S. 680 (110th): Accountability in Government Contracting Act of 2007
110th Congress, 2007–2009. Text as of Nov 07, 2007 (Passed the Senate (Engrossed)).
Status & Summary | PDF | Source: GPO
S 680 ES
To ensure proper oversight and accountability in Federal contracting, 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.
This Act may be cited as the `Accountability in Government Contracting Act of 2007'.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
Sec. 3. Definitions.
TITLE I--ACQUISITION WORKFORCE
Sec. 101. Federal acquisition workforce.
TITLE II--COMPETITION AND ACCOUNTABILITY
Sec. 201. Requirement for purchase of property and services pursuant to multiple award contracts.
Sec. 202. Statement of work requirements for certain task or delivery orders.
Sec. 203. Protests of task and delivery orders.
Sec. 204. Publication of justification and approval documents.
Sec. 205. Limitation on length of certain noncompetitive contracts.
Sec. 206. Prohibition on award of certain large task or delivery order contracts for services.
Sec. 207. Guidance on use of tiered evaluations of offers for contracts and task orders under contracts.
Sec. 208. Guidance on use of cost-reimbursement contracts.
Sec. 209. Preventing conflicts of interest.
Sec. 210. Linking of award and incentive fees to acquisition outcomes.
TITLE III--ACCOUNTABILITY AND ADMINISTRATION
Sec. 301. Definitizing of letter contracts.
Sec. 302. Preventing abuse of interagency contracts and assisted acquisition services.
Sec. 303. Purchase card waste elimination.
Sec. 304. Lead systems integrators.
Sec. 305. Limitations on tiering of subcontractors.
Sec. 306. Responsibility of contractors that are serious threats to national security.
Sec. 307. Required certification of program managers for Department of Homeland Security level one programs.
Sec. 308. Elimination of one-year limitation on interest due on late payments to contractors.
Sec. 309. Ensuring that Federal employees perform inherently governmental work.
Sec. 310. Report on Acquisition Advisory Panel report implementation.
Sec. 311. Report by the Government Accountability Office.
Sec. 312. Mapping and surveying services.
Sec. 313. Timely and accurate transmission of information included in Federal Procurement Data System.
Sec. 314. Use of existing funds for regulations and reports.
SEC. 3. DEFINITIONS.
In this Act:
(1) Except as otherwise provided, the term `executive agency' has the meaning given such term in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403).
(2) The term `assisted acquisition' means a procedure by which an executive agency needing supplies or services (the requesting agency) obtains them from another executive agency (the servicing agency). The term includes acquisitions under section 1535 of title 31, United States Code (commonly referred to as the `Economy Act'), title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.), the Clinger-Cohen Act of 1996 (division E of Public Law 104-106), and the Government Management Reform Act of 1994 (Public Law 103-356; 108 Stat. 3410).
(3) The term `micro-purchase' means a purchase in an amount not in excess of the micro-purchase threshold, as defined in section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428).
(4) The term `multi-agency contract' means any contract available for use by more than 1 executive agency.
TITLE I--ACQUISITION WORKFORCE
SEC. 101. FEDERAL ACQUISITION WORKFORCE.
(a) Associate Administrator for Acquisition Workforce Programs- Section 6 of the Office of Federal Procurement Policy Act (41 U.S.C. 405) is amended by adding at the end the following new subsection:
`(l) The Administrator shall designate a member of the Senior Executive Service as the Associate Administrator for Workforce Programs. The Associate Administrator for Workforce Programs shall be located in the Federal Acquisition Institute, or its successor. The Associate Administrator shall be responsible for--
`(1) supervising the acquisition workforce training fund established under section 37(h)(3);
`(2) administering the government-wide acquisition intern program established under section 43;
`(3) developing, in coordination with Chief Acquisition Officers and Chief Human Capital Officers, a human capital strategic plan for the acquisition workforce of the Federal Government;
`(4) reviewing and providing input to individual agency acquisition workforce succession plans;
`(5) recommending to the Administrator and other senior government officials appropriate programs, policies, and practices to increase the quantity and quality of the Federal acquisition workforce; and
`(6) carrying out such other functions as the Administrator may assign.'.
(b) Government-Wide Acquisition Intern Program- The Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) is amended by adding at the end the following new section:
`SEC. 43. GOVERNMENT-WIDE ACQUISITION INTERN PROGRAM.
`(a) Establishment of Program- The Administrator shall establish a government-wide Acquisition Intern Program to strengthen the Federal acquisition workforce to carry out its key missions through the Federal procurement process. The Administrator shall have a goal of involving not less than 200 college graduates per year in the Acquisition Intern Program.
`(b) Administration of Programs- The Associate Administrator for Acquisition Workforce Programs designated under section 6(l) shall be responsible for the management, oversight, and administration of the Acquisition Intern Program and shall give strong consideration to utilizing existing similar programs and seek to build upon those programs instead of replacing them or creating new programs.
`(c) Terms of Acquisition Intern Program-
`(1) BUSINESS-RELATED COURSE WORK REQUIREMENT-
`(A) IN GENERAL- Each participant in the Acquisition Intern Program shall have completed 24 credit hours of business-related college course work by not later than 3 years after admission into the program.
`(B) CERTIFICATION CRITERIA- The Administrator shall establish criteria for certifying the completion of the course work requirement under subparagraph (A).
`(2) STRUCTURE OF PROGRAM- The Acquisition Intern Program shall consist of one year of preparatory education and training in Federal procurement followed by 3 years of on-the-job training and development focused on Federal procurement but including rotational assignments in other functional areas.
`(3) EMPLOYMENT STATUS OF INTERNS- Interns participating in the Acquisition Intern Program shall be considered probationary employees without civil service protections under chapter 33 of title 5, United States Code. In administering any personnel ceiling applicable to an executive agency or a unit of an executive agency, an individual assigned as an intern under the program shall not be counted.
`(4) AGENCY MANAGEMENT OF PROGRAM- The Chief Acquisition Officer of each executive agency, in consultation with the Chief Human Capital Officer of such agency, shall establish a central intern management function in the agency to supervise and manage interns participating in the Acquisition Intern Program.'.
(c) Contingency Contracting Corps- The Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.), as amended by subsection (b), is further amended by adding at the end the following new section:
`SEC. 44. CONTINGENCY CONTRACTING CORPS.
`(a) Establishment- The Administrator shall establish a government-wide Contingency Contracting Corps (in this section, referred to as the `Corps'). The members of the Corps shall be available for deployment in responding to disasters, natural and man-made, and contingency operations both within and outside the continental United States.
`(b) Membership- Membership in the Corps shall be voluntary and open to all Federal employees, including uniformed members of the Armed Services, who are currently members of the Federal acquisition workforce.
`(c) Education and Training- The Administrator may establish additional educational and training requirements, and may pay for these additional requirements from funds available in the acquisition workforce training fund.
`(d) Clothing and Equipment- The Administrator shall identify any necessary clothing and equipment requirements, and may pay for this clothing and equipment from funds available in the acquisition workforce training fund.
`(e) Salary- The salaries for members of the Corps shall be paid by their parent agencies out of existing appropriations.
`(f) Authority To Deploy the Corps- The Administrator, or the Administrator's designee, shall have the authority to determine when members of the Corps shall be deployed, in consultation with the head of the agency or agencies employing the members to be deployed.
`(g) Annual Report-
`(1) IN GENERAL- The Administrator shall provide to the Committee on Homeland Security and Governmental Affairs and the Committee on Armed Services of the Senate and the Committee on Oversight and Government Reform and the Committee on Armed Services of the House of Representatives an annual report on the status of the Contingency Contracting Corps.
`(2) CONTENT- At a minimum, each report under paragraph (1) shall include the number of members of the Contingency Contracting Corps, the fully burdened cost of operating the program, the number of deployments of members of the program, and the performance of members of the program in deployment.'.
(d) Acquisition and Contracting Training Programs- The head of each executive agency, after consultation with the Associate Administrator for Acquisition Workforce Programs, shall establish and operate acquisition and contracting training programs. Such programs shall--
(1) have curricula covering a broad range of acquisition and contracting disciplines corresponding to the specific acquisition and contracting needs of the agency involved;
(2) be developed and applied according to rigorous standards; and
(3) be designed to maximize efficiency, through the use of self-paced courses, online courses, on-the-job training, and the use of remote instructors, wherever such features can be applied without reducing the effectiveness of the training or negatively impacting academic standards.
(e) Government-Wide Policies and Evaluation- The Administrator shall issue policies to promote the development of performance standards for training and uniform implementation of this subsection by executive agencies, with due regard for differences in program requirements among agencies that may be appropriate and warranted in view of the agency mission. The Administrator shall evaluate the implementation of the provisions of subsection (d) by executive agencies.
(f) Chief Acquisition Officer Authorities and Responsibilities- Subject to the authority, direction, and control of the head of an executive agency, the Chief Acquisition Officer of such agency shall carry out all powers, functions, and duties of the head of the agency with respect to implementation of subsection (d). The Chief Acquisition Officer shall ensure that the policies of the agency head established in accordance with such subsection are implemented throughout the agency.
(g) Acquisition and Contracting Training Reporting- The Administrator shall ensure that the heads of executive agencies collect and maintain standardized information on the acquisition and contracting workforce related to the implementation of subsection (d).
(h) Acquisition Workforce Human Capital Succession Plan-
(1) IN GENERAL- Not later than 1 year after the date of the enactment of this Act, each Chief Acquisition Officer for an executive agency appointed pursuant to section 16 of the Office of Federal Procurement Policy Act (41 U.S.C. 414) shall develop, in consultation with the Chief Human Capital Officer for the agency and the Associate Administrator for Acquisition Workforce Programs, a succession plan consistent with the agency's strategic human capital plan for the recruitment, development, and retention of the agency's acquisition workforce, with a particular focus on warranted contracting officers and program managers of the agency.
(2) CONTENT OF PLAN- The acquisition workforce succession plan shall address--
(A) recruitment goals for personnel from procurement intern programs;
(B) the agency's acquisition workforce training needs;
(C) actions to retain high performing acquisition professionals who possess critical relevant skills;
(D) recruitment goals for personnel from the Federal Career Intern Program; and
(E) recruitment goals for personnel from the Presidential Management Fellows Program.
(i) Authorization of Appropriations for Acquisition Programs-
(1) AUTHORIZATION- There is authorized to be appropriated $5,000,000 for each of fiscal years 2008 and 2009 for the acquisition workforce training fund.
(2) USE OF FUNDS- Amounts appropriated pursuant to the authorization of appropriations in paragraph (1) shall be used for--
(A) the establishment salary of the Associate Administrator for Acquisition Workforce Training Programs;
(B) the establishment and operations of the Acquisition Intern Program and the Contingency Contracting Corps;
(C) the costs of administering the acquisition workforce training fund, not to exceed 10 percent of the total funds available in the Fund; and
(D) the equipping, education, and training of participants in the Acquisition Intern Program, personnel recruited from the Presidential Management Fellowship Program, personnel recruited from the Federal Career Intern Program, and Contingency Contracting Corps Program.
(3) AVAILABILITY- Amounts appropriated pursuant to the authorization of appropriations under paragraph (1) shall remain available until expended.
(j) Elimination of Sunset Provision for Acquisition Workforce Training Fund- Section 37(h)(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 433(h)(3)) is amended by striking subparagraph (H).
(k) Training in the Acquisition of Architect and Engineering Services- The Administrator for Federal Procurement Policy shall ensure that a sufficient number of Federal employees are trained in the acquisition of architect and engineering services.
(l) Extension of Direct Hiring Authority- Section 1413(b) of the Services Acquisition Reform Act of 2003 (title XIV of Public Law 108-136) is amended by striking `September 30, 2007' and inserting `September 30, 2010'.
(m) Qualifications of Chief Acquisition Officers- Section 16(a) of the Office of Federal Procurement Policy Act (41 U.S.C. 414) is amended by adding at the end the following new paragraph:
`(2) Chief Acquisition Officers shall be appointed from among persons who have an extensive management background.'.
(n) Utilization of Recruitment and Retention Authorities- The Administrator for Federal Procurement Policy, in coordination with the Director of the Office of Personnel Management, shall encourage agencies to utilize existing authorities, including direct hire authority and tuition assistance programs, to recruit and retain acquisition personnel and consider recruiting acquisition personnel who may be retiring from the private sector, consistent with existing laws and regulations.
TITLE II--COMPETITION AND ACCOUNTABILITY
SEC. 201. REQUIREMENT FOR PURCHASE OF PROPERTY AND SERVICES PURSUANT TO MULTIPLE AWARD CONTRACTS.
(a) Regulations Required- Not later than 180 days after the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall promulgate in the Federal Acquisition Regulation, regulations requiring competition in the purchase of property and services by all executive agencies pursuant to multiple award contracts.
(b) Content of Regulations-
(1) IN GENERAL- The regulations required by subsection (a) shall provide, at a minimum, that each individual purchase of property or services in excess of the simplified acquisition threshold that is made under a multiple award contract shall be made on a competitive basis unless a contracting officer--
(A) waives the requirement on the basis of a determination that--
(i) one of the circumstances described in paragraphs (1) through (4) of section 303J(b) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253j(b)) or section 2304c(b) of title 10, United States Code, applies to such individual purchase; or
(ii) a law expressly authorizes or requires that the purchase be made from a specified source; and
(B) justifies the determination in writing.
(2) COMPETITIVE BASIS PROCEDURES- For purposes of this subsection, an individual purchase of property or services is made on a competitive basis only if it is made pursuant to procedures that--
(A) except as provided in paragraph (3), require fair notice of the intent to make that purchase (including a description of the work to be performed and the basis on which the selection will be made) to be provided to all contractors offering such property or services under the multiple award contract; and
(B) afford all contractors responding to the notice a fair opportunity to make an offer and have that offer fairly considered by the official making the purchase.
(3) EXCEPTION TO NOTICE REQUIREMENT-
(A) IN GENERAL- Notwithstanding paragraph (2)(A), and subject to subparagraph (B), notice may be provided to fewer than all contractors offering such property or services under a multiple award contract as described in subsection (d)(2)(A) if notice is provided to as many contractors as practicable.
(B) LIMITATION ON EXCEPTION- A purchase may not be made pursuant to a notice that is provided to fewer than all contractors under subparagraph (A) unless--
(i) offers were received from at least 3 qualified contractors; or
(ii) a contracting officer of the executive agency determines in writing that no additional qualified contractors were able to be identified despite reasonable efforts to do so.
(c) Notice Requirements Related to Sole Source Task or Delivery Orders- The Administrator for Federal Procurement Policy shall promulgate regulations in the Federal Acquisition Regulation requiring the head of each executive agency--
(1) to publish on FedBizOpps notice of all sole source task or delivery orders in excess of the simplified acquisition threshold (as defined by section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)) that are placed against multiple award contracts or multiple award blanket purchase agreements not later than 10 days after such orders are placed, except in the event of extraordinary circumstances or classified orders; and
(2) to publish on the Internet website of the executive agency and on FedBizOpps the justification and approval documents related to sole source task or delivery orders placed against multiple award contracts or multiple award blanket purchase agreements not later than 14 days after such orders are placed, except in the event of extraordinary circumstances or classified orders.
(d) Definitions- In this section:
(1) The term `individual purchase' means a task order, delivery order, or other purchase.
(2) The term `multiple award contract' means--
(A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 2302(2)(C) of title 10, United States Code;
(B) a multiple award task order contract that is entered into under the authority of sections 2304a through 2304d of title 10, United States Code, or sections 303H through 303K of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253h through 253k); and
(C) any other indefinite delivery, indefinite quantity contract that is entered into by the head of an executive agency with 2 or more sources pursuant to the same solicitation.
(e) Applicability- The regulations promulgated by the Administrator for Federal Procurement Policy pursuant to subsection (a) shall take effect not later than 180 days after the date of the enactment of this Act and shall apply to all individual purchases of property or services that are made under multiple award contracts on or after such effective date, without regard to whether the multiple award contracts were entered into before, on, or after such effective date.
SEC. 202. STATEMENT OF WORK REQUIREMENTS FOR CERTAIN TASK OR DELIVERY ORDERS.
(a) Civilian Contracts- Section 303J(c) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253j(c)) is amended to read as follows:
`(c) Statement of Work and Selection Basis-
`(1) IN GENERAL- A task or delivery order shall include a statement of work that clearly specifies all tasks to be performed or property to be delivered under the order.
`(2) TASK OR DELIVERY ORDERS IN EXCESS OF THE THRESHOLD FOR USE OF SIMPLIFIED PROCEDURES FOR COMMERCIAL ITEMS- The statement of work for a task or delivery order in excess of the threshold for use of simplified procedures for commercial items under a task or delivery order contract shall be made available to each contractor awarded such contract and shall--
`(A) include a clear statement of the executive agency's requirements;
`(B) permit a reasonable response period;
`(C) disclose the significant factors and sub-factors that the executive agency expects to consider in evaluating proposals, including cost, price, past performance, and the relative importance of those and other factors;
`(D) in the case of an award that is to be made on a best value basis, include a written statement documenting the basis for the award and the relative importance of quality, past performance, and price or cost factors; and
`(E) provide an opportunity for a post-award debriefing consistent with the requirements of section 303B(e).'.
(b) Defense Contracts- Section 2304c(c) of title 10, United States Code, is amended to read as follows:
`(c) Statement of Work and Selection Basis-
`(1) IN GENERAL- A task or delivery order shall include a statement of work that clearly specifies all tasks to be performed or property to be delivered under the order.
`(2) TASK OR DELIVERY ORDERS IN EXCESS OF THE THRESHOLD FOR USE OF SIMPLIFIED PROCEDURES FOR COMMERCIAL ITEMS- The statement of work for a task or delivery order in excess of the threshold for use of simplified procedures for commercial items under a task or delivery order contract shall be made available to each contractor awarded such contract and shall--
`(A) include a clear statement of the agency's requirements;
`(B) permit a reasonable response period;
`(C) disclose the significant factors and sub-factors that the agency expects to consider in evaluating proposals, including cost, price, past performance, and the relative importance of those and other factors;
`(D) in the case of an award that is to be made on a best value basis, include a written statement documenting the basis for the award and the relative importance of quality, past performance, and price or cost factors; and
`(E) provide an opportunity for a post-award debriefing consistent with the requirements of section 2305(b)(5) of this title.'.
SEC. 203. PROTESTS OF TASK AND DELIVERY ORDERS.
(a) Civilian Agency Contracts- Section 303J(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253j(d)) is amended to read as follows:
`(d) Protests- A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for--
`(1) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
`(2) a protest by an interested party of an order valued at greater than the threshold established pursuant to section 203(c) of the Accountability in Government Contracting Act of 2007.'.
(b) Defense Contracts- Section 2304c(d) of title 10, United States Code is amended to read as follows:
`(d) Protests- A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for--
`(1) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
`(2) a protest by an interested party of an order valued at greater than the threshold established pursuant to section 203(c) of the Accountability in Government Contracting Act of 2007.'.
(c) Establishment of Threshold- The Administrator for Federal Procurement Policy shall promulgate a rule in the Federal Acquisition Regulation establishing a threshold for protests under section 303J(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253j(d)) and section 2304c(d) of title 10, United States Code, as amended by subsections (a) and (b), respectively. The threshold shall be $5,000,000 unless the Administrator determines that the threshold is unduly burdensome on executive agencies, in which case the Administrator may increase the threshold, but in no case shall the threshold exceed $25,000,000. The threshold shall be $5,000,000 until a final rule is promulgated in accordance with such determination.
SEC. 204. PUBLICATION OF JUSTIFICATION AND APPROVAL DOCUMENTS.
(a) Civilian Contracts- Section 303(f)(1) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(1)) is amended--
(1) in subparagraph (B)(iii), by striking `; and' and inserting a semicolon;
(2) in subparagraph (C), by striking the period at the end and inserting `; and'; and
(3) by adding at the end the following new subparagraph:
`(D) the justification and approval documents are made publicly available on the Internet website of the agency and FedBizOpps.'.
(b) Defense Contracts- Section 2304(f) of title 10, United States Code, is amended--
(1) in subparagraph (B)(iii), by striking `; and' and inserting a semicolon;
(2) in subparagraph (C), by striking the period at the end and inserting `; and'; and
(3) by adding at the end the following new subparagraph:
`(D) the justification and approval documents are made publicly available on the Internet website of the agency and FedBizOpps.'.
SEC. 205. LIMITATION ON LENGTH OF CERTAIN NONCOMPETITIVE CONTRACTS.
(a) Civilian Agency Contracts- Section 303(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(d)) is amended by adding at the end the following new paragraph:
`(3)(A) The contract period of a contract described in subparagraph (B) that is entered into by an executive agency pursuant to the authority provided under subsection (c)(2)--
`(i) may not exceed the time necessary--
`(I) to meet the unusual and compelling requirements of the work to be performed under the contract; and
`(II) for the executive agency to enter into another contract for the required goods or services through the use of competitive procedures; and
`(ii) may not exceed 270 days unless the head of the executive agency entering into such contract determines that exceptional circumstances apply.
`(B) This paragraph applies to any contract in an amount greater than the simplified acquisition threshold (as defined by section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)).'.
(b) Defense Contracts- Section 2304(d) of title 10, United States Code, is amended by adding at the end the following new paragraph:
`(3)(A) The contract period of a contract described in subparagraph (B) that is entered into by an agency pursuant to the authority provided under subsection (c)(2)--
`(i) may not exceed the time necessary--
`(I) to meet the unusual and compelling requirements of the work to be performed under the contract; and
`(II) for the agency to enter into another contract for the required goods or services through the use of competitive procedures; and
`(ii) may not exceed 270 days unless the head of the agency entering into such contract determines that exceptional circumstances apply.
`(B) This paragraph applies to any contract in an amount greater than the simplified acquisition threshold (as defined by section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)).'.
SEC. 206. PROHIBITION ON AWARD OF CERTAIN LARGE TASK OR DELIVERY ORDER CONTRACTS FOR SERVICES.
(a) Civilian Agency Contracts- Section 303H(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253h(d)) is amended by adding at the end the following new paragraph:
`(4)(A) No task or delivery order contract for services in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single contractor unless the head of the executive agency determines in writing that--
`(i) because of the size, scope, or method of performance of the requirement, it would not be practical to award multiple task or delivery order contracts;
`(ii) the task orders expected under the contract are so integrally related that only a single contractor can reasonably perform the work; or
`(iii) for any other reason, it is necessary in the public interest to award the contract to a single contractor.
`(B) The head of the executive agency shall notify Congress within 30 days of any determination under subparagraph (A)(iii).
`(C) The head of the executive agency shall post the justification and approval documents related to a determination under subparagraph (A) on the Internet website of the agency and on the Federal Business Opportunities (FedBizOpps) Internet website.'.
(b) Defense Contracts- Section 2304a(d) of title 10, United States Code, is amended by adding at the end the following new paragraph:
`(4)(A) No task or delivery order contract for services in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single contractor unless the head of the agency determines in writing that--
`(i) because of the size, scope, or method of performance of the requirement, it would not be practical to award multiple task or delivery order contracts;
`(ii) the task orders expected under the contract are so integrally related that only a single contractor can reasonably perform the work; or
`(iii) for any other reason, it is necessary in the public interest to award the contract to a single contractor.
`(B) The head of the agency shall notify Congress within 30 days of any determination under subparagraph (A)(iii).
`(C) The head of the agency shall post the justification and approval documents related to a determination under subparagraph (A) on the Internet website of the agency and on the Federal Business Opportunities (FedBizOpps) Internet website.'.
SEC. 207. GUIDANCE ON USE OF TIERED EVALUATIONS OF OFFERS FOR CONTRACTS AND TASK ORDERS UNDER CONTRACTS.
(a) Guidance Required- The Administrator for Federal Procurement Policy shall prescribe guidance for executive agencies on the use of tiered evaluations of offers for contracts and for task or delivery orders under contracts. In prescribing such guidance, the Administrator shall give full consideration to the guidance prescribed by the Secretary of Defense under section 816 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163; 10 U.S.C. 2305).
(b) Elements- The guidance prescribed under subsection (a) shall include a prohibition on the initiation by a contracting officer of a tiered evaluation of an offer for a contract or for a task or delivery order under a contract unless the contracting officer--
(1) has conducted market research in accordance with part 10 of the Federal Acquisition Regulation in order to determine whether or not a sufficient number of qualified small businesses are available to justify limiting competition for the award of such contract or task or delivery order under applicable law and regulations;
(2) is unable, after conducting market research under paragraph (1), to make the determination described in that paragraph; and
(3) includes in the contract file a written explanation of why such contracting officer was unable to make such determination.
SEC. 208. GUIDANCE ON USE OF COST-REIMBURSEMENT CONTRACTS.
(a) In General- Not later than 180 days after the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall promulgate in the Federal Acquisition Regulation, regulations outlining the proper use of cost-reimbursement contracts.
(b) Content- The regulations promulgated under subsection (a) shall include at minimum guidance regarding--
(1) when and under what circumstances cost reimbursement contracts are appropriate;
(2) the acquisition plan findings necessary to support a decision to use cost reimbursement contracts; and
(3) the acquisition workforce resources necessary to award and manage cost reimbursement contracts.
(c) Inspector General Review- The Inspector General for each executive agency shall develop and submit as part of its annual audit plan a review of the use of cost reimbursement contracts.
SEC. 209. PREVENTING CONFLICTS OF INTEREST.
(a) Organizational Conflicts of Interest- The Administrator for Federal Procurement Policy shall create new, uniform, government-wide policies aimed at preventing and mitigating organizational conflicts of interest in Federal contracting, including--
(1) considering development of a standard organizational conflict of interest clause, or a set of standard organizational conflict of interest clauses, for inclusion in solicitations and contracts that set forth the contractor's responsibilities with respect to its employees, subcontractors, partners, and any other affiliated organizations or individuals;
(2) addressing conflicts that may arise in the context of developing requirements and statements of work, the selection process, and contract administration;
(3) ensuring that adequate organizational conflict of interest safeguards are enacted in situations in which contractors are employed by the Federal Government to oversee other contractors or are hired to assist in the acquisition process;
(4) ensuring that any policies or clauses developed address conflicts of interest that may arise from financial interests, unfair competitive advantages, and impaired objectivity; and
(5) maintaining a repository of best practices relating to the prevention of organizational conflicts of interest.
(b) Personal Conflicts of Interest- The Administrator for Federal Procurement Policy shall create new, uniform, government-wide policies aimed at preventing personal conflicts of interest by contractor employees in Federal contracting, including--
(1) determining whether greater disclosure, specific prohibitions, or reliance on specified principles will accomplish the end objective of ethical behavior;
(2) identifying types of contracts that raise heightened concerns for potential conflicts of interest;
(3) considering the development of a standard ethics clause or a set of standard ethics clauses that set forth the contractor's responsibility for inclusion in solicitations and contracts; and
(4) maintaining a repository of best practices relating to the prevention of personal conflicts of interest.
(c) Report- Not later than 180 days after the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report on actions taken under this section.
SEC. 210. LINKING OF AWARD AND INCENTIVE FEES TO ACQUISITION OUTCOMES.
(a) Guidance on Linking of Award and Incentive Fees to Acquisition Outcomes- Not later than 180 days after the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall issue guidance, with detailed implementation instructions (including definitions), for executive agencies on the appropriate use of award and incentive fees in Federal acquisition programs.
(b) Elements- The guidance under subsection (a) shall--
(1) ensure that all new contracts using award fees link such fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance);
(2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts;
(3) provide guidance on the circumstances in which contractor performance may be judged to be `excellent' or `superior' and the percentage of the available award fee which contractors should be paid for such performance;
(4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be `acceptable', `average', `expected', `good', or `satisfactory';
(5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract;
(6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods;
(7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the Federal Government;
(8) ensure that each executive agency--
(A) collects relevant data on award and incentive fees paid to contractors; and
(B) has mechanisms in place to evaluate such data on a regular basis;
(9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and
(10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials.
TITLE III--ACCOUNTABILITY AND ADMINISTRATION
SEC. 301. DEFINITIZING OF LETTER CONTRACTS.
(a) Civilian Contracts- 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. 318. DEFINITIZING OF LETTER CONTRACTS.
`The head of an executive agency shall unilaterally determine all missing terms in an undefinitized letter contract that have not been agreed upon within 180 days after such letter contract has been entered into or before 40 percent of the work under such letter contract has been completed. Any terms so determined shall be subject to the contract disputes process.'.
(b) Defense Contracts-
(1) DEFINITIZING OF LETTER CONTRACTS- Chapter 137 of title 10, United States Code, is amended by inserting after at the end the following new section:
`Sec. 2334. Definitizing of letter contracts
`The head of an agency shall unilaterally determine all missing terms in an undefinitized letter contract that have not been agreed upon within 180 days after such letter contract has been entered into or before the funds obligated under such letter contract exceed 50 percent of the not-to-exceed cost of the contract. Any terms so determined shall be subject to the contract disputes process.'.
(2) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by adding at the end the following new item:
`2334. Definitizing of letter contracts.'.
SEC. 302. PREVENTING ABUSE OF INTERAGENCY CONTRACTS AND ASSISTED ACQUISITION SERVICES.
(a) Office of Management and Budget Policy Guidance-
(1) REPORT AND GUIDELINES- Not later than one year after the date of the enactment of this Act, the Director of the Office of Management and Budget shall--
(A) submit to Congress a comprehensive report on interagency acquisitions, including their frequency of use, management controls, cost-effectiveness, and savings generated; and
(B) issue guidelines to assist the heads of executive agencies in improving the management of interagency acquisitions.
(2) MATTERS COVERED BY GUIDELINES- For purposes of paragraph (1)(B), the Director shall include guidelines on the following matters:
(A) Procedures for the use of interagency acquisitions to maximize competition, deliver best value to executive agencies, and minimize waste, fraud, and abuse.
(B) Categories of contracting inappropriate for interagency acquisition, due to high risk of waste, fraud, or abuse.
(C) Requirements for training acquisition workforce personnel in the proper use of interagency acquisitions.
(b) Regulations Required- Not later than one year after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to require that all assisted acquisitions--
(1) include a written agreement between the requesting agency and the servicing agency assigning responsibility for the administration and management of the contract;
(2) include a determination that an assisted acquisition is the best procurement alternative; and
(3) include sufficient documentation to ensure an adequate audit.
(c) Agency Reporting Requirement- The senior procurement executive for each executive agency shall, as directed by the Director of the Office of Management and Budget, submit to the Director annual reports on the actions taken by the executive agency pursuant to the guidelines issued under subsection (a).
(d) Report on Interagency Contracting-
(1) IN GENERAL- Not later than 90 days after the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall report on a survey of existing interagency contracts.
(2) CONTENT- The report under paragraph (1) shall include the following information:
(A) The number of interagency contracts that are currently in operation, and the scope, sponsoring agencies, primary users, activity levels (in terms of orders and value) for the most recent fiscal year, and rationales for such contracts.
(B) The level of acquisition activity conducted by the Intergovernmental Revolving Funds (including the Franchise Funds) on behalf of other executive agencies.
(C) The number of enterprisewide, single agency contracts that are currently in operation, and the scope, activity levels (in terms of orders and value) for the most recent fiscal year, and rationales for such contracts.
(3) PUBLICATION- The Director of the Office of Management and Budget shall make the report under this subsection publicly available, subject to applicable statutory and regulatory limits on the release of such information.
(e) Review of Federal Supply Schedule Contracts- Not later than 270 days after the date of the enactment of this Act, the Administrator of General Services shall review existing Federal Supply Schedule (FSS) contracts to determine whether, in light of the entire inventory of interagency contracts, any of the FSS contracts should be eliminated in order to avoid unnecessary duplication.
(f) Review and Authorization of Multi-Agency Contracts-
(1) REGULATIONS REQUIRED- Not later than 180 days after the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall publish in the Federal Acquisition Regulation, regulations requiring that the acquisition plan in support of multi-agency contracts shall include a business case analysis justifying the award and administration of the contract. At a minimum, the business case shall include the fully burdened cost to the Federal Government of awarding and administering the contract and the impact the contract will have on the ability of the Federal Government to leverage its buying power.
(2) REVIEW- Not later than 270 days after the date of enactment of this Act, the Administrator for Federal Procurement Policy, in consultation with the Administrator of General Services, shall review all multi-agency contracts and determine whether each contract is cost effective or redundant with existing contracts available for multi-agency use.
(3) APPROVAL REQUIRED- No executive agency may exercise an option on an existing multi-agency contract or award a new multi-agency contract without the express written approval of the Administrator for Federal Procurement Policy.
(4) EVALUATION OF COSTS- In determining whether a contract is cost effective, the Administrator shall evaluate the fully burdened costs associated with awarding and maintaining the contract. In the event that the fully burdened costs cannot be determined, the Administrator shall use the same formula for determining agency performance of a function identified in OMB Circular A-76.
(g) Review of Other Indefinite Delivery, Indefinite Quantity Contracts-
(1) REVIEW- Not later than 270 days after the date of the enactment of this Act, the head of each executive agency, in consultation with the Administrator for Federal Procurement Policy, shall review all indefinite delivery, indefinite quantity contracts awarded by the executive agency and determine whether those contracts are cost effective or redundant with other contracts within the agency or available for the agency's use.
(2) EVALUATION OF COSTS- In determining whether a contract is cost effective, the head of the executive agency shall evaluate the fully burdened costs associated with awarding and maintaining the contract. In cases where the fully burdened costs cannot be determined, the Administrator shall use the same formula for determining Agency performance of a function identified in Office of Management and Budget Circular A-76.
(h) Improved Transparency of Interagency Contracting Data- Not later than 180 days after the date of the enactment of this Act, the Director of the Office of Management and Budget shall direct appropriate revisions to the government-wide procurement system known as the Federal Procurement Data System-Next Generation in order to facilitate the collecting and publication of complete and reliable order-level data on interagency contracting transactions.
(i) Executive Agency Defined- In this section, the term `executive agency' includes the Department of Defense, but does not include the military departments and defense agencies.
SEC. 303. PURCHASE CARD WASTE ELIMINATION.
(a) Requirement for Guidance-
(1) OFFICE OF MANAGEMENT AND BUDGET POLICY GUIDANCE- Not later than 180 days after the date of the enactment of this Act, the Director of the Office of Management and Budget shall issue guidelines to assist the heads of executive agencies in improving the management of the use of the Governmentwide commercial purchase card for making micro-purchases. The Director shall include guidelines on the following matters:
(A) Analysis of purchase card expenditures to identify opportunities for achieving savings through micro-purchases made in economical volumes.
(B) Negotiation of discount agreements with major vendors accepting the purchase card.
(C) Establishment of communication programs to ensure that purchase cardholders receive information pertaining to the availability of discounts, including programs for the training of purchase cardholders on the availability of discounts.
(D) Assessment of cardholder purchasing practices, including use of discount agreements.
(E) Collection and dissemination of best practices and successful strategies for achieving savings in micro-purchases.
(F) Analysis of purchase card expenditures to identify opportunities for achieving and accurately measuring fair participation of small business concerns in micro-purchases consistent with the national policy on small business participation in Federal procurement set forth in sections 2(a) and 15(g) of the Small Business Act (15 U.S.C. 631(a) and 644(g)), and dissemination of best practices for participation of small business concerns in micro-purchases.
(2) GENERAL SERVICES ADMINISTRATION- The Administrator of General Services shall--
(A) continue efforts to improve reporting by financial institutions that issue the Governmentwide commercial purchase card so that the General Services Administration has the data needed to identify opportunities for achieving savings; and
(B) actively pursue point-of-sale discounts with major vendors accepting the purchase card so that any Federal Government purchaser using the purchase card can benefit from such point-of-sale discounts.
(3) AGENCY REPORTING REQUIREMENT- The senior procurement executive for each executive agency shall, as directed by the Director of the Office of Management and Budget, submit to the Director periodic reports on the actions taken in such executive agency pursuant to the guidelines issued under paragraph (1).
(4) CONGRESSIONAL OVERSIGHT- Not later than December 31 of the year following the year in which this Act is enacted, and December 31 of each of the ensuing 3 years, the Director of the Office of Management and Budget shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report summarizing for the fiscal year ending in the year in which such report is due the progress made--
(A) in improving the management of the use of the Governmentwide commercial purchase card for making micro-purchases; and
(B) in achieving savings in micro-purchases made with such card, expressed in terms of average savings achieved by each executive agency in the use of discount agreements identified in paragraph (1) and the total savings achieved Governmentwide.
(b) Payments to Federal Contractors With Federal Tax Debt- The General Services Administration, in conjunction with the Internal Revenue Service and the Financial Management Service, shall develop procedures to subject purchase card payments to Federal contractors to the Federal Payment Levy program.
(c) Reporting of Air Travel by Federal Government Employees-
(1) ANNUAL REPORTS REQUIRED- The Administrator of the General Services shall submit annually to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report on all first class and business class travel by employees of each executive agency undertaken at the expense of the Federal Government.
(2) CONTENT- The reports submitted pursuant to paragraph (1) shall include, at a minimum, with respect to each travel by first class or business class--
(A) the names of each traveler;
(B) the date of travel;
(C) the points of origination and destination;
(D) the cost of the first class or business class travel; and
(E) the cost difference between such travel and travel by coach class.
SEC. 304. LEAD SYSTEMS INTEGRATORS.
(a) Study- Not later than 180 days after the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall develop a government-wide definition of lead systems integrators and complete a study on the use of such integrators by executive agencies.
(b) Guidance- Not later than 180 days after the study under subsection (a) is completed, the Administrator for Federal Procurement Policy shall issue guidance on the appropriate use of lead system integrators to ensure that they are used in the best interests of the Federal Government.
SEC. 305. LIMITATIONS ON TIERING OF SUBCONTRACTORS.
(a) Regulations- The Administrator for Federal Procurement Policy shall promulgate regulations applicable to contracts described in subsection (b) to minimize the excessive use by contractors of subcontractors or tiers of subcontractors in cases where a subcontractor does not perform work in proportion to any overhead or profit that the subcontractor receives under the contract.
(b) Covered Contracts- This section applies to any cost-reimbursement type contract or task or delivery order in an amount greater than the simplified acquisition threshold (as defined by section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)).
SEC. 306. RESPONSIBILITY OF CONTRACTORS THAT ARE SERIOUS THREATS TO NATIONAL SECURITY.
(a) Responsibility of Contractor- The contracting officer for an executive agency may consider whether a contractor may pose a serious threat to national security in assessing whether a contractor is responsible enough to be awarded a Federal contract.
(b) Regulations- Not later than 180 days after the date of the enactment of this Act, the Administrator for Federal Procurement Policy shall provide guidance to executive agencies on implementation of this section.
SEC. 307. REQUIRED CERTIFICATION OF PROGRAM MANAGERS FOR DEPARTMENT OF HOMELAND SECURITY LEVEL ONE PROGRAMS.
Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security shall assign to each program of the Department of Homeland Security with an estimated value of more than $100,000,000 at least one program manager certified by the Secretary as competent to administer programs of that size.
SEC. 308. ELIMINATION OF ONE-YEAR LIMITATION ON INTEREST DUE ON LATE PAYMENTS TO CONTRACTORS.
Section 3901(d)(3)(A) of title 31, United States Code, is amended to read as follows:
`(3)(A) Except as provided in subparagraph (B), an interest penalty under this chapter does not continue to accrue after a claim for an interest penalty is filed in the manner described in paragraph (2).'.
SEC. 309. ENSURING THAT FEDERAL EMPLOYEES PERFORM INHERENTLY GOVERNMENTAL WORK.
The Administrator for Federal Procurement Policy shall--
(1) analyze the services for which agencies are contracting (other than through the process governed by Office of Management and Budget Circular A-76);
(2) establish government-wide guidelines to ensure that inherently governmental work is performed by Federal employees; and
(3) report to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives on actions taken under this section not later than 180 days after the date of the enactment of this Act.
SEC. 310. REPORT ON ACQUISITION ADVISORY PANEL REPORT IMPLEMENTATION.
(a) In General- Not later than 90 days after the date of the enactment of this Act, the Director of the Office of Management and Budget shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a comprehensive report on implementation of the recommendations of the Acquisition Advisory Panel (in this section referred to as the `Panel') established under section 1423 of the Services Acquisition Reform Act of 2003 (title XIV of Public Law 108-136; 41 U.S.C. 405 note).
(b) Content- The report required under subsection (a) shall include--
(1) a description of the implementation of the recommendations of the Panel; and
(2) with respect to any recommendations of the Panel not implemented, a justification and discussion of the reasons for not implementing such recommendations.
SEC. 311. REPORT BY THE GOVERNMENT ACCOUNTABILITY OFFICE.
(a) Report- In order to assess additional actions that should be taken to further improve the acquisition system, the Comptroller General of the United States shall, not later than 1 year after the date of the enactment of this Act, conduct reviews and submit one or more reports to Congress on Federal acquisition policy.
(b) Content- The report required under subsection (a) shall include the following:
(1) An assessment of the 2 statutory standards governing the qualifications of the government's acquisition workforce and an assessment of the implementation of and practical impact of both standards and whether there should be a single standard for the acquisition workforce.
(2) A list and assessment of all Federal institutions providing acquisition and program management education and training and a recommendation on the advisability of continuing to offer education and training through multiple institutions or whether education and training should be combined at one government-wide institution.
(3) A review of agency compliance with Section 1412 of the Services Acquisition Reform Act of 2003 (title XIV of Public Law 108-136; 41 U.S.C. 433 note), including whether agencies have appointed Chief Acquisition Officers whose primary duties are acquisition management, and recommendations for the appointment of Chief Acquisition Officers government-wide.
(c) Government Accountability Office Review- Not later than 18 months after the date of the enactment of this Act, the Comptroller General of the United States shall review the determinations made by executive agencies under section 303(g) regarding indefinite delivery, indefinite quantity contracts and shall submit to Congress a report on the implementation of requirements related to such determinations.
SEC. 312. MAPPING AND SURVEYING SERVICES.
The Administrator for Federal Procurement Policy shall amend the Federal Acquisition Regulation to provide guidance on contracting for mapping and surveying services in accordance with chapter 11 of title 40, United States Code, to ensure that these services are being procured through appropriate competitive procedures and that offers are evaluated using a qualifications-based selection process.
SEC. 313. TIMELY AND ACCURATE TRANSMISSION OF INFORMATION INCLUDED IN FEDERAL PROCUREMENT DATA SYSTEM.
Section 19 of the Office of Federal Procurement Policy Act (41 U.S.C. 417(d)) is amended to read as follows:
`(d) Transmission and Data Entry of Information- The head of each executive agency shall ensure the accuracy of the information included in the record established and maintained by such agency under subsection (a) and shall timely transmit such information to the General Services Administration for entry into the Federal Procurement Data System referred to in section 6(d)(4), or any successor system.'.
SEC. 314. USE OF EXISTING FUNDS FOR REGULATIONS AND REPORTS.
Provisions and amendments of this Act requiring the promulgation of regulations or the production of reports shall be carried out using existing funds.
Passed the Senate November 7, 2007.
Attest:
Secretary.
To ensure proper oversight and accountability in Federal contracting, and for other purposes.