Volume 98 · 3066
Public Law 98–577
To amend the Small Business Act, the Federal Property and Administrative Services Act of 1949, and the Office of Federal Procurement Policy Act to enhance competition in Government procurement, and for other purposes.
Approved October 30, 1984
Statutory text
An Act
To amend the Small Business Act, the Federal Property and Administrative Services Act of 1949, and the Office of Federal Procurement Policy Act to enhance competition in Government procurement, 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; table of contents
This Act, together with the following table of contents, may be cited as the “Small Business and Federal Procurement Competition Enhancement Act of 1984”.
TABLE OF CONTENTS
Sec. 101. purpose
The purposes of this Act are to—
eliminate procurement procedures and practices that unnecessarily inhibit full and open competition for contracts;
promote the use of contracting opportunities as a means to expand the industrial base of the United States in order to ensure adequate responsive capability of the economy to the increased demands of the Government in times of national emergency; and
foster opportunities for the increased participation in the
Disadvantaged persons.
competitive procurement process of small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals.
Sec. 102. definitions
Section 4 of the Office of Federal Policy Procurement Act
Ante, p. 1195.
is amended—
by striking out “and” at the end of paragraph (7);
by striking out the period at the end of paragraph (8) and inserting in lieu thereof a semicolon; and
by adding at the end thereof the following new paragraphs:
“(9) the term ‘technical data’ means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency. Such term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration;
“(10) (A) the term ‘major system’ means a combination of elements that will function together to produce the capabilities required to fulfill a mission need, which elements may include hardware, equipment, software or any combination thereof, but excludes construction or other improvements to real property; and
“(B) a system shall be considered a major system if (i) the Department of Defense is responsible for the system and the total expenditures for research, development, test and evaluation for the system are estimated to be more than $75,000,000 (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement of more than $300,000,000 (based on fiscal year 1980 constant dollars); (ii) a civilian agency is responsible for the system and total expenditures for the system are estimated to exceed $750,000 (based on fiscal year 1980 constant dollars) or the dollar threshold for a ‘major system’ established by the agency pursuant to Office of Management and Budget (OMB) Circular A–109, entitled ‘Major Systems Acquisitions’, whichever is greater; or (iii) the system is designated a ‘major system’ by the head of the agency responsible for the system; and
“(11) the term ‘item’, ‘item of supply’, or ‘supplies’ means any individual part, component, subassembly, assembly, or subsystem integral to a major system, and other property which may be replaced during the service life of the system, and includes spare parts and replenishment spare parts, but does not include packaging or labeling associated with shipment or identification of an ‘item’.”.
TITLE II— AMENDMENTS TO THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949
Sec. 201. planning for future competition
Section 303B of the Federal Property and Administrative Services Act of 1949 (hereafter in this title referred to as “the Act”) is amended by adding at the end thereof the following new subsection:
“(f) (1) (A) In preparing a solicitation for the award of a development contract for a major system, the head of an agency shall consider requiring in the solicitation that an offeror include in its
Science and technology.
offer proposals described in subparagraph (B). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system’s required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror’s price.
“(B) The proposals that the head of an agency is to consider requiring in a solicitation for the award of a development contract are the following:
“(i) Proposals to incorporate in the design of the major system items which are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source.
“(ii) With respect to items that are likely to be required in substantial quantities during the system’s service life, proposals to incorporate in the design of the major system items which the United States will be able to acquire competitively in the future.
“(2) (A) In preparing a solicitation for the award of a production contract for a major system, the head of an agency shall consider requiring in the solicitation that an offeror include in its offer proposals described in subparagraph (B). In determining whether to require such proposals, the head of the agency shall give due consideration to the purposes for which the system is being procured and the technology necessary to meet the system’s required capabilities. If such proposals are required, the head of the agency shall consider them in evaluating the offeror’s price.
“(B) The proposals that the head of an agency is to consider requiring in a solicitation for the award of a production contract are proposals identifying opportunities to ensure that the United States will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals submitted in response to such requirement may include the following:
“(i) Proposals to provide to the United States the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the United States, if any, of acquiring such technical data and the right to use such data.
“(ii) Proposals for the qualification or development of multiple sources of supply for the item.
“(3) If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in paragraphs (1) and (2) to be considered in evaluating an offer for a contract may be considered as objectives in negotiating the contract to be awarded.”.
The amendment made by subsection (a) shall apply with
Effective date.
respect to any solicitation issued more than 180 days after the date of the enactment of this Act.
Sec. 202. encouraging new competitors
Title III of the Act is amended by inserting after section 303C the following new section:
“Sec. 303D. “encouragement of new competition
(a) In this section, ‘qualification requirement’ means a
requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a contract.
“(b) Except as provided in subsection (c), the head of the agency shall, before enforcing any qualification requirement—
“(1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award;
“(2) specify in writing and make available to a potential offeror upon request all requirements which a prospective offeror, or its product, must satisfy in order to become qualified, such requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification requirement;
“(3) specify an estimate of the costs of testing and evaluation likely to be incurred by a potential offeror in order to become qualified;
“(4) ensure that a potential offeror is provided, upon request, a prompt opportunity to demonstrate at its own expense (except as provided in subsection (d)) its ability to meet the standards specified for qualification using qualified personnel and facilities of the agency concerned or of another agency obtained through interagency agreement, or under contract, or other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency);
“(5) if testing and evaluation services are provided under contract to the agency for the purposes of clause (4), provide to the extent possible that such services be provided by a contractor who is not expected to benefit from an absence of additional qualified sources and who shall be required in such contract to adhere to any restriction on technical data asserted by the potential offeror seeking qualification; and
“(6) ensure that a potential offeror seeking qualification is promptly informed as to whether qualification is attained and, in the event qualification is not attained, is promptly furnished specific information why qualification was not attained.
“(c) (1) Subsection (b) of this section does not apply with respect to a qualification requirement established by statute prior to the date of enactment of this section.
“(2) Except as provided in paragraph (3), if it is unreasonable to specify the standards for qualification which a prospective offeror or its product must satisfy, a determination to that effect shall be submitted to the advocate for competition of the procuring activity responsible for the purchase of the item subject to the qualification requirement. After considering any comments of the advocate for competition reviewing such determination, the head of the procuring activity may waive the requirements of paragraphs (2) through (5) of subsection (b) for up to two years with respect to the item subject to the qualification requirement.
“(3) The waiver authority contained in paragraph (2) shall not apply with respect to any qualified products list.
“(4) A potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror has not been identified as meeting a qualification requirement, if the potential offeror can demonstrate to the satisfaction of the contracting officer that the potential offeror or its product meets the standards established for qualification or can meet such standards before the date specified for award of the contract.
“(5) Nothing contained in this subsection requires the referral of an offer to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act if the basis for the referral is a challenge by the offeror to either the validity of the qualification requirement or the offeror’s compliance with such requirement.
“(6) The head of an agency need not delay a proposed procurement in order to comply with subsection (b) or in order to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification.
“(d) (1) If the number of qualified sources or qualified products available to compete actively for an anticipated future requirement is fewer than two actual manufacturers or the products of two actual manufacturers, respectively, the head of the agency concerned shall—
“(A) periodically publish notice in the Commerce Business Daily soliciting additional sources or products to seek qualification, unless the contracting officer determines that such publication would compromise national security; and
“(B) bear the cost of conducting the specified testing and evaluation (excluding the costs associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern which has met the standards specified for qualification and which could reasonably be expected to compete for a contract for that requirement, but such costs may be borne only if the head of the agency determines that such additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to offset (within a reasonable period of time considering the duration and dollar value of anticipated future requirements) the costs incurred by the agency.
“(2) The head of an agency shall require a prospective contractor requesting the United States to bear testing and evaluation costs under paragraph (1)(B) to certify as to its status as a small business concern under section 3 of the Small Business
Act.
“(e) Within seven years after the establishment of a qualification requirement, the need for such qualification requirement shall be examined and the standards of such requirement revalidated in accordance with the requirements of subsection (b). The preceding sentence does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2).
“(f) Except in an emergency as determined by the head of the agency, whenever the head of the agency determines not to enforce a qualification requirement for a solicitation, the agency may not thereafter enforce that qualification requirement unless the agency complies with the requirements of subsection (b).”.
The amendment made by subsection (a) shall apply with
Effective date.
respect to solicitations issued more than 180 days after the date of enactment of this Act.
Sec. 203. validation of proprietary data restrictions
Title III of the Act is amended by inserting after section 303D (as added by section 202 of this Act) the following new section:
“Sec. 303E. “validation of proprietary data restrictions
(a) A contract for property or services entered into by
Science and technology.
an executive agency which provides for the delivery of technical data, shall provide that—
“(1) a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction asserted by the contractor or subcontractor on the right of the United States to use such technical data; and
“(2) the contracting officer may review the validity of any restriction asserted by the contractor or by a subcontractor under the contract on the right of the United States to use technical data furnished to the United States under the contract if the contracting officer determines that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the United States would make it impracticable to procure the item competitively at a later time.
“(b) If after such review the contracting officer determines that a challenge to the asserted restriction is warranted, the contracting officer shall provide written notice to the contractor or subcontractor asserting the restriction. Such notice shall state—
“(1) the grounds for challenging the asserted restriction; and
“(2) the requirement for a response within 60 days justifying the current validity of the asserted restriction.
“(c) If a contractor or subcontractor asserting a restriction subject to this section submits to the contracting officer a written request, showing the need for additional time to comply with the requirement to justify the current validity of the asserted restriction, additional time to adequately permit the submission of such justification shall be provided by the contracting officer as appropriate. If a party asserting a restriction receives notices of challenges to restrictions on technical data from more than one contracting officer, and notifies each contracting officer of the existence of more than one challenge, the contracting officer initiating the first in time challenge, after consultation with the party asserting the restriction and the other contracting officers, shall formulate a schedule of responses to each of the challenges that will afford the party asserting the restriction with an equitable opportunity to respond to each such challenge.
“(d) (1) Upon a failure by the contractor or subcontractor to submit any response under subsection (b), the contracting officer shall issue a decision pertaining to the validity of the asserted restriction.
“(2) If a justification is submitted in response to the notice provided pursuant to subsection (b), a contracting officer shall within 60 days of receipt of any justification submitted, issue a decision or notify the party asserting the restriction of the time within which a decision will be issued.
“(e) If a claim pertaining to the validity of the asserted restriction is submitted in writing to a contracting officer by a contractor or subcontractor at any tier, such claim shall be considered a claim within the meaning of the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.).
“(f) (1) If, upon final disposition, the contracting officer’s challenge to the restriction on the right of the United States to use such technical data is sustained—
“(A) the restriction on the right of the United States to use the technical data shall be cancelled; and
“(B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor, as appropriate, shall be liable to the United States for payment of the cost to the United States of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the United States in challenging the asserted restriction, unless special circumstances would make such payment unjust.
“(2) If, upon final disposition, the contracting officer’s challenge to the restriction on the right of the United States to use such technical data is not sustained—
“(A) the United States shall continue to be bound by the restriction; and
“(B) the United States shall be liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the United States is found not to be made in good faith.”.
The amendment made by subsection (a) shall apply with respect to solicitations issued more than 60 days after the date of the enactment of this Act.
Sec. 204. commercial pricing for supplies
Title III of the Act is further amended by inserting after section 303E (as added by section 203 of this Act) the following new section:
“Sec. 303F. “commercial pricing for supplies
(a) Except in the case of an offer submitted with a written statement under subsection (b)(2) and except as provided in subsection (c), a contract entered into using other than competitive procedures by an executive agency for the purchase of items that are offered for sale to the public may not result in a price to the United States that exceeds the lowest price at which such items are sold by the contractor to the public.
“(b) A person who submits an offer to an executive agency for the supply of items that it offers for sale to the public (1) shall certify in the offer that the price offered is not more than its lowest commercial price for the items, or (2) shall submit with the offer a written statement specifying the amount of the difference between its lowest commercial price for the items and the price offered, and providing a justification for that difference.
“(c) Subsections (a) and (b) do not apply to a contract if the contracting officer determines that the use of the price otherwise required by subsection (a) for such contract is not appropriate because of—
“(1) national security considerations; or
“(2) differences in quantities, quality, delivery, or other terms and conditions of the contract from commercial contract terms.”.
The amendment made by subsection (a) shall take effect at the
Effective date.
end of the 180-day period beginning on the date of the enactment of this Act.
Sec. 205. economic order quantities
Title III of the Act is further amended by inserting after section 303F (as added by section 204 of this Act) the following new section:
“Sec. 303G. “economic order quantities
(a) Each executive agency shall procure supplies in
such quantity as (A) will result in the total cost and unit cost most advantageous to the United States, where practicable, and (B) does not exceed the quantity reasonably expected to be required by the agency.
“(b) Each solicitation for a contract for supplies shall, if practicable, include a provision inviting each offeror responding to the solicitation to state an opinion on whether the quantity of the supplies proposed to be procured is economically advantageous to the United States and, if applicable, to recommend a quantity or quantities which would be more economically advantageous to the United States. Each such recommendation shall include a quotation of the total price and the unit price for supplies procured in each recommended quantity.”.
The amendment made by subsection (a) shall take effect at the
Effective date.
end of the 180-day period beginning on the date of the enactment of this Act.
Sec. 206. prohibition of contractors limiting subcontractor sales directly to the united states
Title III of the Act is further amended by inserting after section 303G (as added by section 205 of this Act) the following new section:
“Sec. 303H. “prohibition of contractors limiting subcontractor sales directly to the united states
(a) Each contract for the purchase of property or
services made by an executive agency shall provide that the contractor will not—
“(1) enter into any agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the United States of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or
“(2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales to the United States described in clause (1).
“(b) This section does not prohibit a contractor from asserting rights it otherwise has under law.”.
The amendment made by subsection (a) shall apply with respect to solicitations made more than 180 days after the date of the enactment of this Act.
Sec. 207. clerical amendment
The table of contents of the Act is amended by inserting after the item relating to section 303C the following new items:
TITLE III— AMENDMENTS TO THE OFFICE OF FEDERAL PROCUREMENT POLICY ACT
Sec. 301. technical data management
The Office of Federal Procurement Policy Act (hereafter in this title referred to as “the Act”) is amended by redesignating
Ante, p. 1198.
section 21 as section 23 and by inserting after section 20 the following new section:
“Sec. 21. “rights in technical data
(a) The legitimate proprietary interest of the United States and of a contractor in technical or other data shall be defined in regulations prescribed as part of the single system of Government-wide procurement regulations as defined in section 4(4) of this
Copyrights.
Act. Such regulations may not impair any right of the United States or of any contractor with respect to patents or copyrights or any other right in technical data otherwise established by law. Such regulations shall provide, with respect to executive agencies that are subject to the provisions of title III of the Federal Property and
Administrative Services Act of 1949, that the United States may not require persons who have developed products or processes offered or to be offered for sale to the public as a condition for the procurement of such products or processes by the United States, to provide to the United States technical data relating to the design, development, or manufacture of such products or processes (except for such data as may be necessary for the United States to operate and maintain the product or use the process if obtained by the United States as an element of performance under the contract).
“(b) (1) Except as otherwise expressly provided by Federal statute, the regulations prescribed pursuant to subsection (a) shall provide, with respect to executive agencies that are subject to the provisions of title III of the Federal Property and Administrative Services Act of 1949, that the United States shall have unlimited rights in technical data developed exclusively with Federal funds if delivery of such data—
“(A) was required as an element of performance under a contract; and
“(B) is needed to ensure the competitive acquisition of supplies or services that will be required in substantial quantities in the future.
“(2) Except as otherwise expressly provided by Federal statute, the regulations prescribed pursuant to subsection (a) shall provide, with respect to executive agencies that are subject to the provisions of title III of the Federal Property and Administrative Services Act of 1949, that the United States (and each agency thereof) shall have
an unrestricted, royalty-free right to use, or to have its contractors use, for governmental purposes (excluding publication outside the Government) technical data developed exclusively with Federal funds.
“(3) The requirements of paragraphs (1) and (2) shall be in addition to and not in lieu of any other rights that the United States may have pursuant to law.
“(c) The following factors shall be considered in prescribing regulations pursuant to subsection (a):
“(1) Whether the technical data was developed—
“(A) exclusively with Federal funds;
“(B) exclusively at private expense; or
“(C) in part with Federal funds and in part at private expense.
“(2) The statement of congressional policy and objectives in section 200 of title 35, the statement of purposes in section 2(b) of the Small Business Innovation Development Act of 1982 (Public Law 97–219; 15 U.S.C. 638 note), and the declaration of policy in section 2 of the Small Business Act (15 U.S.C. 631).
“(3) The interest of the United States in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture.
“(d) Regulations prescribed under subsection (a) shall require that
Regulations.
a contract for property or services entered into by an executive agency contain appropriate provisions relating to technical data, including provisions—
“(1) defining the respective rights of the United States and the contractor or subcontractor (at any tier) regarding any technical data to be delivered under the contract;
“(2) specifying the technical data, if any, to be delivered under the contract and delivery schedules for such delivery;
“(3) establishing or referencing procedures for determining the acceptability of technical data to be delivered under the contract;
“(4) establishing separate contract line items for the technical data, if any, to be delivered under the contract;
“(5) to the maximum practicable extent, identifying, in advance of delivery, technical data which is to be delivered with restrictions on the right of the United States to use such data;
“(6) requiring the contractor to revise any technical data delivered under the contract to reflect engineering design changes made during the performance of the contract and affecting the form, fit, and function of the items specified in the contract and to deliver such revised technical data to an agency within a time specified in the contract;
“(7) requiring the contractor to furnish written assurance at the time the technical data is delivered or is made available that the technical data is complete and accurate and satisfies the requirements of the contract concerning technical data;
“(8) establishing remedies to be available to the United States when technical data required to be delivered or made available under the contract is found to be incomplete or inadequate or to not satisfy the requirements of the contract concerning technical data; and
“(9) authorizing the head of the agency to withhold payments under the contract (or exercise such other remedies as the head of the agency considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data.”.
Section 2320(a) of title 10, United States Code, is amended by striking out “in regulations prescribed as part” and inserting in lieu thereof “in regulations of the Department of Defense prescribed as part”.
The amendment made by subsection (a) shall take effect on the date of enactment of this Act. The regulations required by such amendment shall be issued not later than July 1, 1985.
Within 60 days after the date the regulations required by the amendment made by subsection (a) are prescribed, the Secretary of Defense, the Administrator of General Services, and the Administrator of the National Aeronautics and Space Administration shall submit to Congress a joint report describing in detail how those regulations give consideration to the factors specified for consideration in that section.
Sec. 302. publication of proposed regulations
The Act is further amended by inserting after section 21 (as added by section 301 of this Act) the following new section:
“Sec. 22. “publication of proposed regulations
(a) Except as provided in subsection (d), no procurement policy, regulation, procedure, or form (including amendments or modifications thereto) relating to the expenditure of appropriated funds that has (1) a significant effect beyond the internal operating procedures of the agency issuing the procurement policy, regulation, procedure or form, or (2) a significant cost or administrative impact on contractors or offerors, may take effect until 30 days after the procurement policy, regulation, procedure, or form is published for public comment in the Federal Register pursuant to subsection (b).
“(b) Subject to subsection (c), the head of the agency shall cause to be published in the Federal Register a notice of the proposed procurement policy, regulation, procedure, or form and provide for a public comment period for receiving and considering the views of all interested parties on such proposal. The length of such comment period may not be less than 30 days.
“(c) Any notice of a proposed procurement policy, regulation, procedure, or form prepared for publication in the Federal Register shall include—
“(1) the text of the proposal or, if it is impracticable to publish the full text of the proposal, a summary of the proposal and a statement specifying the name, address, and telephone number of the officer or employee of the executive agency from whom the full text may be obtained; and
“(2) a request for interested parties to submit comments on the proposal and shall include the name and address of the officer or employee of the Government designated to receive such comments.
“(d) (1) The requirements of subsections (a) and (b) may be waived by the officer authorized to issue a procurement policy, regulation, procedure, or form if urgent and compelling circumstances make compliance with such requirements impracticable.
“(2) A procurement policy, regulation, procedure, or form with respect to which the requirements of subsections (a) and (b) are waived under paragraph (1) shall be effective on a temporary basis if—
“(A) a notice of such procurement policy, regulation, procedure, or form is published in the Federal Register and includes a statement that the procurement policy, regulation, procedure, or form is temporary; and
“(B) provision is made for a public comment period of 30 days beginning on the date on which the notice is published.
After considering the comments received, the head of the agency waiving the requirements of subsections (a) and (b) under paragraph (1) may issue the final procurement policy, regulation, procedure, or form.”.
The procedures required by the amendment made by subsection
Effective date.
(a) shall apply with respect to procurement policies, regulations, procedures, or forms that an agency issues in final form on or after the date which is 30 days after the date of enactment of this Act.
Section 2303a of title 10, United States Code, is repealed.
Ante, p. 2590.
The table of sections of chapter 137 of such title is amended by striking out the item pertaining to section 2303a.
Sec. 303. procurement notices
Section 18 of the Office of Federal Procurement Policy Act is amended to read as follows:
“Sec. 18. “procurement notice
(a) (1) Except as provided in subsection (c)—
Public information.
“(A) an executive agency intending to—
“(i) solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000; or
“(ii) place an order, expected to exceed $10,000, under a basic agreement, basic ordering agreement, or similar arrangement,
shall furnish for publication by the Secretary of Commerce a notice described in subsection (b); and
“(B) an executive agency awarding a contract for property or services for a price exceeding $25,000, or placing an order referred to in clause (A)(ii) exceeding $25,000, shall furnish for publication by the Secretary of Commerce a notice announcing the award or order if there is likely to be any subcontract under such contract or order.
“(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 required by paragraph (1)(A) to furnish a notice to the Secretary of Commerce, such executive agency may not—
“(A) issue the solicitation earlier than 15 days after the date on which the notice is published by the Secretary of Commerce; or
“(B) establish a deadline for the submission of all bids or proposals in response to the notice required by paragraph (1)(A) that—
“(i) in the case of an order under a basic agreement, basic ordering agreement, or similar arrangement, is earlier than the date 30 days after the date the notice required by paragraph (1)(A)(ii) is published;
“(ii) in the case of a solicitation for research and development, is earlier than the date 45 days after the date the notice required by paragraph (1)(A)(i) is published; or
“(iii) in any other case, is earlier than the date 30 days after the date the solicitation is issued.
“(b) Each notice of solicitation required by subsection (a)(1)(A) shall include—
“(1) an accurate description of the property or services to be contracted for, which description (A) shall not be unnecessarily restrictive of competition, and (B) shall include, as appropriate, the agency nomenclature, National Stock Number or other part number, and a brief description of the item’s form, fit, or function, physical dimensions, predominant material of manufacture, or similar information that will assist a prospective contractor to make an informed business judgment as to whether a copy of the solicitation should be requested;
“(2) provisions that—
“(A) state whether the technical data required to respond to the solicitation will not be furnished as part of such solicitation, and identify the source in the Government, if any, from which the technical data may be obtained; and
“(B) state whether an offeror, its product, or service must meet a qualification requirement in order to be eligible for award, and, if so, identify the office from which the qualification requirement may be obtained;
“(3) the name, business address, and telephone number of the contracting officer;
“(4) a statement that all responsible sources may submit a bid, proposal, or quotation (as appropriate) which shall be considered by the agency; and
“(5) in the case of a procurement using procedures other than competitive procedures, a statement of the reason justifying the use of such procedures and the identity of the intended source.
“(c) (1) A notice is not required under subsection (a)(1) if—
“(A) the notice would disclose the executive agency’s needs and the disclosure of such needs would compromise the national security;
“(B) the proposed procurement would result from acceptance of—
“(i) any unsolicited proposal that demonstrates a unique and innovative research concept and the publication of any notice of such unsolicited research proposal would disclose the originality of thought or innovativeness of the proposal or would disclose proprietary information associated with the proposal; or
“(ii) a proposal submitted under section 9 of the Small Business Act;
“(C) the procurement is made against an order placed under a requirements contract;
“(D) the procurement is made for perishable subsistence supplies; or
“(E) the procurement is for utility services, other than telecommunication
Utilities.
services, and only one source is available.
“(2) The requirements of subsection (a)(1)(A) do not apply to any procurement under conditions described in paragraph (2), (3), (4), (5), or (7) of section 303(c) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(c)) or paragraph (2), (3), (4), (5), or (7) of section 2304(c) of title 10, United States Code.
“(3) The requirements of subsection (a)(1)(A) shall not apply in the case of any procurement for which the head of the executive agency makes a determination in writing, after consultation with the Administrator for Federal Procurement Policy and the Administrator of the Small Business Administration, that it is not appropriate or reasonable to publish a notice before issuing a solicitation.
“(d) An executive agency shall make available to any business
Public information.
concern, or the authorized representative of such concern, the complete solicitation package for any ongoing procurement announced pursuant to a notice under subsection (e). An executive agency may require the payment of a fee, not exceeding the actual cost of duplication, for a copy of such package.”.
The amendment made by subsection (a) shall take effect with
Effective date.
Tennessee
Valley Authority.
respect to any solicitation issued after March 31, 1985.
The provisions of the amendment made by subsection (a) of this section shall apply to the Tennessee Valley Authority only with respect to procurements to be paid from appropriated funds.
TITLE IV— AMENDMENTS TO THE SMALL BUSINESS ACT
Sec. 401. certificate of competency
Section 8(b)(7)(C) of the Small Business Act (15 U.S.C. 637(b)(7)(C) is amended by adding at the end thereof the following: “Notwithstanding the first sentence of this subparagraph, the Administration may not establish an exemption from referral or notification or refuse to accept a referral or notification from a Government procurement officer made pursuant to subparagraph (A) or (B) of this paragraph, but nothing in this paragraph shall require the processing of an application for certification if the small business concern to which the referral pertains declines to have the application processed.”.
Sec. 402. small business subcontracting policy statements
Section 8(d)(1) of the Small Business Act (15 U.S.C. 637(d)(1)) is amended by striking out the period at the end thereof and inserting in lieu thereof the following: “, including contracts and subcontracts for subsystems, assemblies, components, and related services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals.”.
Section 8(d)(3)(A) of the Small Business Act (15 U.S.C. 637(d)(3)(A)) is amended by striking out the period at the end thereof and inserting in lieu thereof the following: “, including contracts and subcontracts for subsystems, assemblies, components, and
Disadvantaged persons.
related services for major systems. It is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals.”.
Sec. 403. breakout procurement center representatives
Section 15 of the Small Business Act (15 U.S.C. 644) is amended—
by redesignating subsection (1) as subsection (m); and
by inserting after subsection (k) the following new subsection:
“(l) (1) The Administration shall assign to each major procurement center a breakout procurement center representative with such assistance as may be appropriate. The breakout procurement center representative shall carry out the activities described in paragraph (2), and shall be an advocate for the breakout of items for procurement through full and open competition, whenever appropriate, while maintaining the integrity of the system in which such items are used, and an advocate for the use of full and open competition, whenever appropriate, for the procurement of supplies and services by such center. Any breakout procurement center representative assigned under this subsection shall be in addition to the representative referred to in subsection (k)(6).
“(2) In addition to carrying out the responsibilities assigned by the Administration, a breakout procurement center representative is authorized to—
“(A) attend any provisioning conference or similar evaluation session during which determinations are made as to whether requirements are to be procured through other than full and open competition and make recommendations with respect to such requirements to the members of such conference or session;
“(B) review, at any time, restrictions on competition previously imposed on items through acquisition method coding or similar procedures, and recommend to personnel of the appropriate activity the prompt reevaluation of such limitations;
“(C) review restrictions on competition arising out of restrictions on the rights of the United States in technical data, and, when appropriate, recommend that personnel of the appropriate activity initiate a review of the validity of such an asserted restriction;
“(D) obtain from any governmental source, and make available to personnel of the appropriate activity, unrestricted technical data necessary for the preparation of a competitive solicitation package for any item of supply or service previously procured noncompetitively due to the unavailability of such unrestricted technical data;
“(E) have access to the unclassified procurement records and other data of the procurement center;
“(F) receive unsolicited engineering proposals and, when appropriate (i) conduct a value analysis of such proposal to determine whether such proposal, if adopted, will result in lower costs to the United States without substantially impeding legitimate acquisition objectives and forward to personnel of the appropriate activity recommendations with respect to such proposal, or (ii) forward such proposals without analysis to personnel of the activity responsible for reviewing such proposals and who shall furnish the breakout procurement center representative with information regarding the disposition of any such proposal; and
“(G) review the systems that account for the acquisition and management of technical data within the procurement center to assure that such systems provide the maximum availability and access to data needed for the preparation of offers to sell to the United States those supplies to which such data pertain which potential offerors are entitled to receive.
“(3) A breakout procurement center representative is authorized to appeal a failure to act favorably on any recommendation made pursuant to paragraph (2). Such appeal shall be in writing, specifically reciting both the circumstances of the appeal and the basis of the recommendation. The appeal shall be decided by a person within the employ of the appropriate activity who is at least one supervisory level above the person who initially failed to act favorably on the recommendation. Such appeal shall be decided within 30
Effective date.
calendar days of its receipt.
“(4) The Administration shall assign and co-locate at least two small business technical advisers to each major procurement center in addition to such other advisers as may be authorized from time to time. The sole duties of such advisers shall be to assist the breakout procurement center representative for the center to which such advisers are assigned in carrying out the functions described in paragraph (2) and the representatives referred to in subsection (k)(6).
“(5) (A) The breakout procurement center representatives and technical advisers assigned pursuant to this subsection shall be—
“(i) full-time employees of the Administration; and
“(ii) fully qualified, technically trained, and familiar with the supplies and services procured by the major procurement center to which they are assigned.
“(B) In addition to the requirements of subparagraph (A), each breakout procurement center representative, and at least one technical adviser assigned to such representative, shall be an accredited engineer.
“(C) The Administration shall establish personnel positions for breakout procurement representatives and advisers assigned pursuant to this subsection, which are classified at a grade level of the General Schedule sufficient to attract and retain highly qualified personnel.
“(6) For purposes of this subsection, the term ‘major procurement center’ means a procurement center of the Department of Defense that awarded contracts for items other than commercial items totaling at least $150,000,000 in the preceding fiscal year, and such other procurement centers as designated by the Administrator.”.
The Administrator of the Small Business Administration and the Comptroller General of the United States shall jointly establish standards for measuring cost savings achieved through the efforts of breakout procurement center representatives and for measuring the extent to which competition has been increased as a
Report.
result of such efforts. Thereafter, the Administrator shall annually prepare and submit to the Congress a report setting forth—
the cost savings achieved during the year covered by such report through the efforts of breakout procurement center representatives;
an evaluation of the extent to which competition has been increased as a result of such efforts; and
such other information as the Administrator may deem appropriate.
Within 180 days following the submission of the second annual report to Congress by the Administrator, the Comptroller General shall report to the Congress an evaluation of the Administration’s adherence to the standards jointly established and the accuracy of the information the Administration has submitted to the Congress.
Sec. 404. procurement notices
Section 8 of the Small Business Act (15 U.S.C. 637) is amended by striking out subsection (e) and inserting in lieu thereof the following new subsections:
“(e) (1) Except as provided in subsection (g)—
“(A) an executive agency intending to—
“(i) solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000; or
“(ii) place an order, expected to exceed $10,000, under a basic agreement, basic ordering agreement, or similar arrangement,
shall furnish for publication by the Secretary of Commerce a notice described in subsection (b); and
“(B) an executive agency awarding a contract for property or services for a price exceeding $25,000, or placing an order referred to in clause (A)(ii) exceeding $25,000, shall furnish for publication by the Secretary of Commerce a notice announcing the award or order if there is likely to be any subcontract under such contract or order.
“(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 required by paragraph (1)(A) to furnish a notice to the Secretary of Commerce, such executive agency may not—
“(A) issue the solicitation earlier than 15 days after the date on which the notice is published by the Secretary of Commerce; or
“(B) establish a deadline for the submission of all bids or proposals in response to the notice required by paragraph (1)(A) that—
“(i) in the case of an order under a basic agreement, basic ordering agreement, or similar arrangement, is earlier than
Effective date.
the date 30 days after the date the notice required by paragraph (1)(A)(ii) is published;
“(ii) in the case of a solicitation for research and development,
Research and development.
is earlier than the date 45 days after the date the notice required by paragraph (1)(A)(i) is published; or
“(iii) in any other case, is earlier than the date 30 days after the date the solicitation is issued.
“(f) Each notice of solicitation required by subsection (e)(1)(A) shall include—
“(1) an accurate description of the property or services to be contracted for, which description (A) shall not be unnecessarily restrictive of competition, and (B) shall include, as appropriate, the agency nomenclature, National Stock Number or other part number, and a brief description of the item’s form, fit, or function, physical dimensions, predominant material of manufacture, or similar information that will assist a prospective contractor to make an informed business judgment as to whether a copy of the solicitation should be requested;
“(2) provisions that—
“(A) state whether the technical data required to respond to the solicitation will not be furnished as part of such solicitation, and identify the source in the Government, if any, from which the technical data may be obtained; and
“(B) state whether an offeror, its product, or service must meet a qualification requirement in order to be eligible for award, and, if so, identify the office from which a qualification requirement may be obtained;
“(3) the name, business address, and telephone number of the contracting officer;
“(4) a statement that all responsible sources may submit a bid, proposal, or quotation (as appropriate) which shall be considered by the agency; and
“(5) in the case of a procurement using procedures other than competitive procedures, a statement of the reason justifying the use of such procedures and the identity of the intended source.
“(g) (1) A notice is not required under subsection (a)(1) if—
“(A) the notice would disclose the executive agency’s needs and the disclosure of such needs would compromise the national security;
“(B) the proposed procurement would result from acceptance of—
“(i) any unsolicited proposal that demonstrates a unique and innovative research concept and the publication of any notice of such unsolicited research proposal would disclose the originality of thought or innovativeness of the proposal or would disclose proprietary information associated with the proposal; or
“(ii) a proposal submitted under section 9 of this Act;
“(C) the procurement is made against an order placed under a requirements contract;
“(D) the procurement is made for perishable subsistence supplies; or
“(E) the procurement is for utility services, other than telecommunication services, and only one source is available.
“(2) The requirements of subsection (a)(1)(A) do not apply to any procurement under conditions described in paragraph (2), (3), (4), (5), or (7) of section 303(c) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(c)) or paragraph (2), (3), (4), (5), or
Ante, p. 1175.
Ante, p. 1187.
(7) of section 2304(c) of title 10, United States Code.
“(3) The requirements of subsection (a)(1)(A) shall not apply in the case of any procurement for which the head of the executive agency makes a determination in writing, after consultation with the Administrator for Federal Procurement Policy and the Administrator of the Small Business Administration, that it is not appropriate or reasonable to publish a notice before issuing a solicitation.
“(h) (1) An executive agency may not award a contract using procedures other than competitive procedures unless—
“(A) except as provided in paragraph (2), a written justification for the use of such procedures has been approved—
“(i) in the case of a contract for an amount exceeding $100,000 (but equal to or less than $1,000,000), by the advocate for competition for the procuring activity (without further delegation);
“(ii) in the case of a contract for an amount exceeding $1,000,000 (but equal to or less than $10,000,000), by the head of the procuring activity or a delegate who, if a member of the Armed Forces, is a general or flag officer, or, if a civilian, is serving in a position in grade GS–16 or above under the General Schedule (or in a comparable or higher position under another schedule); or
“(iii) in the case of a contract for an amount exceeding $10,000,000, by the senior procurement executive of the agency designated pursuant to section 16(3) of the Office of
Federal Procurement Policy Act (41 U.S.C. 414(3)) (without further delegation); and
“(B) all other requirements applicable to the use of such procedures under title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) or chapter 137 of title 10, United States Code, as appropriate, have been satisfied.
“(2) The same exceptions as are provided in section 303(f)(2) of the Federal Property and Administration Services Act of 1949 (41 U.S.C. 253(f)(2)) or section 2304(f)(2) of title 10, United States Code, shall apply with respect to the requirements of paragraph (1)(A) of this subsection in the same manner as such exceptions apply to the requirements of section 303(f)(1) of such Act or section 2304(f)(1) of such title, as appropriate.
“(i) An executive agency shall make available to any business concern, or the authorized representative of such concern, the complete solicitation package for any ongoing procurement announced pursuant to a notice under subsection (e). An executive agency may require the payment of a fee, not exceeding the actual cost of duplication, for a copy of such package.
“(j) For purposes of this section, the term ‘executive agency’ has the meaning provided such term in section 4(1) of the Office of
Ante, p. 1195.
Effective date.
Tennessee Valley Authority.
Federal Procurement Policy Act (41 U.S.C. 403(1)).”.
The amendment made by subsection (a) shall take effect with respect to any solicitation for bids or proposals issued after March 31, 1985.
The provisions of the amendment made by subsection (a) of this section shall apply to the Tennessee Valley Authority only with respect to procurements to be paid from appropriated funds.
TITLE V— OTHER PROCUREMENT PROVISIONS
Sec. 501. regulations on overhead
Not later than 180 days after the date of enactment of this Act the single system of Government-wide procurement regulations (as defined in section 4(4)) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(4)) shall be revised to include or amend, as
Ante, p. 1195.
appropriate, provisions relating to the manner in which each executive agency (as defined in section 4(1) of such Act (41 U.S.C. 403(1)) may negotiate prices for supplies to be obtained through the use of other than competitive procedures, as defined in section 4(b) of such Act (41 U.S.C. 403(b)). Such revision shall specify the incurred overhead a contractor may appropriately allocate to such supplies, and shall require the contractor to identify those supplies which it did not manufacture or to which it did not contribute significant value. Nothing in this subsection shall require the submission of cost or pricing data not otherwise required by law.
Sec. 502. personnel evaluations
The head of each executive agency that is subject to the
Government organization and employees.
provisions of title III of the Federal Property and Administrative Services Act of 1949 shall ensure, with respect to the employees of that agency whose primary duties and responsibilities pertain to the award of contracts subject to the provisions of this Act, that the performance appraisal system applicable to such employees affords appropriate recognition to, among other factors, efforts—
to increase competition and achieve cost savings through the elimination of procedures that unnecessarily inhibit full and open competition;
to further the purposes of the Small Business and Federal Procurement Competition Enhancement Act of 1984 and the Defense Procurement Reform Act of 1984; and
to further such other objectives and purposes of the Federal acquisition system as may be authorized by law.
Sec. 503. report on prime contractors qualifying additional sources
Not later than July 1, 1985, the Administrator of the Office of Federal Procurement Policy shall submit to the Congress a report on the desirability and feasibility of various methods that may be used to qualify competitive sources for subsystems, assemblies, and components acquired as part of a major system established by an agency pursuant to Office of Management and Budget (OMB) Circular A–109 entitled “Major Systems Acquisitions” and likely to be reprocured in substantial quantities during the system’s service life. Such report shall discuss the desirability and feasibility of a contractual requirement that, in those situations where a prime contractor qualifies its subcontractors and suppliers, the prime contractor be required to—
qualify at least two sources for each major subsystem, assembly, or component during the term of the contract; or
furnish to the United States as a deliverable item under the contract, the qualification standards and processes employed by the prime contractor, so as to permit the United States to qualify additional sources for future competitive procurements.
Sec. 504. technical amendments to competition in contracting act of 1984
Section 303(b) of the Federal Property and Administration Services Act of 1949 (41 U.S.C. 253) is amended by striking out paragraph (2) and inserting in lieu thereof the following:
“(2) An executive agency may provide for the procurement of property or services covered by this section using competitive procedures, but excluding other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 639; 644).
“(3) A contract awarded pursuant to the competitive procedures referred to in paragraphs (1) and (2) shall not be subject to the justification and approval required by subsection (f)(1).”.
Section 303(f) of such Act is amended by striking out the last sentence of paragraph (2) and by inserting in lieu thereof the following:
“The justification and approval required by paragraph (1) is not required in the case of a procurement permitted by subsection (c)(7) or in the case of a procurement conducted under—
“(A) the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the Wagner–O’Day Act; or
“(B) the authority of section 8(a) of the Small Business Act (15 U.S.C. 637).”.
Section 309(b) of such Act is amended—
by striking out the period at the end of paragraph (3) and by inserting in lieu thereof a semicolon; and
by adding at the end thereof the following new paragraphs:
“(4) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for such procurements are permitted to compete; and
“(5) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of the Small Business Act (15 U.S.C. 638).”.
Section 309(c) of such Act is amended by striking out “and ‘responsible source’ have” and inserting in lieu thereof “, ‘responsible source’, ‘technical data’, ‘major system’, ‘item’, ‘item of supply’, and ‘supplies’ have”.
Section 2304(b) of title 10, United States Code, is amended by striking out paragraph (2) and inserting in lieu thereof the following:
“(2) An executive agency may provide for the procurement of property or services covered by this section using competitive procedures, but excluding other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 639; 644).
“(3) A contract awarded pursuant to the competitive procedures referred to in paragraphs (1) and (2) shall not be subject to the justification and approval required by subsection (f)(1)”.
Section 2304(f) of such title is amended by striking out the last sentence of paragraph (2) and by inserting in lieu thereof the following:
“The justification and approval required by paragraph (1) is not required in the case of a procurement permitted by subsection (c)(7) or in the case of a procurement conducted under—
“(A) the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the Wagner–O’Day Act; or
“(B) the authority of section 8(a) of the Small Business Act (15 U.S.C. 637).”.
Section 2302(2) of such title is amended—
by striking out “and” at the end of subparagraph (B);
Ante, p. 1186.
by striking out the period at the end of paragraph (C) and by inserting in lieu thereof a semicolon; and
by adding at the end thereof the following new subparagraphs:
“(D) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for such procurements are permitted to compete; and
“(E) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of the Small Business Act (15 U.S.C. 638).”.
Sec. 505. repeal
Section 2311 of title 10, United States Code (as amended by section 1214 of the Defense Procurement Reform Act of 1984), is amended—
by striking out “(a)” at the beginning of subsection (a); and
by striking out subsection (b).
Approved October 30, 1984.