To provide for flexibility in making emergency Federal procurements, and for other purposes.

May 9, 2002

Mr. BURTON of Indiana (for himself and Mr. TOM DAVIS of Virginia) introduced the following bill; which was referred to the Committee on Government Reform

To provide for flexibility in making emergency Federal procurements, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; DEFINITIONS.

(a) SHORT TITLE- This Act may be cited as the `Federal Emergency Procurement Flexibility Act of 2002'.

(b) DEFINITIONS- In this Act:

(1) EXECUTIVE AGENCY- The term `executive agency' has the meaning given the term in section 4(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)).

(2) FISCAL YEAR 2002 OR 2003 PROCUREMENT- The term `fiscal year 2002 or 2003 procurement' means a procurement for which funds are obligated during fiscal year 2002 or 2003.

TITLE I--FISCAL YEAR 2002 AND 2003 EMERGENCY PROCUREMENTS

SEC. 101. PROCUREMENTS FOR DEFENSE AGAINST, OR RECOVERY FROM, TERRORISM OR NUCLEAR, BIOLOGICAL, CHEMICAL, OR RADIOLOGICAL ATTACK.

(a) APPLICABILITY- The authorities provided in this title apply to any fiscal year 2002 or 2003 procurement of property or services by or for an executive agency that, as determined by the head of the executive agency, are to be used to facilitate the defense against, or recovery from, terrorism or nuclear, biological, chemical, or radiological attack.

(b) REQUIREMENT FOR ADVANCE APPROVAL- The authorities under sections 102 through 104 of this title may only be exercised, except in cases of unusual and compelling urgency, with the advance approval of the head of the applicable executive agency or his designee.

SEC. 102. INCREASED SIMPLIFIED ACQUISITION THRESHOLD FOR PROCUREMENTS IN SUPPORT OF HUMANITARIAN OR PEACEKEEPING OPERATIONS OR CONTINGENCY OPERATIONS.

(a) Fiscal Year 2002 and 2003 Threshold Amounts- For a procurement referred to in section 101 that is carried out in support of a humanitarian or peacekeeping operation or a contingency operation, the simplified acquisition threshold definitions shall be applied as if the amount determined under the exception provided for such an operation in those definitions were--

(1) in the case of a contract to be awarded and performed, or purchase to be made, inside the United States, $250,000; or

(2) in the case of a contract to be awarded and performed, or purchase to be made, outside the United States, $500,000.

(b) SIMPLIFIED ACQUISITION THRESHOLD DEFINITIONS- In this section, the term `simplified acquisition threshold definitions' means the following:

(1) Section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)).

(2) Section 309(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(d)).

(3) Section 2302(7) of title 10, United States Code.

SEC. 103. INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN PROCUREMENTS.

(a) IN GENERAL- (1) The head of each agency may designate certain employees of the agency to make procurements described in section 101 for which in the administration of section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428) the amount specified in subsections (c), (d), and (f) of such section 32 shall be deemed to be $15,000.

(2) The number of employees designated under paragraph (1) shall be--

(A) fewer than the number of employees of the agency who are authorized to make purchases without obtaining competitive quotations, pursuant to section 32(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 428(c)), unless otherwise authorized by the Director of the Office of Management and Budget;

(B) sufficient to ensure the geographic dispersal of the availability of the use of the procurement authority under such paragraph at locations reasonably considered to be potential terrorist targets; and

(C) sufficiently limited to allow for the careful monitoring of employees designated under such paragraph.

(b) CONFORMING AMENDMENT- Section 836 of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107; 10 U.S.C. 2302 note) is repealed.

SEC. 104. APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORITIES TO CERTAIN PROCUREMENTS.

(a) AUTHORITY-

(1) IN GENERAL- The head of an executive agency may apply the provisions of law listed in paragraph (2) to a procurement referred to in section 101 without regard to whether the property or services are commercial items.

(2) COMMERCIAL ITEM LAWS- The provisions of law referred to in paragraph (1) are as follows:

(A) Sections 31 and 34 of the Office of Federal Procurement Policy Act (41 U.S.C. 427, 430), except that no provision in such section 34 or regulation issued to implement such section shall be construed as exempting contracts awarded under the authority of this section from the provisions in section 2306a of

title 10, United States Code, or section 304A of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 254b), relating to truth in negotiations, or section 26 of the Office of Federal Procurement Policy Act (41 U.S.C. 422), relating to cost accounting standards).

(B) Section 2304(g) of title 10, United States Code.

(C) Section 303(g) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)).

(b) INAPPLICABILITY OF LIMITATION ON USE OF SIMPLIFIED ACQUISITION PROCEDURES- The $5,000,000 limitation provided in section 31(a)(2) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(2)), section 2304(g)(1)(B) of title 10, United States Code, and section 303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(B)) shall be deemed to be $10,000,000 for purposes of property or services to which any of the provisions of law referred to in subsection (a) are applied under the authority of this section.

(c) CONTINUATION OF AUTHORITY FOR SIMPLIFIED PURCHASE PROCEDURES- Authority under a provision of law referred to in subsection (a)(2) that expires under section 4202(e) of the Clinger-Cohen Act of 1996 (divisions D and E of Public Law 104-106; 10 U.S.C. 2304 note) shall, notwithstanding such section, continue to apply for a fiscal year 2002 or 2003 procurement as provided in subsections (a) and (b).

SEC. 105. USE OF STREAMLINED PROCEDURES.

(a) IN GENERAL- The head of an executive agency shall, when appropriate, use streamlined acquisition authorities and procedures authorized by law for a procurement referred to in section 101, including authorities and procedures that are provided under the following provisions of law:

(1) FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949- In title III of the Federal Property and Administrative Services Act of 1949:

(A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section 303 (41 U.S.C. 253), relating to use of procedures other than competitive procedures under certain circumstances (subject to subsection (e) of such section).

(B) Section 303J (41 U.S.C. 253j), relating to orders under task and delivery order contracts.

(2) TITLE 10, UNITED STATES CODE- In chapter 137 of title 10, United States Code:

(A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section 2304, relating to use of procedures other than competitive procedures under certain circumstances (subject to subsection (e) of such section).

(B) Section 2304c, relating to orders under task and delivery order contracts.

(3) OFFICE OF FEDERAL PROCUREMENT POLICY ACT- Paragraphs (1)(B), (1)(D), and (2) of section 18(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 416(c)), relating to inapplicability of a requirement for procurement notice.

(b) NON-DISCRIMINATION AGAINST SMALL-BUSINESS CONCERNS- Subsection (a) shall be applied in a manner that does not discriminate against small-business concerns (within the meaning of such term as used in the Small Business Act (15 U.S.C. 632 et seq.)) or any type of small-business concern.

SEC. 106. OFFICE OF MANAGEMENT AND BUDGET GUIDANCE.

(a) IN GENERAL- The Director of the Office of Management and Budget shall issue guidance and procedures regarding--

(1) the types of procurements that qualify under section 101 as facilitating the defense against, or recovery from, terrorism or nuclear, biological, chemical, or radiological attack;

(2) the implementation of section 103, including the appropriate number of employees that should be designated under section 103; and

(3) the use of simplified acquisition procedures for a purchase of property or services under the authority of section 104.

(b) NUMBER OF DESIGNATED EMPLOYEES- The guidance under subsection (a)(1) shall include provisions that provide the following:

(1) Procurements made under the authority of section 103 should be subject to review by a designated supervisor on not less than a monthly basis.

(2) The supervisor responsible for the review described in paragraph (1) shall be responsible for no more than 7 employees making procurements under section 103.

SEC. 107. REVIEW AND REPORT BY COMPTROLLER GENERAL.

Not later than 180 days after the end of fiscal year 2003, the Comptroller General shall submit to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives a report on the use of the authorities provided in this title. The report shall contain the following:

(1) An assessment of the extent to which property and services acquired using authorities provided under this title contributed to the capacity of the Federal workforce to facilitate the defense against, or recovery from, terrorism or nuclear, biological, chemical, or radiological attack.

(2) An assessment of the extent to which prices for property and services acquired using authorities provided under this title reflected the best value.

(3) The number of employees designated by each executive agency under section 103.

(4) An assessment of the extent to which the number of employees designated under section 103 by each executive agency is reasonable and necessary to achieve the purpose of facilitating the defense against, or recovery from, terrorism or nuclear, biological, chemical, or radiological attack.

(5) An assessment of the extent to which executive agencies have monitored the use of procurement authority by employees designated under section 103 to prevent fraud and abuse.

(6) Any recommendations of the Comptroller General for improving the effectiveness of the implementation of the provisions of this Act, taking into account the assessment performed under paragraphs (1), (4), and (5).

TITLE II--GOVERNMENTWIDE TRANSACTION AND PROJECT AUTHORITY

SEC. 201. AUTHORITY TO ENTER INTO CERTAIN PROCUREMENT-RELATED TRANSACTIONS.

(a) AUTHORITY- Title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) is amended by adding at the end the following new section:

`SEC. 317. AUTHORITY TO ENTER INTO CERTAIN TRANSACTIONS FOR DEFENSE AGAINST, OR RECOVERY FROM, TERRORISM OR NUCLEAR, BIOLOGICAL, CHEMICAL, OR RADIOLOGICAL ATTACK.

`(a) AUTHORITY-

`(1) IN GENERAL- The head of an executive agency who engages in basic research, applied research, advanced research, and development projects that--

`(A) are necessary to the responsibilities of such official's executive agency in the field of research and development, and

`(B) have the potential to facilitate defense against, or recovery from, terrorism or nuclear, biological, chemical, or radiological attack,

may exercise the same authority (subject to the same restrictions and conditions) with respect to such research and projects as the Secretary of Defense may exercise under section 2371 of title 10, United States Code, except for subsections (b), (f), and (g) of such section.

`(2) APPLICABILITY TO SELECTED EXECUTIVE AGENCIES- The head of an executive agency may exercise authority under this subsection only if authorized by the Director of the Office of Management and Budget to do so.

`(b) ANNUAL REPORT- The annual report of the head of an executive agency that is required under subsection (h) of section 2371 of title 10, United States Code, as applied to the head of an executive agency by subsection (a), shall be submitted to the Committee on Governmental Affairs of the Senate and the Committee on Government Reform of the House of Representatives.

`(c) REGULATIONS- The Director of the Office of Management and Budget shall prescribe regulations to carry out this section.'.

(b) CLERICAL AMENDMENT- The table of sections in section 1(b) of such Act is amended by inserting after the item relating to section 316 the following new item:

SEC. 202. TEMPORARY AUTHORITY FOR CARRYING OUT CERTAIN PROTOTYPE PROJECTS.

(a) IN GENERAL- The head of an executive agency designated by the Director of the Office of Management and Budget to do so may, under the authority of section 317 of the Federal Property and Administrative Services Act of 1949 (as added by subsection (a)), carry out prototype projects that meet the requirements of subparagraphs (A) and (B) of subsection (a)(1) of such section in accordance with the same requirements and conditions as are provided for carrying out prototype projects under section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160; 10 U.S.C. 2371 note).

(b) CONFORMING AUTHORITY- In the application of the requirements and conditions of section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160; 10 U.S.C. 2371 note) to the administration of authority under subsection (a)--

(1) subsection (c) of such section shall apply with respect to prototype projects carried out under this subsection; and

(2) the Director of the Office of Management and Budget shall perform the function of the Secretary of Defense under subsection (d) of such section.

TITLE III--OTHER MATTERS

SEC. 301. IDENTIFICATION OF NEW ENTRANTS INTO THE FEDERAL MARKETPLACE.

The head of each executive agency shall conduct market research on an ongoing basis to identify effectively the capabilities, including the capabilities of small businesses and new entrants into Federal contracting, that are available in the marketplace for meeting the requirements of the executive agency in furtherance of defense against, or recovery from, terrorism or nuclear, biological, chemical, or radiological attack. The head of the executive agency shall, to the maximum extent practicable, take advantage of commercially available market research methods, including use of commercial databases, to carry out the research.

END