PROXMIRE, HEINZ, DURENBERGER, STE- lion spent on property and services
vENs, DANFORTH, MITCHEI.I., RIEGLE, over $10,000 in fiscal 1982 was negoti-
BINGAMAN, WIIsoN, ExoN, WARNER, ated noncompetitively.
GOLDWATER, and HATCH as cosponsors. While not all Government contracts
Competitive procurement, whether can be awarded competitively, too
formally advertised or competitively often agencies contract on a sole.
negotiated, is beneficial to the Govern- source basis when competition is avail-
ment. The Competition in Contracting able. A July 1981 General Accounting
Act recognizes that competitive con- Office (GAO) report, entitled "DoD
tracting takes more than one form and Loses Many Competitive Procurement
establishes an absolute preference for Opportunities," estimated that the
competition in the Federal procure- Defense Department failed to obtain
ment statutes. The legislation safe- competition in awarding $289 million
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S 16006 CONGRESSIONAL RECORD - SENATE November 11, 1983
in new fiscal 1979 contract awards sur- the use of noncompetitive negotiation. by the executive agencies is the "com-
veyed. Moreover, an April 1982 GAO Effective implementation of S. 338 petition is impracticable" exception-
report, entitled "Less Sole-Source, would rectify both problems. an enormous loophole. The use of
More Competition Needed in Federal The formal advertising requirement such broad exceptions to formal adver-
Civil Agencies' Contracting," found in present law is intended to keep the tising as a means to sole-source con-
that this problem was not confined to system honest and to secure the most tract often conceals the true reason
the DoD. According to this report, the advantageous contract for the Govern- for awarding a contract noncompetiti-
six civil agencies reviewed, which ment. The emphasis on formal adver- vely.
awarded new sole-source contracts to- tising, however, results in excessive S. 338 provides six exceptions to
taling $538.1 million, failed to obtain justification requirements for the use competitive procedures which permit
competition on an estimated 40 per- of negotiation, 'which is more appro- agencies to use noncompetitive proce-
cent of their contract awards. priate for complex procurements. If
mp t n is not a cone. I n oing
The benefits lost from awarding contracting officers need to consider codures in
sole-source contracts which could have factors other than price in making so, the bill shifts h not the possible. dong
been competed are numerous. First, awards, or wish to have any discus- having the omhas,s from
competition in contracting saves sions with prospective having to justify ired to having to s is
money. Studies have indicated that be- they must satisfy one of the statutory presently required, to u erne to juthe
emrThe
tween 15 and 50 percent can be saved exceptions that permit negotiation. Intent noncom is to noncompetitive
place procurements.
restrictions
through increased competition. In For all practical purposes, therefore, the use of noncompetitive ec 1977. the Defense Science Board competitive negotiation lacks recogni- m precluding its use when
(DSB) examined more than a dozen tion as a bona fide competitive tech- necessary. e without Awarding a contract con
examples of competed contracts for nique. tolenesbasis would for the ia
weapons and found significant evi- Our legislation removes the restric- sole-source basis woulof
dence of cost savings, with an average tion from-and the written justifica- time constitute a clear violation the
savings of nearly 15 percent. The DSB tion required for-competitive negotia- statute unless permitted by one of the
concluded that "competition is a pow- tion and places it on par with formal following six exceptions:
erful motivator for cost control." More advertising. Together, they constitute able from only a ali
avail-
irfr, the only a single s ouice is and no rce recently, the GAO reported, at Sena- competitive procedures, with excep- competitive e are av nab no
tor LAN's request, the results of the tions provided for noncompetitive pro- Sec econndalternatives are is of s such
competitive procurunusual ement for the T-3 cedures. The objective is to establish and , the compelling agency's need is cy such
tractor-a contract which initially was an absolute preference for competition the Government would urgency that
to have been awarded noncompetitive- and to provide more flexibility in con- the jured lauld be catedsly in with
ly. The GAO found that the lowest bid tracting. William Long, former Deputy using by the delay assoc iated with
in a competitive procurement for the Under Secretary for DOD Acquisition using competitive procedures;
T-3 tractor was 43 percent less than Management, testified last year at a Third, it is necessary to award the
the cost of the contract had it been Governmental Affairs hearing that contract to a particular source in order
awarded on a sole-source basis, this new approach to competitive pro- to maintain an essential industrial ca-
In March 1983, the Congressional curement best represents the real pro- pability, achieve industrial mobiliza-
Budget Office estimated that signifi- curement world. tion, or establish or maintain an essen-
cant savings could be achieved Under the Competition in Contract- tial research capability;
through the effective implementation ing Act, agencies are not only required Fourth, the terms of any interna-
of the Competition in Contracting Act. to obtain competition, but to increase tional agreement or treaty, or the di-
the CBO estimates that each 1 percent its effectiveness Agencies should be rections of any foreign government,
saved on new contract actions reduces required to obtain "effective competi- have the effect of requiring the use of
costs by about $200 million per year. tion" through advance procurement noncompetitive procedures;
Since studies on the use of competitive planning, market research, and the de- Fifth, a statute authorizes or re-
contracting have concluded that po- velopment of specifications which are quires that the procurement be made
tential savings range from 15 to 50 not restrictive of competition. We rec- through another agency or from a
percent, a conservative estimate of the ognize that this extensive an effort specified source; or the agency's need
savings resulting from this legislation may not be cost effective for small is for a brand-name commercial item
would be well over $2 billion. purchases. Therefore, this legislation for authorized resale; or
In addition to potential cost savings, provides a basis in statute for regula- Sixth, disclosure of the agency's
competition curbs cost growth. The tions to establish separate small pur- needs to more than one source would
Analytic Sciences Corporation (TASC) chase procedures for procurements compromise the national security.
completed a study in April 1982 which under $25,000, which would allow These six exceptions parallel the
compared cost growth between com- agencies to scale down their efforts as conditions under which the Comptrol-
petitive and noncompetitive programs, long as they obtained reasonable com- ler General has historically permitted
The TASC study found that cost petition. agencies to award on a sole-source
growth in programs during full-scale The procurement statutes authorize basis. Under the first exception, how-
development varied from 2 percent for negotiated procurement, but restrict ever, I feel there should be a "double
competitive programs to 40.2 percent its use to 17 conditions for defense check" for potential competition
for noncompetitive programs, while contracts and 15 conditions for civilian- before the sole-source award is made.
cost growth during production ranged contracts. While agencies are required This legislation would generally re-
from 9.65 to 12.7 percent. to award negotiated contracts competi- quire agencies to publish a notice of
The last, and possibly the most im- tively to the maximum extent practi- their prospective contracts over
portant, benefit of competition is its cable, negotiation can be-and fre- $10,000 in the Commerce Business
inherent appeal of fair play. Competi- quently is-noncompetitive. Beyond. Daily. The objective is to alert con-
tion maintains the integrity in the ex- the justification for negotiated pro- tractors, who may be capable of meet-
penditure of public funds by insuring curement, however, present law does ing the agency's needs but would have
that Government contracts are award- not require further justification for otherwise not known of the contract,
ed on the basis of merit rather than noncompetitive award. to submit offers. For contracts over
favoritism. Due to this lack of direct restriction $100,000, moreover, S. 338 would re-
I believe there are two primary on noncompetitive contracting, the ex- quire review by the head of the pro-
shortcomings in the present procure- ceptions to formal advertising in curing activity, or his or her designee,
ment statutes: First, they do not rec- present law are often used inappropri- before these contracts are negotiated
ognize negotiation as a legitimate com- ately to justify sole-source procure- noncompetitively.
petitive procurement procedure; and ment, rather than negotiation. The Absent from the list of exceptions to
second, they do not adequately restrict justification most frequently invoked 'competitive procedures are unsolicited
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November 11, 1983 CONGRESSIONAL RECORD - SENATE S 16007
proposals. While it may be the Gov- lions and those in their employ may Government. It would do this by
ernment's policy to foster and encour- logically or Justifiably perform". may changing the focus of the existing pro-
age the submission of unsolicited pro- be procured by competitive negotla- curement statutes to distinguish be-
posals, the regulations specifically tion-a time-tested method for acquir- tween truly competitive contracts and
state that such proposals should not ing professional services of this kind' those which are not awarded competi-
be merely an advance proposal for a Am I correct that this important dis- tively.
specific agency requirement which Unction will be preserved under the Currently, the procurement statutes
would normally be procured by com- language of section 303? do not stress the Government purchasing ng practices
petitive methods. S. 338 therefore re- Mr. COHEN. Yes; it would be pre- of
and Goinverernd focus simply on whether
quires agencies to conduct a market served' adver-
ideas, without disclosing the offeror's Mr. PERCY. I thank the Senator. I or a particular contract the was use of
ideas, proprietary information or solu- have also been concerned that the Used not or negotiated. important While hile in Gov-
tion contained in the unsolicited pro- Comptroller General has given an advertising very in order to determine whether overly restrictive interpretation to this ernment contracting, and remains the
posal, of
the substance of the proposal is avails,- definition of architecture 'and engi- preferred method of procurement
ble from another source. If publication neering services, and has decided on under our bill. it is not the only type
of an unsolicited proposal would dis- several occasions that surveying and of competitive contracting method
close the offeror's original thoughts or mapping services are not included- available. Our bill will encourage
proprietary information. S 338 However, the issue has been more re- broader use of other competitive con-
exempts such proposals from the cently addressed in the Supplemental tracting methods and stimulate great-
notice requirement. Appropriations Act for 1983. The sec- -er levels of real competition in Gov-
To facilitate oversight of noncom- Lion of that act appropriating funds ernment procurement. In addition, the
petitive contracts, the Competition in for the Corps of Engineers of the De- bill greatly narrows the number of ex-
Contracting Act also requires agencies parlment of the Army provides that ceptions in current law to using com-
to maintain a record, by fiscal year. contracts for architect and engineer- petitive practices and also requires a
identifying all sole-sourced procure- ing services, and surveying and map- procuring agency to, publish advance
ments. As proposed by Senator PavoR. ping services, shall be awarded in ac- notice of most large contracts. even
an advocate for competition In each cordance with title IX of the Federal those the agency feels should not be
procuring agency would be responsible property and Administrative Services competed, so that potential suppliers
for reporting the opportunities to Act of 1949 (40 U.S.C. 541 et seq-) can place bids. This provision would
achieve competition and any condi- . ? Under this language. the corps act as a double check on the agency
tions which could potentially restrict of Engineers will award contracts for and encourage the marketplace to be
competition. These new recording and mapping and surveying in accordance used for a wider variety of contracts.
reporting requirements would allow with the Brooks Act. Mr. President, it is true that this bill
the Congress, the Office of Federal Mr. COHEN. That is a positive step. would modify the procurement prac-
Procurement Policy, and senior agency I think it is important to note, more- tices of all Federal agencies. However,
officials to evaluate the progress of over, that this language does not only I am particularly concerned about in-
each agency in increasing the use of apply to the Corps of Engineers, cis but creasing the efficiency of procurement
competitive contracting. to all Government procuring g procedures in the Defense Department
The Competition in Contracting Act Mr. PERCY. Would the Competition because that is where 15 percent of all
builds on existing statutes to enhance in contracting Act then carry forward procurement dollars will be spent next
the use of competition in Government the construction of the Brooks Act year. Real purchases of le a goods,
contracting and to restrict sole-source contained in that language from the including It and procurement award to only those cases where it is Supplemental Appropriations Act? major weapons systems. will grow at
truly warranted. Within the new stat- Mr. COHEN? That is correct. m estiweap ate of 18 percent swat
utory framework, the evaluation and Mr. PERCY. I thank the Senator estimated rate of 1 ape cent at be-
award procedures would be the same from Maine for his most helpful clari- tween 1981 and 1987. This rate of
as those currently required for formal fication.? growth exceeds the 14 percent annual
advertising and negotiation. Consider- ? Mr. ROTH. Mr. President, I rise. in ate growth excrease he 1 percent during
Ing the history of Comptroller Gener- support of the Competition in Con- rat 3 peak years oh the curved using
al and court isions which have in- rpreted the preesent evaluation and be an grigiAct nal of scosponsor oaf the propos- up. development, end which totaled procurement
te
award procedures, I am confident this al and applaud Senator Comm for his anon el 1980 will c a level of
legislation can be quickly and easily efforts in drafting this important piece cover $130 billion i will thr e h a le el of
implemented. I strongly believe that of legislation. A similar bill was report- c Clearly, with this magnitude of
the Competition in Contracting Act ed out of my Committee on Govern- fyear. we must do cis nuanit de of
sets forth a workable solution to the mental Affairs late last year and I am funding u to insure that defense
ease dollars
problem of excessive sole-source very pleased that the committee was arble e to used insure and efficiently.
dcontracting. able to act quickly to report this meas- Af-
Mr. President, I urge the adoption of ure. I am convinced the bill will fairs My Committee 4mmittee days on on of hearings the Governmental l far
S. 338 and its conforming and techni- strengthen the use of competitive year held e the management of to far
cal amendments-S practices in Government procurement this this acquisition process. We heard
from the a~oninisWe heard
? Mr. PERCY. Mr. President, I rise activities. I would also like to com- testimony acquisition
dmi tt improve
with an inquiry. The Competition in mend very highly Senator TowsR, tea that it trying
eral Property and Awould revise the F*d- chairman of the dministrative Serv- Services and Senators Committee the rank- the effectiveness and reduce the costs
ices Act to broaden the requirements ing member of the committee, for of the procurement system. Deputy
for competition, but the language of their strong support and expeditious Secretary Thayer assured the commit-
section 303 contains the words ". - . action in reporting the bill out of their tee that he is focusing his attention on
except as ... otherwise authorized by committee. I know that they are com- a series of management Initiatives
law ...," carrying forward a very im- mitted to improving the defense acqui- which he believes would help to curb
portant distinction made in the Brooks sition process and I applaud them for the cost of the procurement system.
Yet, one problem for years has
Act, 40 U.S.C. 541. The distinction pro- their leadership on this bill.
vides that architect and engineering The Competition in Contracting Act plagued the DOD in its efforts to trn-massive , new
services, defined as "those professional of 1983, S. 338, will encourage greater weapons v the p 8ge and mat problem
services of an architectural or engi- levels of competition in Federal pro-
neering nature as well as incidental curement and impose new restrictions the failure of the Department to en-
services that members of these profes- on sole-sourcing contracts throughout courage real competition in contract-
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S 16008 CONGRESSIONAL RECORD - SENATE
November 11, 1983
ing. Some two-thirds of the value of Without competition in the acquisi- no proven commitment to increase the
all DOD procurements are noncom- tion process, there are few incentives levels of competitive procurement.
petitive, that is, not open to bidding or on the part of the contractor or the The size of these numbers and the
negotiation to all interested and quali- DOD to reduce costs. DOD is helping possible savings involved is almost
fied parties. Out of a total of $65 bil- to create a new "army," one composed beyond awarded by DOD in 1980, over $40 of a few select companies operating in billion was negotiated without compe- the warm glow of a monopoly con- and human comprehension. In
g actions year totaled $total 159 Federal Of this
tition. In one study, GAO reviewed 25 tract. There may be some rivalry amount, ns totaled $ within illion. this
contracts
contracts that it believed should have during the initial phases of a contract amount, actions witthe Depart-
competed and determined that award for research and development billion. et, only accounted for h1se
contracting officers did not make re- but frequently the contractors in- and, only ce percent of these
quired reviews to assure that competi- volved do not fight long enough to ations, ctions, and 35 percent of the DOD ac-
ac-
tion was impossible. In 70 percent of really challenge each other. In the other were words, d63 3 percent competitively. In
these cases, the contracting officers end, one firm usually becomes the sole $159r are with the total
placed contracts with companies their developer and producer of a weapon c1nt billion spent wth sole-source
supervisors had suggested. It appears for a decade or more. contracts.
that DOD is running an auction with- Competition in DOD programs is not Mr' esident, this or represents
out
out a caller and with only one partici- the only cost-reducing technique avail- nforts, ot only my and Senator C product ef-
who is admitted by special invita- able but it is one of the most impor- broad-based ut consideration a consen s
tion only. t . S. 338 ae within the
We need to insure com eti- tart. Unnecessary costs in defense pro- Senate. S. 338 has been carefully
tion in DOD greater p grams must be brought under control
ion in , of which reduction for several
must the ben, telteom and refined by both
is b soon for the lm ericare people dollars cannot
seat one. The fondness ct on DOD to sole not meed more l g. More
expenses. the Senate Committee on ate Armed
just one. its The
n ref DO to be not e has aunne be Stal ervices Committee. and the Furrmed
n pending Services CFurthermore, Ahermore, it
having a serious effect on our military back the increases In defense s
industrial base. The represents the first major effort by
practice of sole- originally proposed by the President. Congress to overhaul the Government
sourcing may contribute to reducing Without visible, effective and lasting Servic a Procurement eActefoe Armed
the number of firms willing to bid on improvements in DOD's efforts to buy
DOD projects by shutting out innova- more weapons systems, the clamor for Services Act of 1947 and
tive, smaller firms. For instance, only more defense cuts can all f25
get louder. tive Services Act of 1949. the
I am
legislat
legislat 50 percent of all defense c
One of the reasons the Government
c
ntracts and e
wi
ll
begwill begin the p roc-
only 8 firms conduct 45 percent of all ess of insuring more. effective manage-
defense research: Significantly, some ment of procurement by using the dis-
2,000 aerospace industry subcontrac- cipline of the marketplace to control
tors disappeared from 1968 to 1975, costs. I look forward to the passage of
many of them unique suppliers of this legislation to enhance competition
critical defense components. and I am pleased to join Senator
It is possible that excessive
C __ --
11 . . .. _ . .
use of
in
tracts on a sole-source basis s because
of the large number of statutory ex-
emptions from requirements for
sealed-bid procurement included in
these two procurement laws that have
been on the books relatively un-
changed for 35 years.
these contractors. By refusing=to open most pleased today that the Senate is seal 17 nprocess ere pecti ely. Until
up the DOD marketplace to competi- considering final passage of S. 338, the the Congress the Conpassed a relatively un-
tion, we may be forcing many compa- Competition in Contracting Act of
heralded
nies to fold or refuse to contract for 1983. I Joined with Senator COHEN in cies have bill been 3 montho ago, the egex-these ex defense projects, thereby reducing fur- cosponsoring this bill in February of emptions as the basis fore using the
ther any opportunity for competition. this year. S. 338 is similar to a bill Sen- process of negotiation instead of oo can be
ator
COHEN
and I t eosts use tof competitive cont actsuby 97th Congress t hatowasmrepor ed tby inglon bids, and ce basis shift to t need
DOD. Some studies suggest that as the Governn,en*oi toe :__ ing on stole-source basis without nee
through the use of competition in the
acquisition process. For example, one
analyst has estimated that competi-
tion and lack of extensive specs saved
$640 million on the procurement of
specialized ammunition for the A-10
aircraft. The Defense Science Board
found more than a dozen examples of
c
ompeted contracts for weapons such
as the AIM-7 missile and uncovered
significant evidence of cost savings
averaging nearly 15 percent. The
D.S.B. concluded that, "Competition is
a powerful motivator for cost control."
Yet, with all of this evidence, DOD
continually fails to use the forces of
the marketplace to reduce costs. DOD
claims that it is difficult to use com-
===.r vuiiea.gue, benator COHEN,
Mr. President, i am convinced that ably explained, S. 338 replaces these
this bill will accomplish two very im- numerous and loosely worded exemp-
portant things: It will save the Federal tions with six tightly drafted exemp-
Government large sums of money tipns to competition. Upon passage of
through increased competition leading this bill, no exception need be cited to
to lower procurement prices; and also, move from sealed bids to competitive
it wit"oster the growth and health of negotiation but moving from competi-
small business and industry which is tion to sole-source procurement will
so essential to our eco
n
omy and na- prove much more difficult.
tional defense
.
n ,.vmrE11T10N Included in this bill, but already
The way the Government spends its signed into law as an amendment to S.
procurement dollars-both in the De- 272, the Small Business Notice Act, S
on
partment of Defense and in the rest of August 11, 1983, is language I have at-
the Federal Government-has been tempted to have enacted for several
one of my greatest interests and areas years. The Levin sole-source amend-
of endeavor since I came to the ment requires that any time the Gov-
S
enate. During these last 5 years I torment intends to
11
procure on a sole-
ave as the Defense Science Board vocateeforc competitto ad- basis on the
noted, there is "very little definitive grounds that no
ion. Io say corn- otherebusiiness Is capable of producing
evaluation there
DOD on the rcase pelled because I find the level of coin- an item, the Government must publish
In the real
evalu ti n bcompetitiony
words, petition in Government procurement notice in the Commerce Business
of other sole-
DOD cannot stand the taste of the mt be only accepted knowledge that coin- source award, butnnviti gaany inter-
medicine it needs even though it has petition can reduce the cost of pro- ested party to respond to the listed
not tasted it very often. curement 25 percent or more, there is office, should they believe their firm
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November 11, 1983 CONGRESSIONAL RECORD - SENATE S 16009
could compete for the proposed con- sanely, never failing to grasp every and development center funded by the
tract. conceivable opportunity to insure that United States.
A second prong in this Levin sole- our procurement practices are sound; "(c) Procurement regulations shall include
source language requires signoff on and give every business in this land a special simplified procedures and forms for
small purchases to facilitate making small
the contracting officer's decision to go meaningful opportunity to compete purchases efficiently and economically.
sole source by the head of the proton- for these dollars, rather than funnel- "(d) For other than small purchases, an
ing activity. This signoff requirement ing precious taxpayers funds to a executive agency, when using competitive
operates on all procurements in excess chosen and unchallenged few. procedures-
of a certain threshold: $1 million in I want to commend Senator CoHEN ??(1) shall solicit sealed bids when-
the first year of operation; $500,000 in and his staff for their work in drafting "(A) time permits the solicitation, submis-
the second year, and $300,000 In the this bill, and also I want to commend sions, and evaluation of sealed bids;
third year. At the end of that time the the members of the Governmental Af- ??(B) the award will be made on the basis
conferees reserved the right to look at fairs and Armed Services Committees of price and other price-related factors;
lowering that threshold to the, for their wise and expeditious consid- "(C) it is not necessary to conduct. discus-
$ 100,000 level. eration of this bill. We have before us lions with the responding sources about
CERTIFICATION Or COST AND PRICING DATA now the product of long 9,nd thought- their bids; and
Mr. President, in addition to the ful consideration that deserves the "(D) there is a reasonable expectation of
receiving more than han one sealed bid;
tightened exemptions to competition support of every Member of the rceivshl request one sealed
proposals
and the Levin sole-source amendment, Senate.* when sealed bids are not required under
another item of particular interest to The ACTING PRESIDENT tem- clause (1) of this subsection.
me is an amendment I offered in pore. The bill is open to further "(e) An executive agency may use non-
markup in the Governmental Affairs amendment. If there be no further competitive procedures only when-
Committee that returns the threshold amendment to be proposed, the ques- "(1) the property or services needed by
for DOD contractor compliance with tion is on the engrossment and the the Government are available from only one
the requirement to certify cost and third reading of the bill. source and no other type of property or
pricing data as required by the Truth The bill was ordered to be engrossed services will satisfy the needs of the execu-
in Negotiations Act of 1962 (P.L. 81- for a third reading, was read the third tive agency;
653) to the same $100,000 level that time, and passed, as follows: "(2) the executive agency's need for the
must be abided by for doing business 8.338 property or services Is of such unusual and
compelling urgency that the Government
with the other procuring branches of Be it enacted by the Senate and House ql would be seriously Wured by the delay as-
the Federal Government. This act Representatives of the United States of sociated with using competitive procedures;
simply required that any contractor America in Conpr+ess assernbte4 That this ??(3) it is necessary to award the contract
awarded a contract in the absence of Act may be cited as the "Competition in to a particular source or sources in order to
competition for more than $100,000 Contracting Act of 3083". (A) maintain a facility, producer, manufao-
must certify that- TITLE I-A11613:NDM MTS TO FEDERAL tuner, or other supplier available for fur-
To the best of his knowledge and belief, PROPERTY AND ADDdINIt3TRATIVE nishipg property or services in case of a na-
the cost or pricing data he submitted was SERVICES ACT OF 1949 tinnal emergency. (B) achieve industrial mo-
accurate, complete, and current. bilization in the case of such an emergency.
Two years ago the conferees on the COMPSrrrlvE AND -NCO-"Err IvE PROCEDVRE4 or (C) establish or maintain an essential re-
fiscal year 1983 DOD authorization bill Ssc. 101. (a) Title III of the Federal Prop- search rational or capability other to be nonprofit ins provided by an titution ed edu-
accepted a House amendment that erty and Administrative Services Act of 1949 casearah and development censer funded ba
U.S.C. this threshold for certification (41 US.C. 251 et seq.) Is amended- (1) by striking out section 303 (41 U.S.C. the United States,
from $100,000 to $500,000. 253) and the heading of such section and in- "(4) the terms of any international agree-
Mr. President we have since learned serting in lieu thereof the following: ment or treaty between the United States
that with the passage of this amend- "corrPErITION UIREMENTS Government and a foreign government, or
ment the Department of Defense rou- international organisation, or the directions
"SEC. 303. (a) Except as provided in sub- of any foreign saver umt reimbursing the
finely fails to audit contracts in this section (e) or otherwise authorized by law. executive agency for the toot of the pro-
$100,000 to $500,000 range. Many of executive agencies shall use competitive curement of the property or services for
the spare parts horror stories and dis- procedures in making contracts for property . such government, have the effect of requir-
cussions of overpricing that have been or services. Executive agencies shall use ad- in& the use of noncompetitive procedures;
so much in the forefront during the vance procurement planning and market re ??(5) a statute authorizes or requires that
last year have resulted from contract search and shall prepare ary t apecillcations in the procurement be made through another
a manner as is necessary to obtain el. executive agency or from a specified source
modifications or ordering agreements such a
that did not breach this threshold- fectiv competition with due regard to the or the agency's need is for a brand-name
and thus escaped tight auditing atten- nature of the property agencies r services to be no- commercial item for authorized resale; or
quired. Executive tive ageshau use the "(6) the disclosure of the executive agen-
tion. Thank goodness for the DOD In- competitive procedure or combination of cy's needs to more tone source would
speCtor General's Office as they have competitive procedures that is best suited compromise tnational e than e security,
been Instrumental In catching many of under the circumstances of the procure- (p For the the
subseo-
PurD~ applying
these problems, but it is imperative ment action and shall specify its needs and tics (e) Or t
that we provide the DOD auditors solicit bids or proposals in a manner de- ?Y 1) property or services shall be conaid-
with the tools they need to demand signed to achieve effective competition for ered to be available from a source if such
the contract.
fair and accurate prices. "(b) An executive agency may provide for source has the capability to produce the
CONCLUSION the procurement of property or services in property or deliver the service in accordance
Mr. President, there are other provi- order to establish or maintain any alterna- with the Government's specifications and
sions in this bill that Senator COHm tive source or sources of supply under this delivery schedule; and
has mentioned, and the combination title using competitive procedures but ex- "(2) In the case of the procurement of
of these efforts should prove to be an cluding a particular source for that proper- technical or special property which has re-
important initiative and milestone in ty or services if the executive agency deter- quired a substantial Initial investment or an
mines that to do so would (1) increase or extended period of preparation for manu-
the annals of Government procure- maintain competition and would likely facture. and where it Is likely that produc-
ment law. result in reduced overall costs for such pro- tion by a source other than the original
We are asking the American public curement. or for any. anticipated procure- source would result in additional cost to the
to foot an enormous bill for Govern- ment, of such property or services, (2) be in Government by reason of duplication of in-
ment procurement, nearly 80 percent the interest of industrial mobilization in vestment or would result in duplication of
of that amount within the Depart- case of a national emergency, or (3) be in necessary preparation which would unduly
ment of Defense. We owe it to the the interest of national defense in establish- delay the procurement of the property, the
public and to American business to do ing or maintaining an essential research ca- property may be deemed to be available
otherh nonprofit Institution ion or afi a research cured through non omsource eive pocmaybe edures-
no less than these two things; Spend
these awesome amounts sensibly and
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S 16010 CONGRESSIONAL RECORD - SENATE November 11, 1983
"(g) An executive agency may not award a "(B) the relative importance assigned to
contract using noncompetitive procedures each of those factors; "PROCUREMENT NOTICE
unless- "(2) in the case of sealed bids- "SEC.
on 313. (a)(1) Except as provided in sub-
sub-
(1) the use of such procedures has been "(A) a statement that sealed bids will be section (n)-
justified in writing; and evaluated without discussions with the bid- "(A) executive agency intending to so-
"(2) a notice has been published with re- ders; and licit bids or proposals for a contract for
spect to such contract pursuant to section property or services at a price expected to
313 and all bids or proposals received in re- "(B) the time and place for the opening of exceed $10,000 shall furnish for publication
sponse to such notice have been considered the sealed bids; and by the Secretary of Commerce a notice de-
such executive agency. "(3) in the case of competitive proposals- scribed in subsection (b); and
by "(h) For the purposes of the following "(A) a statement that the proposals are "(B) an executive agency awarding a con-
laws, purchases or contracts made under intended to be evaluated with, and awards tract for property or services at a price ex-
this title using other than sealed bid proce- made after, discussions with the offerors
of fomme for pnoticetan-
dures shall be treated as if they were made but might be evaluated and awarded with- by the Secret 0 shall
with sealed bid procedures: out discussions with the offerors; and by the Secretary of Commerce a notice an-
"(1) The Act entitled 'An Act to provide "(B) the time and place for submission of nouncing such act if there is likely to be
conditions for the purchase of supplies and proposals. "(2) any subcoo ntract Secretary under such contract.
shall
making of contracts by the United "EVALUATION AND AWARD Publish promptly pr ptle In the Commerce momme Business
States, and for other purposes', approved "SEC notic required the Business
June 30, 1936 (commonly referred to as the . 312. (a) An executive agency shall Daily each notice reby paragraph (1).
June 30, 1936 (commonly
'Walsh-Healey
U.S.C. referred to. evaluate sealed bids and competitive propos- "(3) Whenever an executive agency Is re-
Act Act') entitled (1 .S. Act relating to als based solely on the factors specified in quired by paragraph (1)(A) to furnish a
the rate a wages fo'An
and relating to the solicitation. notice of a solicitation to the Secretary of
ice ratelof public laborers
buildings a the "(b) All sealed bids or competitive propos- Commerce, such executive agency may
United States and the District of Columbia als received in response to a solicitation may not-
by contractors and the District of
and for be rejected if the head of the executive "(A) issue such solicitation earlier than
other cr purposes, and subcontractors, March 3, f r agency determines that such action is in the fifteen days after the date on which such
(commonly purposes, approved p as the rchvis-Bac1931 on public interest. notice is published by the Secretary of Com-
Act') (40 U.S.C. rred-to as ). "(c) Sealed bids shall be opened publicly merce; or
(t' by adding at the end of section 309 (41 at the time and place stated in the solicita- "(B) establish a deadline for the submis-
U.S.C. 259) the following new subsections: tion. The executive agency shall evaluate sion of all bids or proposals in response to
"(.C The them llowintive agency' has the the bids without discussions with the bid- such solicitation that is earlier than thirty
sa a meaning
same meaning as provided in section as 4(a) of ders and shall, except as provided in subsec- days after the date on which such solicita-
of as pon ed in (a)il f tion (b), award a contract with reasonable tion is issued.
Ace Office der sement P a)), except en ouch promptness to the responsible bidder whose "(b) Each notice required by subsection
term does not include the departments or bid conforms to the solicitation and is most (a)(1)(A) shall include-
establi
h
s
ments specified in section 2303(a)
of title 10, United States Code.
"(c) The term 'competitive procedures'
means procedures under which an executive
agency enters into a contract after soliciting
sealed bids or competitive proposals from
more than one source that is capable of sat-
isfying the needs of the executive agency.
"(d) The term 'noncompetitive proce-
dures' means procedures other than compet-
itive procedures.
"(e) The term 'small purchase' means any
purchase or contract which does not exceed
$25,000. A proposed procurement shall not
be divided into several procurements pri-
marily for the purpose of using the small
purchase procedures."; and
(3) by adding at the end thereof the fol-
lowing new sections:
"SOLICITATION REQUIREMENTS
"SEC. 311. (a)(1) Each solicitation under
this title shall include specifications
which-
"(A) consistent with the needs of the ex-
ecutive agency, permit effective competi-
tion; and
"(B) include restrictive provisions or con-
ditions only to the extent necessary to satis-
fy such needs or as authorized by law.
"(2) For the purposes of paragraph (1),
the type of specification included in any so-
licitation shall depend on the nature of the
needs of the executive agency and the
market available to satisfy such needs. Sub-
ject to such needs, specifications may be
stated In terms of-
or(A) function so that a variety of products
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 other than for small
at a minimum purchases shall include, in
addition to the specifications described in
subsection (a)-
"(1) a statement of-
"(A) all significant factors, including
price, which the executive agency reason-
ably expects to consider in evaluating sealed
bids or competitive proposals; and
considering the price and the other factors
included in the solicitation under section
311(b)(1). The award of a contract shall be
made by transmitting written notice of the
award to the successful bidder.
"(d)(1) The executive agency shall evalu-
ate competitive proposals and may award a
contract-
"(A) after discussions conducted with the
offerors at any time after receipt of the pro-
posals and prior to the award of the con-
tract; or
"(1) an accurate description of the proper-
ty or services to be contracted for, which de-
scription is not unnecessarily restrictive of
competition;
"(2) the name and address of the officer
or employee of the executive agency who
may be contacted for the purpose of obtain-
ing a copy of the solicitation;
"(3) a statement that any person may
submit a bid, proposal, or quotation which
shall be considered by the executive agency;
and
"(B) without discussions with the offerors noncompetitive procedu es, a statements of
beyond discussions conducted for the pur- the reason Justifying the use of noncompets-
pose of minor clarification where it can be tive procedures and the identity of the in-
clearly demonstrated from the existence of tended source.
effective competition or accurate prior cost "(c)(1) A notice is not required under sub-
experience with the product or service that section (a)(1) if-
acceptance of an initial proposal without "(A) the notice would disclose the execu-
discussions would result In fair and reason- tive agency's needs and the disclosure of
able prices. such needs would compromise the national
"(2) In the case of award of a contract security; or
under paragraph (1)(A), the executive "(B) the proposed noncompetitive pro-
agency shall conduct, before such award
, curement would result from acceptance of
written or oral discussions with all responsi- an unsolicited research
dem-
ble offerors who submit proposals within a proposal
ester a unique innovative research
competitive range, price and other evalua- concept and the publication innoativy otearch
tion factors considered. such unsolicited research pr any notice would
"(3) In the case of award of a contract dthe esof earch ought would
under paragraph (1)(B), the executive vativeness disclose originality rig thought or
pro-
associated wi research o pro-
agency shall award the contract based on prietary data of the associated with
the proposals as received (and as clarified, if "(2) The d requirements of the prop subsectecti.
necessary, In discussions conducted for the (a)(1 "(2)
purpose of minor clarification). (A) do not apply-
"(4) The executive agency shall, except as described any procurement under conditions
otherwise provided in subsection (b), award tion descri in clause (2), (3), (4), or (5) of set-
sec-
a contract with reasonable promptness to 303(e); and
the responsible offeror whose proposal is which h "i ih the case hfr any utive afor
most advantageous to the United States, the head procurement executive makes es agency deter-
considering price and the other factors in- m rying a out such writing, with the makes a eer-
cluded in the solicitation under section the Administrator o a Arm in writing, who tll Business d-
311(b)(1). The executive agency shall award ministration, that it Small Business or
the contract by transmitting written notice spublish is not appropriate efa sor
of the award to such offeror and shall reasonable to publa notice before issuing
promptly notify all other offerors of the re- a solicitation.
jection of their proposals. "RECORD REQUIREMENTS
"(e) If the head of an executive agency "SEC. 314. (a) Each executive agency shall
considers that any bid or proposal evidences establish and maintain for a period of five
a violation of the antitrust laws, he shall years a record, by fiscal year, of the pro-
refer the bid or proposal to the Attorney curements, other than small purchases, in
General for appropriate action. such fiscal year in which-
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S 16012 CONGRESSIONAL RECORD - SENATE November 11, 1983
or maintain competition and would likely would result in duplication of necessary "(2) All sealed bids or competitive propos.
result in reduced overall costs for such pro- preparation which would unduly delay the als received in response to a solicitation may
curement, or for any anticipated procure- procurement of the property, the property be rejected if the head of an agency deter-
ment, of property or services, (2) be in the may be deemed to be. available only from mines that such action is in the public inter-
interest of industrial mobilization in case of the initial source and may be procured est.
a national emergency, or (3) be in the inter- through noncompetitive procedures.
est of national defense in establishing or "(g) The head of an "(3) Sealed bids shall to opened so i ita-d in maintaining an essential research capability award a contract using noncompetitive may not ti on. The time and place sgenc the evaluate
to be provided by an educational or other cedures unless- the pro- then. Ththo t of an s agency shah the bid-
nonprofit institution or a research and de- "(1) the use of such procedures has been bids without discussions with the a
velopment center funded by the United justified in writing; and ders
ra and shall, t, except c on, award in prn-
States.
States. "(2) a notice has been published with graph it r sots subsection, es to a con-
Procurement regulations shall include spect to such contract pursuant to tract with bidder whose romptness to the re-
special simplified procedures and forms for 2305(c) of this title and all bids orprsection sponsible whobid conforms to the
small purchases to facilitate making small received in response to such notice proposals
United Sn and olely s most considering advoh to the
purchases efficiently and economically. been considered by such head of an agency. and h States, factors derinthe oliic-
"(d) For other than small purchases, the y and the other fatorincluded) of this see-
head of an "(h) For the purposes of the following tation under subsection (aN2)(A) of this sec-
head when using competitive laws, purchases or contracts made under tion. The award of a contract shall be made
procedures- this chapter using other than sealed bid
"(1) shall solicit sealed bids when- procedures shall be treated as if they were to the successfu written notice of the award
"(A) time permits the solicitation, submis- y to the successful bidder. notice
and evaluation of seated bids; made with sealed bid procedures; "(4)(A) The head of an agency shall evalu-
sion, the awill be made on tbasis "(1) The Act entitled 'An Act to provide ate competitive proposals and may award a
of "(B) the award a other ll be a ade on the h factors; conditions for the purchase of supplies and contract-
"(price it is not the making of contracts by the United
necessary to conduct discus- States, and for other purposes', approved of fer after discussions conducted the the
sions with the responding sources about June 30, 1936 (commonly referred to as the osalsrsad any r time the award of the on-
pro-
their bids; and 'Walsh-Healey Act') (41 U.S.C. 35-45). Fowls and prior to the award of the con-
(D) there is reasonable expectation of re- "(2) The Act entitled 'An Act relating to tract; or
ceiving more than one?sealed bid; the rate of wages for laborers and mechan- ?(i[) without discussions with the offerors
"(2) shall request competitive proposals beyond discussions conducted for the
from responding sources when sealed bids Usemployed States on and the public buildings lu the pur-
ar not required under clause (1) of this sub- United District of Columbia pose of minor clarification where it can be
section. by contractors and subcontractors, and for clearly demonstrated from the existence of
"tee The head of an other purposes', approved March 3, 1931 effective competition or accurate prior cost
agency may use non- competitive procedures only when- (commonly referred 276d to as the 'Davis-Bacon experience with the product or service that
"(1) the property or services needed by Act') (40 U.S.C. 276a-276a-5). acceptance of initial al proposal al without
the Government are available from only one "? 2305. Solicitation, evaluation and award prose- aiseusricns would ld result in fair and reason-
source and no other type of property or dures; notice requirements able prices.
services will satisfy the needs of the agency; " (a) UXA) Each solicitation under this under subparagraph In the case of (gent) award of of a this ds paac-
"(2) the agency's need for the property or title shall include specifications which- graph, ,
services is of such unusual and compelling "(i) consistent with the needs of the before she head r an agency horl oral discus-
urgency conduct,
usurgency that the Government would be seri- agency, permit effective competition; and shuns before such
with award, sor oral isc-
ously injured by the delay associated with "(ii) include restrictive provisions or condi- submit all responsible ithnofferors who
using competitive procedures; tions only to the extent necessary to satisfy range, ng, price proposals and d other evaluation avaluatioon facto o s
"(3) it is necessary to award the contract such needs or as authorized by law. rs
to a particular source or sources in order to "(B) For the considered.
(A) maintain a facilit paragraph, purposes, of specifica- "(C) In the case of award of a contract
Y. producer, manufac- (A) of this paragraph, the type e of of specifics- under er subparagraph (genii) of this turer, or other supplier available for fur- tion Included in any solicitation shall par d
nishing property or services in case of a na- depend on the nature of the needs of the the contract head based of the agency
proposals shall award
tional emergency, (B) achieve industrial ma- agency and the market available to satisfy the co on cyreceived
bilization in the case of such an emergency, such needs. Subject to such needs~ specificscond conducted if necessary, minor claios
or (C) establish or maintain an essential re- tions may be stated in terms - anonted for the purpose of minor clarifi-
search capability to be provided by an edu- "(i) function so that a variety of products tal(on).
cational of other nonprofit institution or a or services may qualify; as "(D) Thd head a ra h (2) o shallf except
of agency research and development, center funded by "(ii) performance, including specifications provide in paragraph (w with thia onabl-
the United States; of the range of acceptable characteristics or then, award a contract with reasonable
"(4) the terms of any international agree- of the minimum acceptable standards; or promptness to the responsible oofthor whose
ment or treaty between the United States "(iii) design requirements. proposal l most advantageous a the United
Government and a foreign government or "(2) Each solicitation for sealed bids or States, included d in the considering price solicitation and under
international organization, or the directions competitive proposals other than for small factors subsection inclu shis udee
of any foreign government reimbursing the purchases shall at a minimum include, in had oft agency shall of this the oo The
agency for the cost of the procurement of addition to the specifications described in head
transmitting written notice award the contract
the property or services for such govern- paragraph (1) of this subsection- to such uch offeror and shall promptl the award
ment, have the effect of requiring the use of "(A) a statement of- of offerors the rejection of near all
y noncompetitive procedures; "([) all significant factors, including price, other offerors of the rejection of their pro
1(5) a statute authorizes or requires that which the executive agency reasonably ex- Posals.
the procurement be made through another pects to consider in evaluating sealed bids or "(5) Iy the he of an agency considers
agency or from a specified source; or the competitive proposals; and that any bid or a d proposal evidences ra efer agency's need is for a brand-name commer- "(ii) the relative importance assigned to lion of the antitrust laws, he shall refer the
cial item for authorized resale; or each of those factors; bid or proposal to the Attorney General for
"(6) the disclosure of the agency's needs "(B) in the case of sealed bids- appropriate action.
to more than one source would compromise "(i) a statement, that sealed bids will be "(c)(1)(A) Except as provided in para-
the national security. evaluated without discussions with the bid- graph (3) of this subsection-
"(f) For the purposes of applying section ders; and "(i) the head of an agency intending to so
2304(e)(1) hereof: (A) property or services "(ti) the time and place for the opening of licit bids or, proposals for a contract for
shall be considered to be available from a the sealed bids; and
source if such source has the property or services a price expected to
capability to "(C) In the case of competitive proposals- exceed $10,000 shall furnish for publication
produce the property or deliver the service "(i) a statement that the proposals are in- by the Secretary of Commerce a notice de-
in accordance with the Government's speci- tended to be evaluated with, and awards scribed in paragraph (2) of this subsection;
fications and delivery schedule, and (B) in made after, discussions with the offerors and
the case of the procurement of technical or but might be evaluated and awarded with. "(ii) the head of an agency awarding a
special property which has required a sub- out discussions with the offerors; and contract for
stantial initial investment or an extended "(ii) the time and place for submission of exceeding property shall l or servi at
furnish for r a price
pa"ad or preparation for manufacture, and proposals. t ion hen b bCommerce publics where it is liked that by the Secretary of Comma notice
Y production by a "(b)( 1) The head of an agency shall evalu- announcing such award If there is likely to
source other than the original source would ate sealed bids and competitive proposals be any subcontract under such contract.
result in additional cost to the Government based solely on the factors specified in the "(B) The Secretary of Commerce shall
by reason of duplication of investment or solicitation.
? publish promptly in the Commerce Business
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November 11, 1980 CONGRESSIONAL RECORD - SENATE
Daily each notice required by subparagraph
(A) of this paragraph.
"(C) Whenever a head of an agency is re-
quired by subparagraph (A)(0 of this para-
graph to furnish a notice of a solicitation to
the Secretary of Commerce, such head of an
agency may not-
"(I) issue such solicitation earlier than fif-
teen days after the date on which such
notice is published by the Secretary of Com-
me ce; or
"(ii) establish a deadline for the submis-
sion of all bids or proposals in response to
such solicitation that is earlier than thirty
days after the date on which such solicita-
tion is issued.
"(2) Each notice required by paragraph
(1)(AXi) of this subsection shall include-
"(A) an accurate description of the prop-
erty or services to be contracted for, which
description is not unnecessarily restrictive
of competition;
"(B) the name and address of the officer
or employee of the agency who may be con-
tacted for the purpose of obtaining a copy
of the solicitation;
"(C) a statement that any person may
submit a bid or proposal which shall be con-
sidered by the agency; and
"(D) in the case of a procurement using
noncompetitive procedures, a statement of
the reason justifying the use of noncompeti-
tive procedures and the identity of the in-
tended source.
"(3(A) A notice is not required under para-
graph (1XA) of this subsection if-
"(I) the notice would disclose the agency's
needs and the disclosure of such needs
would compromise the national security; or
"(ii) the proposed noncompetitive procure-
ment would result from acceptance of an
unsolicited research proposal that demon-
strates a unique or innovative research con-
cept and the publication of any notice of
such unsolicited research proposal would
disclose the originality of thought or inno-
vativeness of the proposed research or pro-
prietary data associated with the proposal.
"(B) The requirements of paragraph
(1XAXi) of this subsection do not apply-
"(I) to any procurement under conditions
described in clause (2), (3), (4), or (5) of sec-
tion 2304(e) of this title; and
"(11) in the case of any procurement for
which the head of the agency carrying out
such procurement makes a determination in
writing, with the concurrence of the Admin-
istrator of the Small Business Administra-
tion, that it is not appropriate or reasonable
to publish a notice before issuing a solicita-
tion."; and
(4) by adding at the end thereof the fol-
lowing new section:
"6 2316. Record requirements
"(a) Each head of an agency shall estab-
lish and maintain for a period of five years a
record, by fiscal year, of the procurements,
other than small purchases, in such fiscal
year in which-
"(1) noncompetitive procedures were used;
and
"(2) only one bid or proposal was received
after competitive procedures were used.
"(b) The record established under subsec-
tion (a) of this section shall include, with re-
spect to, each procurement-
"(1) information identifying the source to
whom the contract was awarded;
"(2) the property or services obtained by
the Government under the procurement;
"(3) the total cost of the procurement;
"(4) the reason under section 2304(e) of
this title for the use of noncompetitive pro-
cedures; and
"(5) the position of the officers or employ-
ees of the agency who required and ap-
proved the use of noncompetitive proce-
dures in such procurement.
"(c) The information included in the
record established and maintained under
subsection (a) shall be transmitted to the
Federal Procurement Data Center referred
to in section 6(d)(5) of the Office of Federal
Procurement Policy Act (41 U.S.C.
405(d)(5)).".
(b) The table of sections at the beginning
of such chapter is amended-
(1) by striking out the items relating to
sections 2304 and 2305 and inserting in lieu
thereof the following:
"2304. Competition requirements.
"2305. Solicitation, evaluation, and award
procedures; notice require-
ments.";
and
(2) by adding at the end thereof the fol-
lowing new item:
"2316. Record requirements.".
CONFORMING AMENDMENTS
SEC. 202. Chapter 137 of title 10, United
States Code, is amended-
(1) in section 2306-
(A) by striking out "may, in negotiating
contracts under section 2304," in the second
sentence of subsection (a) and inserting in
lieu thereof "may in awarding contracts
after using other than sealed bid proce-
dures";
(B) by striking out "negotiated under sec-
tion 2304" in the first sentence of subsection
(b) and inserting in lieu thereof "awarded
after using other than sealed bid proce-
dures";
(C) by striking out "section 2304 of this
title," in subsection (c) and inserting in lieu
thereof "this chapter";
(D) in subsection (fXl)-
(i) by striking out clause (A) and inserting
in lieu thereof the following:
"(1) prior to the award of any prime con-
tract under this title after using other than
sealed bid procedures where the contract
price is expected to exceed $100,000;";
(ii) by striking out "negotiated" each
place it appears in the second paragraph;
(Iii) by striking out "negotiation," in the
third paragraph and inserting in lieu there-
of "proposal for the contract, the discus-
sions conducted on the proposal under this
title,"; and
(iv) by striking out "$500,000" each place
it appears in clauses (B), (C), and (D) and
inserting in lieu thereof "$100,000; and
(E) by adding at the end thereof the fol-
lowing new subsection:
"(i) Except in a ease in which the Secre-
tary of Defense determines that military re-
quirements necessitate the specification of
container sizes, no contract for the carriage
of Government property in other than Gov-
ernment-owned cargo containers shall re-
quire carriage of such property in cargo con-
tainers of any stated length, height, or
width.";
(2) by striking out subsection (b) of sec-
tion 2310 and inserting in lieu thereof the
following:
"(b) Each determination or decision under
section 2306(c), section 2306(g)(1), section
2307(c), or section 2313(c) of this title shall
be based on a written finding by the person
making the determination or decision,
which finding shall set out facts and circum-
stances that (1) clearly indicate why the
type of contract selected under section
2306(c) is likely to be less costly than any
other type or that it is impracticable to
obtain property or services of the kind or
quality required except under such a con-
tract, (2) support the findings required by
section 2306(g)(1), (3) clearly indicate why
advance payments under section 2307(c)
would be in the public interest, or (4) clearly
S16013
2313(b) to a contract or subcontract with a
foreign contractor or foreign subcontractor
would not be in the public interest. Such a
finding is final and shall be kept available in
the agency for at least six years after the
date of the determination or decision. A
copy of the finding shall be submitted to
the General Accounting Office with each
contract to which it applies.";
(3) by striking out section 2311 and insert-
ing in lieu thereof the following: "The head
of an agency may delegate, subject to his di-
rection, to any other officer or official of
that agency, any power under this chap-
ter."; and
(4) by striking out "negotiated" in the
second sentence of section 2313(b) and in-
serting in lieu thereof "awarded after using
other than sealed bid procedures".
TITLE III-ADVOCATE FOR COMPETI-
TION; ANNUAL REPORT ON COMPE-
TITION
DEFINITION
Sac. 301. For the purposes of this title, the
term "executive agency" has the same
meaning as provided in sectioln 4(a) of the
Office of Federal Procurement Policy Act
(41 U.S.C. 403(a)).
ADVOCATE FOR COMPETITION
SEC. 302. (aX1) There is established in
each executive agency an advocate for com-
petition.
(2) Each head of an executive agency
shall-
(A) designate for each executive agency
one officer or employee serving in a position
authorized for such executive agency on the
date of enactment of this Act to serve as the
advocate for competition;
(B) relieve such officer or employee of all
duties and responsibilities that are incon-
sistent with the duties and responsibilities
of the advocate for competition; and
(C) provide such officer or employee with
such staff or assistance as may be necessary
to carry out the duties and responsibilities
of the advocate for competition.
(b)(1) The advocate for competition shall
promote competition in the procurement of
property and services.
(2) The advocate for compeition in an ex-
ecutive agency shall-
(A) review the purchasing and contracting
activities of the executive agency;
(B) Identify and report to the head of the
executive agency
(i) opportunities to achieve competition
on the basis of price and other significant
factors in the purchases and contracts of
the executive agency;
(ii) solicitations and proposed solicitations
which include unnecessarily detailed specifi-
cations or unnecessarily restrictive state-
ments of need which may reduce competi-
tion in the procurement activities of the ex-
ecutive agency; and
(Ili) any other condition or action which
has the effect of unnecessarily restricting
competition in the procurement actions of
the executive agency; and
(C) prepare and, transmit to the head of
the executive agency an annual report de-
scribing his activities under this section.
ANNUAL REPORT
SEC. 303. (a) Not later than September 30
of each of 1983, 1984, 1985, and 1986, each
head of an executive agency shall transmit
to the Committee on Governmental Affairs
of the Senate and the Committee on Gov-
ernment Operations of the House of Repre-
sentatives and annual report including the
information specified in subsection (b).
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CONGRESSIONAL RECORD - SENATE November 11, 198?
(1) a specific description of all actions that
the head.of the executive agency intends to
take during the next fiscal year to-
(A) increase competition for contracts
with the executive agency on the basis of
price and other significant factors; and
(B) reduce the numbers and dollar value
of contracts entered into by the executive
agency after soliciting bids or proposals
from, or evaluating bids or proposals with
discussions with, only one source; and
(2) a summary of the activities and accom-
plishments of the advocates for competition
of the executive agency during the fiscal
year in which the report is transmitted.
TITLE I V -APPLICABILITY
Ssc. 401. The amendments made by this
Act shall apply with respect to any solicita-
tions for bids or proposals issued on or after
the date two hundred and seventy days
after the date of the enactment of this Act.
Mr. BAKER. Mr. President, I move
to reconsider the vote by which the
bill was passed.
Mr. BYRD. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
FEDERAL PHYSICIANS COMPA-
RABILITY ALLOWANCE ACT
AMENDMENTS OF 1983-CON-
FERENCE REPORT
Mr. BAKER. Mr. President, I submit
a report of the committee of confer-
ence on H.R. 2077 and ask for its im-
mediate consideration.
The ACTING PRESIDENT pro tem-
pore. The report will be stated.
The legislative clerk read as follows:
The committee of conference on the disa-
greeing votes of the two Houses on the
amendment of the Senate to the bill (H.R.
2077) to amend title 5, United States Code,
to extend the Federal Physicians Compara-
bility Act of 1978, and for other purposes,
having met, after full and free conference,
have agreed to recommend and do recom-
mend to their respective Houses this report,
signed by all of the conferees.
the ACTING PRESIDENT pro tem-
pore. Without objection, the Senate
will proceed to the consideration of
the conference report.
(The conference report will be print-
ed in the House proceedings of the
RECORD.)
The ACTING PRESIDENT pro tem-
pore. Without objection, the confer-
ence report is agreed to.
Mr. BAKER. Mr. President, I move
o reconsider the vote by which the
conference report was agreed to.
Mr. BYRD. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
a~ greed to.
LEASES AND CONTRACTS AF-
FECTING, LAND WITHIN THE
SALT RIVER PIMA-MARICOPA
INDIAN RESERVATION
Mr. BAKER. Mr. President, I ask
unanimous consent that the Senate
now turn to the consideration of H.R.
2910, regarding the leases and con-
tracts affecting land within the Salt
River Pima-Maricopa Indian Reserva-
tion.
The ACTING PRESIDENT pro tem-
pore. The bill will be stated by title.
The legislative clerk read as follows:
A bill (H.R. 2910) to amend the act of No-
vember 2, 1966, regarding leases and con-
tracts affecting land within the Salt River
Pima-Maricopa Indian Reservation.
The ACTING PRESIDENT pro tem-
pore. Is there objection to the immedi-
ate consideration of the bill?
There being no objection, the Senate
proceeded to consider the bill.
? Mr. GOLDWATER. Mr. President,
we have before us, H.R. 2910, a bill
which amends existing law to allow
the Salt River Pima-Maricopa Indian
community of Arizona and allotted
Indian landowners to enter into lease
agreements with binding arbitration
clauses that could be enforced in the
Federal district court.
This legislation is identical to a pro-
posal I introduced this session, S. 1686,
except for two technical amendments
which the House Interior Committee
ade. The committee accepted an In-
two technical changes in the language
of the bill and the second amendment,
offered by the Indian community, was
of a clarifying nature.
This bill would not affect the trust
responsibility of the United States or
adversely affect the trust status of
lands within the community's reserva-
tion or other property held in trust for
the community or its members by the
United States. The Secretary of the
Interior still has the authority to ap-
prove or disapprove leases or contracts
affecting trust lands or resources as
provided under existing law. In order
to promote industry and economic de-
velopment on the reservation, the Salt
River Pima-Maricopa Indian commu-
nity felt that binding arbitration of
disputes would give potential develop-
ers and those who finance them the
security of enforcement for a lease or
contractual arrangement that one
might have with a non-Indian entity.
The Interior Department does sup-
port this legislation and the Congres-
sional Budget Office has indicated in
its report that enactment of this bill
will result in no cost to the Federal,
State, or local governments.
Mr. President. this is a noncontro-
versial proposal, concerning only the
Salt River Pima-Maricopa Indian com-
munity which has requested it, and I
ask my colleagues to join me in sup-
porting H.R. 2910.?
The ACTING PRESIDENT pro tem-
pore. The bill is before the Senate and
open to amendment. If there be no
amendment to be offered, the question
is on the third reading and passage of
the bill.
The bill (H.R. 2910) was ordered to a
third reading, was read the third time,
and passed.
Mr. BAKER. Mr. President, I move
to reconsider the vote by which the
bill was passed.
Mr. BYRD. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
RESTORATION OF FEDERAL
RECOGNITION TO THE CON-
FEDERATED TRIBES OF THE
GRAND RONDE COMMUNITY
OF OREGON
Mr. BAKER. Mr. President, I would
like now to go to H.R. 3885, if the mi-
nority leader is agreeable.
Mr. BYRD, Mr. President, that
matter has been cleared on this side.
Mr. BAKER. Mr. President, I ask
unanimous consent that the Senate
now turn to the consideration of H.R.
3885.
The ACTING PRESIDENT pro tem-
pore. The bill will be stated by title.
The legislative clerk read as follows:
A bill (H.R. 3885) to provide for the resto-
ration of Federal recognition of the Confed-
erated Tribes of the Grand Ronde commu-
nity of Oregon, and for other purposes.
The ACTING PRESIDENT pro tem-
pore. Is there objection to the immedi-
ate consideration of the bill?
There being no objection, the Senate
proceeded to consider the bill.
Mr. HATFIELD. Mr. President, let
me express my gratitude to the distin-
guished majority leader for his bring-
ing H.R. 3885 to the floor in an expedi-
tious fashion. In light of the fact that
the House only passed this bill on No-
vember 7, the majority leader's
prompt attention to my concerns and
the concerns of the Grand Ronde com-
munity is all the more meaningful.
The record should also reflect my sin-
cere thanks to Senator AxnREws and
Senator ME1.cHER for their allowing
this bill to be held at the desk, thereby
permitting H.R. 3885 to be on the
President's desk before the end of this
year.
For the past several years, the Con-
federated Tribes of the Grand Ronde
community of Oregon have busied
themselves compiling the requisite
documentation to prove the wrongfull-
ness of their 1954 termination by the
Government. They have come to my
office for the past several years and I
have asked them to come back after
they have established a more complete
record justifying a restoration of their
Federal rights. Indian restoration
cases are not new projects for my
office. In the past several Congresses I
have sponsored legislation which has
restored federally recognized tribal
status to the Siletz Indians and to the
Cow Creed Indians. The experiences
gained from these bills have given me
a keen sense of when a tribe has made
a credible showing justifying Federal
recognition and when it has not. Mr.
President, in H.R. 3885, the Grand
Rondes have made such a credible
showing. They have done their home-
work and have presented a case which
leaves no doubt as to their worthiness
for a restoration of their tribal rights.
Mr. President, the Grand Rondes
have waited 29 years for their day in
court, and I am pleased to be in solved
in the process of granting them their
long-awaited measure of justice.
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