109th CONGRESS
1st Session
H. R. 2067
To provide for an improved acquisition system.
IN THE HOUSE OF REPRESENTATIVES
May 4, 2005
Mr. TOM DAVIS of Virginia (for himself and Mr. HUNTER) introduced the following
bill; which was referred to the Committee on Government Reform, and in addition
to the Committee on Armed Services, for a period to be subsequently determined
by the Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
A BILL
To provide for an improved acquisition system.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title- This Act may be cited as the `Acquisition System Improvement
Act'.
(b) Table of Contents- The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
TITLE I--ACQUISITION IMPROVEMENTS
Sec. 101. Government-industry exchange program.
Sec. 102. Share-in-savings amendments.
Sec. 103. Agency acquisition protests.
Sec. 104. Use of commercially available online services for Federal procurement
of commercial items.
Sec. 105. Extension of deadline for report from statutory and regulatory
advisory panel.
Sec. 106. Adjustment of cost accounting standard threshold.
Sec. 107. Use of Federal supply schedules by State and local governments
for goods and services for defense against or recovery from terrorism or
nuclear, biological, chemical, or radiological attack.
Sec. 108. Uniform payment standards for contract financing.
TITLE II--CONTRACT DISPUTE ENHANCEMENT
Subtitle A--General Provisions
Subtitle B--Establishment of Civilian and Defense Boards of Contract Appeals
Sec. 224. Rulemaking authority.
Sec. 225. Authorization of appropriations.
Subtitle C--Functions of Defense and Civilian Boards of Contract Appeals
Sec. 231. Contract disputes.
Sec. 232. Enhanced access for small business.
Sec. 233. Applicability to certain contracts.
Subtitle D--Transfers and Transition, Savings, and Conforming Provisions
Sec. 241. Transfer and allocation of appropriations and personnel.
Sec. 242. Terminations and savings provisions.
Sec. 243. Contract disputes authority of Boards.
Sec. 244. References to agency Boards of contract appeals.
Sec. 245. Conforming amendments.
Subtitle E--Effective Date; Regulations and Appointment of Chairmen
Sec. 251. Effective date.
Sec. 253. Appointment of Chairmen of Defense Board and Civilian Board.
TITLE I--ACQUISITION IMPROVEMENTS
SEC. 101. GOVERNMENT-INDUSTRY EXCHANGE PROGRAM.
(a) In General- Subpart B of part III of title 5, United States Code, is amended
by adding at the end the following:
`CHAPTER 38--ACQUISITION PROFESSIONAL EXCHANGE PROGRAM
`3802. General provisions.
`3803. Assignment of employees to private sector organizations.
`3804. Assignment of employees from private sector organizations.
`3805. Reporting requirement.
`Sec. 3801. Definitions
`For purposes of this chapter--
`(A) subject to subparagraph (B), means an executive agency; and
`(i) the General Accounting Office;
`(ii) an Office of Inspector General of an establishment or a designated
Federal entity established under the Inspector General Act of 1978;
and
`(iii) the Defense Contract Audit Agency referred to in section 2313(b)
of title 10; and
`(2) the term `detail' means--
`(A) the assignment or loan of an employee of an agency to a private sector
organization without a change of position from the agency that employs
the individual, or
`(B) the assignment or loan of an employee of a private sector organization
to an agency without a change of position from the private sector organization
that employs the individual,
whichever is appropriate in the context in which such term is used.
`Sec. 3802. General provisions
`(a) Assignment Authority- On request from or with the agreement of a private
sector organization, and with the consent of the employee concerned, the head
of an agency may arrange for the assignment of an employee of the agency to
a private sector organization or an employee of a private sector organization
to the agency. An eligible employee is an individual who--
`(1) works in the field of Federal acquisition or acquisition management;
`(2) is considered an exceptional performer by the individual's current
employer; and
`(3) is expected to assume increased acquisition management responsibilities
in the future.
An employee of an agency shall be eligible to participate in this program
only if the employee is employed at the GS-11 level or above (or equivalent)
and is serving under a career or career-conditional appointment or an appointment
of equivalent tenure in the excepted service.
`(b) Agreements- Each agency that exercises its authority under this chapter
shall provide for a written agreement between the agency and the employee
concerned regarding the terms and conditions of the employee's assignment.
In the case of an employee of the agency, the agreement shall--
`(1) require the employee to serve in the civil service, upon completion
of the assignment, for a period equal to the length of the assignment; and
`(2) provide that, in the event the employee fails to carry out the agreement
(except for good and sufficient reason, as determined by the head of the
agency from which assigned) the employee shall be liable to the United States
for payment of all expenses of the assignment.
An amount under paragraph (2) shall be treated as a debt due the United States.
`(c) Termination- Assignments may be terminated by the agency or private sector
organization concerned for any reason at any time.
`(d) Duration- Assignments under this chapter shall be for a period of between
6 months and 1 year, and may be extended in 3-month increments for a total
of not more than 1 additional year, except that no assignment under this chapter
may commence after the end of the 5-year period beginning on the date of the
enactment of this chapter.
`(e) Assistance- The Administrator for Federal Procurement Policy, by agreement
with the Office of Personnel Management, may assist in the administration
of this chapter, including by maintaining lists of potential candidates for
assignment under this chapter, establishing mentoring relationships for the
benefit of individuals who are given assignments under this chapter, and publicizing
the program.
`(f) Considerations- In exercising any authority under this chapter, an agency
shall take into consideration--
`(1) the need to ensure that small business concerns are appropriately represented
with respect to the assignments described in sections 3803 and 3804, respectively;
and
`(2) how assignments described in section 3803 might best be used to help
meet the needs of the agency for the training of employees in acquisition
management.
`Sec. 3803. Assignment of employees to private sector organizations
`(a) In General- An employee of an agency assigned to a private sector organization
under this chapter is deemed, during the period of the assignment, to be on
detail to a regular work assignment in his agency.
`(b) Coordination With Chapter 81- Notwithstanding any other provision of
law, an employee of an agency assigned to a private sector organization under
this chapter is entitled to retain coverage, rights, and benefits under subchapter
I of chapter 81, and employment during the assignment is deemed employment
by the United States, except that, if the employee or the employee's dependents
receive from the private sector organization any payment under an insurance
policy for which the premium is wholly paid by the private sector organization,
or other benefit of any kind on account of the same injury or death, then,
the amount of such payment or benefit shall be credited against any compensation
otherwise payable under subchapter I of chapter 81.
`(c) Reimbursements- The assignment of an employee to a private sector organization
under this chapter may be made with or without reimbursement by the private
sector organization for the travel and transportation expenses to or from
the place of assignment, subject to the same terms and conditions as apply
with respect to an employee of a Federal agency or a State or local government
under section 3375, and for the pay, or a part thereof, of the employee during
assignment. Any reimbursements shall be credited to the appropriation of the
agency used for paying the travel and transportation expenses or pay.
`(d) Tort Liability; Supervision- The Federal Tort Claims Act and any other
Federal tort liability statute apply to an employee of an agency assigned
to a private sector organization under this chapter. The supervision of the
duties of an employee of an agency so assigned to a private sector organization
may be governed by an agreement between the agency and the organization.
`(e) Small Business Concerns-
`(1) IN GENERAL- The head of each agency shall take such actions as may
be necessary to ensure that, of the assignments made under this chapter
from such agency to private sector organizations in each year, at least
20 percent are to small business concerns.
`(2) DEFINITIONS- For purposes of this subsection--
`(A) the term `small business concern' means a business concern that satisfies
the definitions and standards specified by the Administrator of the Small
Business Administration under section 3(a)(2) of the Small Business Act
(as from time to time amended by the Administrator);
`(B) the term `year' refers to the 12-month period beginning on the date
of the enactment of this chapter, and each succeeding 12-month period
in which any assignments under this chapter may be made; and
`(C) the assignments `made' in a year are those commencing in such year.
`(3) REPORTING REQUIREMENT- An agency which fails to comply with paragraph
(1) in a year shall, within 90 days after the end of such year, submit a
report to the Committees on Government Reform and Small Business of the
House of Representatives and the Committees on Homeland Security and Governmental
Affairs and Small Business of the Senate. The report shall include--
`(A) the total number of assignments made under this chapter from such
agency to private sector organizations in the year;
`(B) of that total number, the number (and percentage) made to small business
concerns; and
`(C) the reasons for the agency's noncompliance with paragraph (1).
`(4) EXCLUSION- This subsection shall not apply to an agency in any year
in which it makes fewer than 5 assignments under this chapter to private
sector organizations.
`Sec. 3804. Assignment of employees from private sector organizations
`(a) In General- An employee of a private sector organization assigned to
an agency under this chapter is deemed, during the period of the assignment,
to be on detail to such agency.
`(b) Terms and Conditions- An employee of a private sector organization assigned
to an agency under this chapter--
`(1) may continue to receive pay and benefits from the private sector organization
from which he is assigned;
`(2) is deemed, notwithstanding subsection (a), to be an employee of the
agency for the purposes of--
`(B) sections 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905,
and 1913 of title 18;
`(C) sections 1343, 1344, and 1349(b) of title 31;
`(D) the Federal Tort Claims Act and any other Federal tort liability
statute;
`(E) the Ethics in Government Act of 1978;
`(F) section 1043 of the Internal Revenue Code of 1986; and
`(G) section 27 of the Office of Federal Procurement Policy Act;
`(3) may not have access to any trade secrets or to any other nonpublic
information which is of commercial value to the private sector organization
from which he is assigned; and
`(4) is subject to such regulations as the President may prescribe.
The supervision of an employee of a private sector organization assigned to
an agency under this chapter may be governed by agreement between the agency
and the private sector organization concerned. Such an assignment may be made
with or without reimbursement by the agency for the pay, or a part thereof,
of the employee during the period of assignment, or for any contribution of
the private sector organization to employee benefit systems.
`(c) Coordination With Chapter 81- An employee of a private sector organization
assigned to an agency under this chapter who suffers disability or dies as
a result of personal injury sustained while performing duties during the assignment
shall be treated, for the purpose of subchapter I of chapter 81, as an employee
as defined by section 8101 who had sustained the injury in the performance
of duty, except that, if the employee or the employee's dependents receive
from the private sector organization any payment under an insurance policy
for which the premium is wholly paid by the private sector organization, or
other benefit of any kind on account of the same injury or death, then, the
amount of such payment or benefit shall be credited against any compensation
otherwise payable under subchapter I of chapter 81.
`(d) Prohibition Against Charging Certain Costs to the Federal Government-
A private sector organization may not charge the Federal Government, as direct
or indirect costs under a Federal contract, the costs of pay or benefits paid
by the organization to an employee assigned to an agency under this chapter
for the period of the assignment.
`Sec. 3805. Reporting requirement
`(a) In General- The Office of Personnel Management shall, not later than
April 30 and October 31 of each year, prepare and submit to the Committee
on Government Reform of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate a semiannual report
summarizing the operation of this chapter during the immediately preceding
6-month period ending on March 31 and September 30, respectively.
`(b) Content- Each report shall include, with respect to the 6-month period
to which such report relates--
`(1) the total number of individuals assigned to, and the total number of
individuals assigned from, each agency during such period;
`(2) a brief description of each assignment included under paragraph (1),
including--
`(A) the name of the assigned individual, as well as the private sector
organization and the agency (including the specific bureau or other agency
component) to or from which such individual was assigned;
`(B) the respective positions to and from which the individual was assigned,
including the duties and responsibilities and the pay grade or level associated
with each; and
`(C) the duration and objectives of the individual's assignment; and
`(3) such other information as the Office considers appropriate.
`(c) Publication- A copy of each report submitted under subsection (a)--
`(1) shall be published in the Federal Register; and
`(2) shall be made publicly available on the Internet.
`(d) Agency Cooperation- On request of the Office, agencies shall furnish
such information and reports as the Office may require in order to carry out
this section.
`Sec. 3806. Regulations
`The Director of the Office of Personnel Management shall prescribe regulations
for the administration of this chapter.'.
(b) Report- Not later than 4 years after the date of the enactment of this
Act, the General Accounting Office shall prepare and submit to the Committee
on Government Reform of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate a report on the operation
of chapter 38 of title 5, United States Code (as added by this section). Such
report shall include--
(1) an evaluation of the effectiveness of the program established by such
chapter; and
(2) a recommendation as to whether such program should be continued (with
or without modification) or allowed to lapse.
(c) Clerical Amendment- The table of chapters at the beginning of part III
of title 5, United States Code, is amended by inserting after the item relating
to chapter 37 the following:
--3801'.
(d) Coordination With Acquisition Workforce Provisions of Office of Federal
Procurement Policy Act- Section 37 of the Office of Federal Procurement Policy
Act (41 U.S.C. 433) is amended by adding at the end the following new subsection:
`(i) Authority to Detail Employees to Non-Federal Employers- (1) In carrying
out the provisions of this section, the Administrator, by agreement with the
Director of the Office of Personnel Management, may provide for a program
under which a Federal employee may be detailed to a non-Federal employer.
The Administrator, by agreement with the Director of the Office of Personnel
Management, shall prescribe regulations for such program, including the conditions
for service and duties as the Administrator considers necessary.
`(2) An assignment described in section 3803 of title 5, United States Code,
may not be made unless a program under paragraph (1) is established, and the
assignment is made in accordance with the requirements of such program.'.
(1) ONE-YEAR RESTRICTION ON CERTAIN COMMUNICATIONS- Section 207(c)(2)(A)(v)
of title 18, United States Code, is amended by inserting `or 38' after `chapter
37'.
(2) DISCLOSURE OF CONFIDENTIAL INFORMATION- Section 1905 of title 18, United
States Code, is amended by inserting `or 38' after `chapter 37'.
(3) CONTRACT ADVICE- Section 207(l) of title 18, United States Code, is
amended--
(A) in the subsection heading, by striking `Details- ' and inserting `Detailees-
'; and
(B) by inserting `or 38' after `chapter 37'.
(4) RESTRICTION ON DISCLOSURE OF PROCUREMENT INFORMATION- Section 27 of
the Office of Federal Procurement Policy Act (41 U.S.C. 423) is amended
in the last sentence of subsection (a)(1) by inserting `or 38' after `chapter
37'.
(f) Technical and Conforming Amendments-
(1) AMENDMENTS TO TITLE 5, UNITED STATES CODE- Title 5, United States Code,
is amended--
(A) in section 3111(d), by inserting `or 38' after `chapter 37'; and
(B) in section 7353(b)(4), by inserting `or 38' after `chapter 37'.
(2) AMENDMENT TO TITLE 18, UNITED STATES CODE- Section 209(g) of title 18,
United States Code, is amended--
(A) in paragraph (1), by inserting `or 38' after `chapter 37'; and
(B) by amending paragraph (2) to read as follows:
`(2) For purposes of this subsection, the term `agency'--
`(A) with respect to assignments under chapter 37 of title 5, means an agency
(as defined in section 3701 of title 5) and the Office of the Chief Technology
Officer of the District of Columbia; and
`(B) with respect to assignments under chapter 38 of title 5, means an agency
(as defined by section 3801 of title 5).'.
(3) ELIGIBILITY FOR THRIFT SAVINGS PLAN- Section 125(c)(1)(D) of Public
Law 100-238 (101 Stat. 1757; 5 U.S.C. 8432 note) is amended by inserting
`or 38' after `chapter 37'.
SEC. 102. SHARE-IN-SAVINGS AMENDMENTS.
(a) Defense Contracts- Section 2332 of title 10, United States Code, is amended--
(1) in subsection (b)(3)(B), by striking `in each of fiscal years 2003,
2004, and 2005' and inserting `in the fiscal year'; and
(2) by striking subsection (d).
(b) Other Contracts- Section 317 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 266a) is amended--
(1) in subsection (b)(3)(B), by striking `in each of fiscal years 2003,
2004, and 2005' and inserting `in the fiscal year'; and
(2) by striking subsection (d).
(c) Technical Correction Amendment- Section 317 of such Act (41 U.S.C. 266a)
is amended in subsection (b)(3)(B) by striking `chapter' and inserting `title'.
SEC. 103. AGENCY ACQUISITION PROTESTS.
(a) Defense Contracts- (1) Chapter 137 of title 10, United States Code, is
amended by inserting after section 2305a the following new section:
`Sec. 2305b. Protests
`(a) In General- An interested party may protest an acquisition of supplies
or services by an agency based on an alleged violation of an acquisition law
or regulation, and a decision regarding such alleged violation shall be made
by the agency in accordance with this section.
`(b) Restriction on Contract Award Pending- (1) Except as provided in paragraph
(2), a contract may not be awarded by an agency after a protest concerning
the acquisition has been submitted under this section and while the protest
is pending.
`(2) The head of the acquisition activity responsible for the award of the
contract may authorize the award of a contract, notwithstanding a pending
protest under this section, upon making a written finding that urgent and
compelling circumstances do not allow for waiting for a decision on the protest.
`(c) Restriction on Contract Performance Pending Decision- (1) Except as provided
in paragraph (2), performance of a contract may not be authorized (and performance
of the contract shall cease if performance has already begun) in any case
in which a protest of the contract award is submitted under this section before
the later of--
`(A) the date that is 10 days after the date of contract award; or
`(B) the date that is five days after an agency debriefing date offered
to an unsuccessful offeror for any debriefing that is requested and, when
requested, is required, under section 2305(b)(5) of this title.
`(2) The head of the acquisition activity responsible for the award of a contract
may authorize performance of the contract notwithstanding a pending protest
under this section upon making a written finding that urgent and compelling
circumstances do not allow for waiting for a decision on the protest.
`(d) Deadline for Decision- The head of an agency shall issue a decision on
a protest under this section not later than the date that is 20 working days
after the date on which the protest is submitted to such head of an agency.
`(e) Judicial Review- A decision on a protest under this section is not subject
to judicial review.
`(f) Construction- Nothing in this section shall affect the right of an interested
party to file a protest with the Comptroller General under subchapter V of
chapter 35 of title 31. An interested party who has filed a protest under
this section with respect to an acquisition may not file an action with respect
to that acquisition in the United States Court of Federal Claims while the
protest is pending.
`(g) Definitions- In this section, the terms `protest' and `interested party'
have the meanings given such terms in section 3551 of title 31.'.
(2) The table of sections at the beginning of such chapter is amended by inserting
after the item relating to section 2305a the following new item:
(b) Other Agencies- Title III of the Federal Property and Administrative Services
Act of 1949 is amended by inserting after section 303M (41 U.S.C. 253m) the
following new section:
`SEC. 303N. PROTESTS.
`(a) In General- An interested party may protest an acquisition of supplies
or services by an executive agency based on an alleged violation of an acquisition
law or regulation, and a decision regarding such alleged violation shall be
made by the agency in accordance with this section.
`(b) Restriction on Contract Award Pending Decision- (1) Except as provided
in paragraph (2), a contract may not be awarded by an agency after a protest
concerning the acquisition has been submitted under this section and while
the protest is pending.
`(2) The head of the acquisition activity responsible for the award of a contract
may authorize the award of the contract, notwithstanding a pending protest
under this section, upon making a written finding that urgent and compelling
circumstances do not allow for waiting for a decision on the protest.
`(c) Restriction on Contract Performance Pending Decision- (1) Except as provided
in paragraph (2), performance of a contract may not be authorized (and performance
of the contract shall cease if performance has already begun) in any case
in which a protest of the contract award is submitted under this section before
the later of--
`(A) the date that is 10 days after the date of contract award; or
`(B) the date that is five days after an agency debriefing date offered
to an unsuccessful offeror for any debriefing that is requested and, when
requested, is required, under section 303B(e) of this title.
`(2) The head of the acquisition activity responsible for the award of a contract
may authorize performance of the contract notwithstanding a pending protest
under this section upon making a written finding that urgent and compelling
circumstances do not allow for waiting for a decision on the protest.
`(d) Deadline for Decision- The head of an executive agency shall issue a
decision on a protest under this section not later than the date that is 20
working days after the date on which the protest is submitted to the executive
agency.
`(e) Judicial Review- A decision on a protest under this section shall not
be subject to judicial review.
`(f) Construction- Nothing in this section shall affect the right of an interested
party to file a protest with the Comptroller General under subchapter V of
chapter 35 of title 31, United States Code. An interested party who has filed
a protest under this section with respect to an acquisition may not file an
action with respect to that acquisition in the United States Court of Federal
Claims while the protest is pending.
`(g) Definitions- In this section, the terms `protest' and `interested party'
have the meanings given such terms in section 3551 of title 31, United States
Code.'.
(c) Conforming Amendment- Section 3553(d)(4) of title 31, United States Code,
is amended--
(1) in subparagraph (A), by striking `or' at the end;
(2) by striking the period at the end of subparagraph (B) and inserting
`; or'; and
(3) by adding at the end the following new subparagraph:
`(C) in the case of a protest of the same matter regarding such contract
that is submitted under section 2305b of title 10 or section 303N of the
Federal Property and Administrative Services Act of 1949, the date that
is 5 days after the date on which a decision on that protest is issued.'.
SEC. 104. USE OF COMMERCIALLY AVAILABLE ONLINE SERVICES FOR FEDERAL PROCUREMENT
OF COMMERCIAL ITEMS.
(a) Amendment to the Federal Acquisition Regulation- Not later than 180 days
after the date of the enactment of this Act, the Federal Acquisition Regulation
shall be revised to include provisions that require the head of an executive
agency, to the maximum extent practicable, to use commercially available online
procurement services to purchase commercial items, including those procurement
services that allow the agency to conduct reverse auctions.
(b) Report- Not later than one year after the revisions to the Federal Acquisition
Regulation are issued pursuant to subsection (a), the Administrator for Federal
Procurement Policy shall submit to the Committees on Homeland Security and
Governmental Affairs and on Armed Services of the Senate and the Committees
on Government Reform and on Armed Services of the House of Representatives
a report on the use of commercially available online procurement services.
The report shall include--
(1) a list of the executive agencies that have used commercially available
online procurement services, and the number of times each has so used such
services;
(2) a list of the types of commercially available online procurement services
used by each executive agency and the dollar value of the procurements conducted
through each type of commercially available online procurement service;
and
(3) the Administrator's recommendations for further encouraging the use
of commercially available online procurement services, particularly those
that afford the Federal Government the opportunity to conduct reverse auctions.
(c) Definitions- In this section:
(1) The term `commercially available online procurement services', with
respect to procurement by executive agencies, includes reverse auctions
and other services accessible on the Internet that allow executive agencies
to purchase commercial items from electronic catalogs and offerors to bid
for delivery orders of such items.
(2) The term `reverse auction', with respect to procurement by executive
agencies, means a method of soliciting offers on the Internet for commercial
items, not including construction-related services, in which--
(A) firms compete against each other on the Internet in real time and
in an open and interactive environment; and
(B) each firm's identity and pricing are safeguarded.
(3) The term `Federal Acquisition Regulation' means the single Government-wide
procurement regulation issued in accordance with sections 6 and 25 of the
Office of Federal Procurement Policy Act (41 U.S.C. 405 and 421).
(4) The terms `executive agency', `commercial item', and `procurement' have
the meanings provided those terms in section 4 of the Office of Federal
Procurement Policy Act (41 U.S.C. 403 et seq.).
SEC. 105. EXTENSION OF DEADLINE FOR REPORT FROM STATUTORY AND REGULATORY
ADVISORY PANEL.
Subsection (d) of section 1423 of the Services Acquisition Reform Act of 2003
(Public Law 108-136; 41 U.S.C. 405 note) is amended by striking `one year'
and inserting `two years'.
SEC. 106. ADJUSTMENT OF COST ACCOUNTING STANDARD THRESHOLD.
Section 26(f)(2)(A) of the Office of Federal Procurement Policy Act (41 U.S.C.
422(f)(A)) is amended by striking `$500,000' and inserting `$550,000'.
SEC. 107. USE OF FEDERAL SUPPLY SCHEDULES BY STATE AND LOCAL GOVERNMENTS
FOR GOODS AND SERVICES FOR DEFENSE AGAINST OR RECOVERY FROM TERRORISM OR NUCLEAR,
BIOLOGICAL, CHEMICAL, OR RADIOLOGICAL ATTACK.
(a) Authority to Use Supply Schedules for Certain Goods and Services- Section
502 of title 40, United States Code, is amended by adding at the end the following
new subsection:
`(d) Use of Supply Schedules for Certain Goods and Services-
`(1) IN GENERAL- The Administrator may provide for the use by State or local
governments of Federal supply schedules of the General Services Administration
for goods and services that are used to facilitate defense against or recovery
from terrorism or nuclear, biological, chemical, or radiological attack.
`(2) DETERMINATION BY SECRETARY OF HOMELAND SECURITY- The Secretary of Homeland
Security shall determine which goods and services qualify as goods and services
described in paragraph (1) before the Administrator provides for the use
of the Federal supply schedule relating to such goods and services.
`(3) VOLUNTARY USE- In the case of the use by a State or local government
of a Federal supply schedule pursuant to paragraph (1), participation by
a firm that sells to the Federal Government through the supply schedule
shall be voluntary with respect to a sale to the State or local government
through such supply schedule.
`(4) DEFINITIONS- The definitions in subsection (c)(3) shall apply for purposes
of this section.'.
(b) Procedures- Not later than 30 days after the date of the enactment of
this Act, the Administrator of General Services shall establish procedures
to implement section 502(d) of title 40, United States Code (as added by subsection
(a).
SEC. 108. UNIFORM PAYMENT STANDARDS FOR CONTRACT FINANCING.
(a) Revision of Federal Acquisition Regulation- Not later than 180 days after
the date of the enactment of this Act, the Federal Acquisition Regulation
shall be revised to establish payment terms for contract financing payments
that are not otherwise subject to other laws governing payment terms. The
revisions shall provide that--
(1) all contract financing payments be made by the agency concerned as quickly
as practicable;
(2) to the maximum extent practicable, contract financing payments be made
within 14 days after receipt and approval of an invoice by a government
official; and
(3) in determining the appropriate payment terms for a contract, an agency
should consider--
(A) geographical separation;
(C) contractor ability to submit a proper request for payment; and
(D) other factors that could affect timing of payment.
(b) Definitions- In this section:
(1) FEDERAL ACQUISITION REGULATION- The term `Federal Acquisition Regulation'
means the single Government-wide procurement regulation issued in accordance
with sections 6 and 25 of the Office of Federal Procurement Policy Act (41
U.S.C. 405 and 421).
(2) CONTRACT FINANCING PAYMENT- The term `contract financing payment'--
(A) means an authorized Government disbursement of monies to a contractor
before acceptance of supplies or services by the Government;
(ii) performance-based payments;
(iii) commercial advance and interim payments;
(iv) progress payments based on cost;
(v) progress payments based on a percentage or state of completion;
and
(vi) interim payments under a cost reimbursement contract; and
(ii) payments for partial deliveries; or
(iii) lease and rental payments.
TITLE II--CONTRACT DISPUTE ENHANCEMENT
Subtitle A--General Provisions
SEC. 211. DEFINITIONS.
(a) In General- The Office of Federal Procurement Policy Act (41 U.S.C. 401
et seq.) is amended by adding at the end the following:
`TITLE II--DISPUTE RESOLUTION
`Subtitle A--General Provisions
`SEC. 201. DEFINITIONS.
`(1) The term `Defense Board' means the Department of Defense Board of Contract
Appeals established pursuant to section 8(a)(1) of the Contract Disputes
Act of 1978 (41 U.S.C. 607).
`(2) The term `Civilian Board' means the Civilian Board of Contract Appeals
established pursuant to section 8(b)(1) of the Contract Disputes Act of
1978 (41 U.S.C. 607).
`(3) The term `Board judge' means a member of the Defense Board or the Civilian
Board, as the case may be.
`(4) The term `Chairman' means the Chairman of the Defense Board or the
Civilian Board, as the case may be.
`(5) The term `Board concerned' means--
`(A) the Defense Board with respect to matters within its jurisdiction;
and
`(B) the Civilian Board with respect to matters within its jurisdiction.
`(6) The term `executive agency'--
`(A) with respect to contract disputes under the jurisdiction of the Defense
Board, means the Department of Defense, the Department of the Army, the
Department of the Navy, the Department of the Air Force, or the National
Aeronautics and Space Administration; and
`(B) with respect to contract disputes under the jurisdiction of the Civilian
Board, has the meaning given by section 4(1) of this Act except that the
term does not include the Department of Defense, the Department of the
Army, the Department of the Navy, the Department of the Air Force, the
National Aeronautics and Space Administration, and the Tennessee Valley
Authority.'.
(b) Conforming Amendments- The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.) is further amended--
(1) by inserting the following before section 1:
`TITLE I--FEDERAL PROCUREMENT POLICY GENERALLY';
(2) in section 4, by striking out `As used in this Act:' and inserting in
lieu thereof `Except as otherwise specifically provided, as used in this
Act:'.
Subtitle B--Establishment of Civilian and Defense Boards of Contract Appeals
SEC. 221. ESTABLISHMENT.
(a) Defense Board- Subsection (a)(1) of section 8 of the Contract Disputes
Act of 1978 (41 U.S.C. 607) is amended to read as follows:
`(a)(1) There is established in the Department of Defense a board of contract
appeals to be known as the Department of Defense Board of Contract Appeals.'.
(b) Civilian Board- Subsection (b)(1) of section 8 of the Contract Disputes
Act of 1978 (41 U.S.C. 607) is amended to read as follows:
`(b)(1) There is established in the General Services Administration a board
of contract appeals to be known as the Civilian Board of Contract Appeals.'.
SEC. 222. MEMBERSHIP.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), as amended
by section 211, is further amended by adding at the end the following:
`SEC. 202. MEMBERSHIP.
`(a) Appointment- (1)(A) The Defense Board shall consist of judges appointed
by the Secretary of Defense from a register of applicants maintained by the
Defense Board, in accordance with rules issued by the Defense Board for establishing
and maintaining a register of eligible applicants and selecting Defense Board
judges. The Secretary shall appoint a judge without regard to political affiliation
and solely on the basis of the professional qualifications required to perform
the duties and responsibilities of a Defense Board judge.
`(B) The Civilian Board shall consist of judges appointed by the Administrator
for Federal Procurement Policy from a register of applicants maintained by
the Administrator, in accordance with rules issued by the Administrator for
establishing and maintaining a register of eligible applicants and selecting
Civilian Board judges. The Administrator shall appoint a judge without regard
to political affiliation and solely on the basis of the professional qualifications
required to perform the duties and responsibilities of a Civilian Board judge.
`(2) The members of the Defense Board and the Civilian Board shall be selected
and appointed to serve in the same manner as administrative law judges appointed
pursuant to section 3105 of title 5, United States Code, with an additional
requirement that such members shall have had not fewer than five years of
experience in public contract law.
`(3) Notwithstanding paragraph (2) and subject to subsection (b), the following
persons shall serve as Board judges:
`(A) For the Defense Board, any full-time member of the Armed Services Board
of Contract Appeals serving as such on the day before the effective date
of this title.
`(B) For the Civilian Board, any full-time member of any agency board of
contract appeals other than the Armed Services Board of Contract Appeals,
the Postal Service Board of Contract Appeals, and the board of contract
appeals of the Tennessee Valley Authority serving as such on the day before
the effective date of this title.
`(b) Removal- Members of the Defense Board and the Civilian Board shall be
subject to removal in the same manner as administrative law judges, as provided
in section 7521 of title 5, United States Code.
`(c) Compensation- Compensation for the Chairman of the Defense Board and
the Chairman of the Civilian Board and all other members of each Board shall
be determined under section 5372a of title 5, United States Code.'.
SEC. 223. CHAIRMEN.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), as amended
by section 222, is further amended by adding at the end the following:
`SEC. 203. CHAIRMEN.
`(a) Designation- (1)(A) The Chairman of the Defense Board shall be designated
by the Secretary of Defense to serve for a term of five years. The Secretary
shall select the Chairman from among sitting judges each of whom has had at
least five years of service as a member of the Armed Services Board of Contract
Appeals.
`(B) The Chairman of the Civilian Board shall be designated by the Administrator
for Federal Procurement Policy to serve for a term of five years. The Administrator
shall select the Chairman from among sitting judges each of whom has had at
least five years of service as a member of an agency board of contract appeals
other than the Armed Services Board of Contract Appeals.
`(2) A Chairman of a Board may continue to serve after the expiration of the
Chairman's term until a successor has taken office. A Chairman may be reappointed
any number of times.
`(b) Responsibilities- The Chairman of the Defense Board or the Civilian Board,
as the case may be, shall be responsible on behalf of the Board for the executive
and administrative operation of the Board, including functions of the Board
with respect to the following:
`(1) The selection, appointment, and fixing of the compensation of such
personnel, pursuant to part III of title 5, United States Code, as the Chairman
considers necessary or appropriate, including a Clerk of the Board, a General
Counsel, and clerical and legal assistance for Board judges.
`(2) The supervision of personnel employed by or assigned to the Board,
and the distribution of work among such personnel.
`(3) The operation of an Office of the Clerk of the Board, including the
receipt of all filings made with the Board, the assignment of cases, and
the maintenance of all records of the Board.
`(4) The prescription of such rules and regulations as the Chairman considers
necessary or appropriate for the administration and management of the Board.
`(c) Vice Chairmen- The Chairman of the Defense Board or the Civilian Board,
as the case may be, may designate up to two other Board judges as Vice Chairmen.
The Vice Chairmen, in the order designated by the Chairman, shall act in the
place and stead of the Chairman during the absence of the Chairman.'.
SEC. 224. RULEMAKING AUTHORITY.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), as amended
by section 223, is further amended by adding at the end the following:
`SEC. 204. RULEMAKING AUTHORITY.
`Except as provided by section 252 of the Acquisition System Improvement Act,
the Chairman of the Defense Board and the Chairman of the Civilian Board,
in consultation with the Administrator for Federal Procurement Policy, shall
jointly issue and maintain--
`(1) such procedural rules and regulations as are necessary to the exercise
of the functions of the Boards under section 211; and
`(2) statements of policy of general applicability with respect to such
functions.'.
SEC. 225. AUTHORIZATION OF APPROPRIATIONS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), as amended
by section 224, is further amended by adding at the end the following:
`SEC. 205. AUTHORIZATION OF APPROPRIATIONS.
`There are authorized to be appropriated for fiscal year 2005 and each succeeding
fiscal year such sums as may be necessary to carry out the provisions of this
title. Funds for the activities of each Board shall be separately appropriated
for such purpose. Funds appropriate pursuant to this section shall remain
available until expended.'.
Subtitle C--Functions of Defense and Civilian Boards of Contract Appeals
SEC. 231. CONTRACT DISPUTES.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), as amended
by section 225, is further amended by adding at the end the following:
`Subtitle B--Functions of the Defense and Civilian Boards of Contract Appeals
`SEC. 211. CONTRACT DISPUTES.
`The Defense Board shall have jurisdiction as provided by section 8(a)(1)
of the Contract Disputes Act of 1978 (41 U.S.C. 607(a)). The Civilian Board
shall have jurisdiction as provided by section 8(b)(1) of such Act (41 U.S.C.
607(b)).'.
SEC. 232. ENHANCED ACCESS FOR SMALL BUSINESS.
Section 9(a) of the Contract Disputes Act of 1978 (41 U.S.C. 608) is amended
by striking out the period at the end of the first sentence and inserting
the following: `or, in the case of a small business concern (as defined in
the Small Business Act and regulations under that Act), $150,000 or less.'.
SEC. 233. APPLICABILITY TO CERTAIN CONTRACTS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.), as amended
by section 231, is further amended by adding at the end the following:
`SEC. 212. APPLICABILITY TO CERTAIN CONTRACTS.
`(a) Contracts at or Below the Simplified Acquisition Threshold- Notwithstanding
section 33 of this Act, the authority conferred on the Defense Board and the
Civilian Board by this title is applicable to contracts in amounts not greater
than the simplified acquisition threshold.
`(b) Contracts for Commercial Items- Notwithstanding section 34 of this Act,
the authority conferred on the Defense Board and the Civilian Board by this
title is applicable to contracts for the procurement of commercial items.'.
Subtitle D--Transfers and Transition, Savings, and Conforming Provisions
SEC. 241. TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PERSONNEL.
(1) ARMED SERVICES BOARD OF CONTRACT APPEALS- The personnel employed in
connection with, and the assets, liabilities, contracts, property, records,
and unexpended balance of appropriations, authorizations, allocations, and
other funds employed, held, used, arising from, available to, or to be made
available in connection with the functions vested by law in the Armed Services
Board of Contract Appeals established pursuant to section 8 of the Contract
Disputes Act of 1978 (41 U.S.C. 607) (as in effect on the day before the
effective date described in section 251), shall be transferred to the Department
of Defense Board of Contract Appeals for appropriate allocation by the Chairman
of that Board.
(2) OTHER BOARDS OF CONTRACTS APPEALS- The personnel employed in connection
with, and the assets, liabilities, contracts, property, records, and unexpended
balance of appropriations, authorizations, allocations, and other funds
employed, held, used, arising from, available to, or to be made available
in connection with the functions vested by law in the boards of contract
appeals established pursuant to section 8 of the Contract Disputes Act of
1978 (41 U.S.C. 607) (as in effect on the day before the effective date
described in section 251) other than the Armed Services Board of Contract
Appeals, the board of contract appeals of the Tennessee Valley Authority,
and the Postal Service Board of Contract Appeals shall be transferred to
the Civilian Board of Contract Appeals for appropriate allocation by the
Chairman of that Board.
(b) Effect on Personnel- Personnel transferred pursuant to this subtitle shall
not be separated or reduced in compensation for one year after such transfer,
except for cause.
(c) Regulations- (1) The Department of Defense Board of Contract Appeals and
the Civilian Board of Contract Appeals shall each prescribe regulations for
the release of competing employees in a reduction in force that gives due
effect to--
(A) efficiency or performance ratings;
(B) military preference; and
(C) tenure of employment.
(2) In prescribing the regulations, the Board concerned shall provide for
military preference in the same manner as set forth in subchapter I of chapter
35 of title 5, United States Code.
SEC. 242. TERMINATIONS AND SAVINGS PROVISIONS.
(a) Termination of Boards of Contract Appeals- Effective on the effective
date described in section 251, the boards of contract appeals established
pursuant to section 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607)
(as in effect on the day before such effective date), other than the board
of contract appeals of the Tennessee Valley Authority and the Postal Service
Board of Contract Appeals, shall terminate.
(b) Savings Provision for Contract Dispute Matters Pending Before Boards-
(1) This title and the amendments made by this title shall not affect any
proceedings pending on the effective date described in section 251 before
any board of contract appeals terminated by subsection (a).
(2) In the case of any such proceedings pending before the Armed Services
Board of Contract Appeals, the proceedings shall be continued by the Department
of Defense Board of Contract Appeals, and orders which were issued in any
such proceeding by the Armed Services Board of Contract Appeals shall continue
in effect until modified, terminated, superseded, or revoked by the Department
of Defense Board of Contract Appeals, by a court of competent jurisdiction,
or by operation of law.
(3) In the case of any such proceedings pending before an agency board of
contract appeals other than the Armed Services Board of Contract Appeals or
the board of contract appeals of the Tennessee Valley Authority, the proceedings
shall be continued by the Civilian Board of Contract Appeals, and orders which
were issued in any such proceeding by the agency board shall continue in effect
until modified, terminated, superseded, or revoked by the Civilian Board of
Contract Appeals, by a court of competent jurisdiction, or by operation of
law.
SEC. 243. CONTRACT DISPUTES AUTHORITY OF BOARDS.
(a) Section 2 of the Contract Disputes Act of 1978 (41 U.S.C. 601) is amended--
(1) in paragraph (2), by striking out `, the United States Postal Service,
and the Postal Rate Commission';
(2) by redesignating paragraph (7) as paragraph (9);
(3) by amending paragraph (6) to read as follows:
`(6) the terms `agency board' or `agency board of contract appeals' mean--
`(1) the Department of Defense Board of Contract Appeals established under
section 8(a)(1) of this Act;
`(2) the Civilian Board of Contract Appeals established under section
8(b)(1) of this Act;
`(3) the board of contract appeals of the Tennessee Valley Authority;
or
`(4) the Postal Service Board of Contract Appeals established under section
8(h) of this Act;'; and
(4) by inserting after paragraph (6) the following new paragraphs:
`(7) the term `Defense Board' means the Department of Defense Board of Contract
Appeals established under section 8(a)(1) of this Act;
`(8) the term `Civilian Board' means the Civilian Board of Contract Appeals
established under section 8(b)(1) of this Act; and'.
(b) Section 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607), as amended
by section 221, is further amended--
(1) by striking out subsection (c);
(A) by striking out the first sentence and inserting in lieu thereof the
following: `The Defense Board shall have jurisdiction to decide any appeal
from a decision of a contracting officer of the Department of Defense,
the Department of the Army, the Department of the Navy, the Department
of the Air Force, or the National Aeronautics and Space Administration
relative to a contract made by that department or agency. The Civilian
Board shall have jurisdiction to decide any appeal from a decision of
a contracting officer of any executive agency (other than the Department
of Defense, the Department of the Army, the Department of the Navy, the
Department of the Air Force, the National Aeronautics and Space Administration,
the United States Postal Service, the Postal Rate Commission, or the Tennessee
Valley Authority) relative to a contract made by that agency. Each other
agency board shall have jurisdiction to decide any appeal from a decision
of a contracting officer relative to a contract made by its agency.';
and
(B) in the second sentence, by striking out `Claims Court' and inserting
in lieu thereof `Court of Federal Claims';
(3) by striking out subsection (h) and inserting in lieu thereof the following:
`(h) There is established an agency board of contract appeals to be known
as the `Postal Service Board of Contract Appeals'. Such board shall have jurisdiction
to decide any appeal from a decision of a contracting officer of the United
States Postal Service or the Postal Rate Commission relative to a contract
made by either agency. Such board shall consist of judges appointed by the
Postmaster General who shall meet the qualifications of and serve in the same
manner as judges of the Civilian Board of Contract Appeals. This Act and title
II of the Office of Federal Procurement Policy Act shall apply to contract
disputes before the Postal Service Board of Contract Appeals in the same manner
as they apply to contract disputes before the Civilian Board.'; and
(4) by striking out subsection (i).
SEC. 244. REFERENCES TO AGENCY BOARDS OF CONTRACT APPEALS.
(a) Defense Board- Any reference to the Armed Services Board of Contract Appeals
in any provision of law or in any rule, regulation, or other paper of the
United States shall be treated as referring to the Department of Defense Board
of Contract Appeals.
(b) Civilian Board- Any reference to an agency board of contract appeals other
than the Armed Services Board of Contract Appeals, the board of contract appeals
of the Tennessee Valley Authority, or the Postal Service Board of Contract
Appeals in any provision of law or in any rule, regulation, or other paper
of the United States shall be treated as referring to the Civilian Board of
Contract Appeals.
SEC. 245. CONFORMING AMENDMENTS.
(a) Title 5- Section 5372a(a)(1) of title 5, United States Code, is amended
by inserting after `of 1978' the following: `or a member of the Department
of Defense Board of Contract Appeals or the Civilian Board of Contract Appeals
appointed under section 202 of the Office of Federal Procurement Policy Act'.
(b) Office of Federal Procurement Policy Act- The table of contents for the
Office of Federal Procurement Policy Act (contained in section 1(b)) is amended--
(1) by inserting the following before the item relating to section 1:
`TITLE I--FEDERAL PROCUREMENT POLICY GENERALLY';
(2) by adding at the end the following:
`TITLE II--DISPUTE RESOLUTION
`Subtitle A--General Provisions
`204. Rulemaking authority.
`205. Authorization of appropriations.
`Subtitle B--Functions of the Defense and Civilian Boards of Contract Appeals
`212. Applicability to certain contracts.'.
Subtitle E--Effective Date; Regulations and Appointment of Chairmen
SEC. 251. EFFECTIVE DATE.
Title II of the Office of Federal Procurement Policy Act, as added by this
title, and the amendments and repeals made by this title shall take effect
1 year after the date of the enactment of this Act.
SEC. 252. REGULATIONS.
(a) Regulations Regarding Claims- Not later than 1 year after the date of
the enactment of this Act, the Chairman of the Armed Services Board of Contract
Appeals and the Chairman of the General Services Board of Contract Appeals,
in consultation with the Administrator for Federal Procurement Policy, shall
jointly issue--
(1) such procedural rules and regulations as are necessary to the exercise
of the functions of the Department of Defense Board of Contract Appeals
and the Civilian Board of Contract Appeals under sections 211 of the Office
of Federal Procurement Policy Act (as added by this title); and
(2) statements of policy of general applicability with respect to such functions.
(b) Regulations Regarding Appointment of Judges- Not later than 1 year after
the date of the enactment of this Act--
(1) the Chairman of the Armed Services Board of Contract Appeals shall issue
rules governing the establishment and maintenance of a register of eligible
applicants and the selection of judges for the Department of Defense Board
of Contract Appeals; and
(2) the Administrator for Federal Procurement Policy shall issue rules governing
the establishment and maintenance of a register of eligible applicants and
the selection of judges for the Civilian Board of Contract Appeals.
SEC. 253. APPOINTMENT OF CHAIRMEN OF DEFENSE BOARD AND CIVILIAN BOARD.
Notwithstanding section 251, not later than 1 year after the date of the enactment
of this Act--
(1) the Secretary of Defense shall appoint the Chairman of the Department
of Defense Board of Contract Appeals; and
(2) the Administrator for Federal Procurement Policy shall appoint the Chairman
of the Civilian Board of Contract Appeals.
END
