< Back to H.R. 1795 (104th Congress, 1995–1996)

Text of the Federal Acquisition Improvement Reform Act of 1995

This bill was introduced on June 8, 1995, in a previous session of Congress, but was not enacted. The text of the bill below is as of Jun 8, 1995 (Introduced).

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HR 1795 IH

104th CONGRESS

1st Session

H. R. 1795

To improve Government procurement procedures.

IN THE HOUSE OF REPRESENTATIVES

June 8, 1995

Mrs. COLLINS of Illinois introduced the following bill; which was referred to the Committee on Government Reform and Oversight, and in addition to the Committee on National Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To improve Government procurement procedures.

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

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) SHORT TITLE- This Act may be cited as the ‘Federal Acquisition Improvement Reform Act of 1995’.

    (b) TABLE OF CONTENTS- The table of contents for this Act is as follows:

      Sec. 1. Short title and table of contents.

      Sec. 2. Competition provisions.

      Sec. 3. Simplified procedures for purchases of commercial items.

      Sec. 4. Disclosing and obtaining contractor bid or proposal information or source selection information.

      Sec. 5. Value engineering requirements for Federal agencies.

SEC. 2. COMPETITION PROVISIONS.

    (a) CONFERENCE BEFORE SUBMISSION OF BIDS OR PROPOSALS- (1) Section 2305(a) of title 10, United States Code, is amended by adding at the end the following paragraph:

    ‘(6) To the extent practicable, for each procurement of property or services by an agency, the head of the agency shall provide for a conference on the procurement to be held for anyone interested in submitting a bid or proposal in response to the solicitation for the procurement. The purpose of the conference shall be to inform potential bidders and offerors of the needs of the agency and the qualifications considered necessary by the agency to compete successfully in the procurement.’.

    (2) Section 303A of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253a) is amended by adding at the end the following new subsection:

    ‘(f) To the extent practicable, for each procurement of property or services by an agency, an executive agency shall provide for a conference on the procurement to be held for anyone interested in submitting a bid or proposal in response to the solicitation for the procurement. The purpose of the conference shall be to inform potential bidders and offerors of the needs of the executive agency and the qualifications considered necessary by the executive agency to compete successfully in the procurement.’.

    (b) DESCRIPTION OF SOURCE SELECTION PLAN IN SOLICITATION- (1) Section 2305(a) of title 10, United States Code, is further amended in paragraph (2)--

      (A) by striking out ‘and’ after the semicolon at the end of subparagraph (A);

      (B) by striking out the period at the end of subparagraph (B) and inserting in lieu thereof ‘; and’; and

      (C) by adding at the end the following new subparagraph:

      ‘(C) a description, in as much detail as is practicable, of the source selection plan of the agency, or a notice that such plan is available upon request.’.

    (2) Section 303A of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253a) is further amended in subsection (b)--

      (A) by striking out ‘and’ after the semicolon at the end of paragraph (1);

      (B) by striking out the period at the end of paragraph (2) and inserting in lieu thereof ‘; and’; and

      (C) by adding at the end the following new paragraph:

      ‘(3) a description, in as much detail as is practicable, of the source selection plan of the executive agency, or a notice that such plan is available upon request.’.

    (c) DISCUSSIONS NOT NECESSARY WITH EVERY OFFEROR- (1) Section 2305(b)(4)(A)(i) of title 10, United States Code, is amended by inserting before the semicolon the following: ‘and provided that discussions need not be conducted with an offeror merely to permit that offeror to submit a technically acceptable revised proposal’.

    (2) Section 303B(d)(1)(A) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253b) is amended by inserting before the semicolon the following: ‘and provided that discussions need not be conducted with an offeror merely to permit that offeror to submit a technically acceptable revised proposal’.

    (d) PRELIMINARY ASSESSMENTS OF COMPETITIVE PROPOSALS- (1) Section 2305(b)(2) of title 10, United States Code, is amended by adding at the end the following: ‘With respect to competitive proposals, the head of the agency may make a preliminary assessment of a proposal received, rather than a complete evaluation of the proposal, and may eliminate the proposal from further consideration if the head of the agency determines the proposal has no chance for contract award.’.

    (2) Section 303B of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253b) is amended by adding at the end the following: ‘With respect to competitive proposals, the head of the agency may make a preliminary assessment of a proposal received, rather than a complete evaluation of the proposal, and may eliminate the proposal from further consideration if the head of the agency determines the proposal has no chance for contract award.’.

    (e) FEDERAL ACQUISITION REGULATION- The Federal Acquisition Regulation shall be revised to reflect the amendments made by subsections (a), (b), (c), and (d).

SEC. 3. SIMPLIFIED PROCEDURES FOR PURCHASES OF COMMERCIAL ITEMS.

    (a) ARMED SERVICES ACQUISITIONS- Subsection (g) of section 2304 of title 10, United States Code, is amended to read as follows:

    ‘(g) SIMPLIFIED PROCEDURES- (1) In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for special simplified procedures for purchases of commercial items and for purchases of property and services for amounts not greater than the simplified acquisition threshold.

    ‘(2) A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures required by paragraph (1).

    ‘(3) In using simplified procedures, the head of an agency shall ensure that competition is obtained to the extent practicable consistent with the particular Government requirement.

    ‘(4) In the case of a purchase of commercial items, if the purchase or contract is for an amount in excess of the simplified acquisition threshold, the head of the agency shall justify in writing the use of simplified procedures under this subsection.’.

    (b) CIVILIAN AGENCY ACQUISITIONS- Subsection (g) of section 303 of the Federal Property Administrative Services Act of 1949 (41 U.S.C. 253) is amended to read as follows:

    ‘(g) SIMPLIFIED PROCEDURES- (1) In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for special simplified procedures for purchases of commercial items and for purchases of property and services for amounts not greater than the simplified acquisition threshold.

    ‘(2)(A) The Administrator of General Services shall prescribe regulations that provide special simplified procedures for acquisitions of leasehold interests in real property at rental rates that do not exceed the simplified acquisition threshold.

    ‘(B) For purposes of subparagraph (A), the rental rate or rates under a multiyear lease do not exceed the simplified acquisition threshold if the average annual amount of the rent payable for the period of the lease does not exceed the simplified acquisition threshold.

    ‘(3) A proposed purchase or contract or for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts in order to use the simplified procedures required by paragraph (1).

    ‘(4) In using simplified procedures, an executive agency shall ensure that competition is obtained to the extent practicable consistent with the particular Government requirement.

    ‘(5) In the case of a purchase of commercial items, if the purchase or contract is for an amount in excess of the simplified acquisition threshold, the executive agency shall justify in writing the use of simplified procedures under this subsection.’.

SEC. 4. DISCLOSING AND OBTAINING CONTRACTOR BID OR PROPOSAL INFORMATION OR SOURCE SELECTION INFORMATION.

    (a) AMENDMENT OF PROCUREMENT INTEGRITY PROVISION- Section 27 of the Office of Federal Procurement Policy Act (41 U.S.C. 423) is amended--

      (1) by repealing subsections (a) through (e) and (g) through (p);

      (2) in subsection (f), by striking out the subsection heading and redesignating the subsection as subsection (i);

      (3) by amending the section heading to read as follows:

‘SEC. 27. DISCLOSING AND OBTAINING CONTRACTOR BID OR PROPOSAL INFORMATION OR SOURCE SELECTION INFORMATION AND RESTRICTIONS RESULTING FROM PROCUREMENT ACTIVITIES OF PROCUREMENT OFFICIALS.’;

      and

      (4) by inserting before subsection (i) (as so redesignated) the following:

    ‘(a) A present or former officer or employee of the United States, or a person who is acting or has acted for or on behalf of or who is advising or has advised the United States with respect to a Federal agency procurement and who--

      ‘(1) by virtue of that office, employment, or relationship has or had access to contractor bid or proposal information or source selection information, and

      ‘(2) other than as provided by law, knowingly discloses that information before the award of a Federal agency procurement contract to which the information relates, is subject to the penalties and administrative actions set forth in subsection (d).

    ‘(b) Whoever, other than as provided by law, knowingly obtains contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates, is subject to the penalties and administrative actions set forth in subsection (d).

    ‘(c) Whoever, other than as provided by law, knowingly violates the terms of a protective order, issued by the Comptroller General or the board of contract appeals of the General Services Administration in connection with a protest against the award or proposed award of a Federal agency procurement contract, by disclosing or obtaining contractor bid or proposal information or source selection information is subject to the penalties and administrative actions set forth in subsection (d).

    ‘(d) The penalties and administrative actions for an offense under subsection (a), (b), or (c), are as follows:

      ‘(1) CRIMINAL PENALTIES-

        ‘(A) Whoever engages in the conduct constituting the offense shall be imprisoned for not more than one year or fined in the amount set forth in section 3571 of title 18, United States Code, or both.

        ‘(B) Whoever engages in the conduct constituting the offense for the purpose of either--

          ‘(i) exchanging the information covered by subsections (a), (b), and (c), for anything of value, or

          ‘(ii) obtaining or giving anyone a competitive advantage in the award of a Federal agency procurement contract, shall be imprisoned for not more than 15 years or fined in the amount set forth in section 3571 of title 18, United States Code, or both.

      ‘(2) CIVIL PENALTIES- The Attorney General may bring a civil action in the appropriate United States district court against any person who engages in conduct constituting an offense under subsection (a), (b), or (c). Upon proof of such conduct by a

preponderance of the evidence, the person is subject to a civil penalty. An individual who engages in such conduct is subject to a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation which the individual received or offered for the prohibited conduct. An organization that engages in such conduct is subject to a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation which the organization received or offered for the prohibited conduct.

      ‘(3) Administrative actions. If a Federal agency receives information that a contractor or a person has engaged in conduct constituting an offense under subsection (a), (b), or (c), the Federal agency shall consider one or more of the following actions, as appropriate:

        ‘(A) Canceling the Federal agency procurement when a contract has not been awarded;

        ‘(B) Declaring void and rescinding a contract in relation to which there has been either--

          ‘(i) a conviction for an offense under subsection (a), (b), or (c), committed by the contractor or someone acting for the contractor, or

          ‘(ii) a determination by the head of the agency based upon a preponderance of the evidence that the contractor or someone acting for the contractor has engaged in such conduct.

        If such action is taken, the United States is entitled to recover in addition to any penalty prescribed by law, the amount expended under the contract;

        ‘(C) Initiating suspension or debarment proceedings for the protection of the Government in accordance with procedures in the Federal Acquisition Regulation. In this regard, engaging in conduct constituting an offense under subsection (a), (b), or (c), affects the present responsibility of a Government contractor or subcontractor; or

        ‘(D) Initiating adverse personnel action, pursuant to the procedures in chapter 75 of title 5, United States Code, or other applicable law or regulation.

    ‘(e) For purposes of this section:

      ‘(1) The term ‘contracting officer’ means a person who, by appointment in accordance with applicable regulations, has the authority to enter a Federal agency procurement contract on behalf of the Government and to make determinations and findings with respect to such a contract.

      ‘(2) The term ‘contractor bid or proposal information’ means the following information submitted to a Federal agency as part of or in connection with a bid or proposal to enter into a Federal agency procurement contract, if that information has not been previously made available to the public or disclosed publicly;

        ‘(A) Cost or pricing data;

        ‘(B) Indirect costs and direct labor rates;

        ‘(C) Proprietary information about manufacturing processes, operations, or techniques marked by the contractor in accordance with applicable law or regulation; or

        ‘(D) Information marked by the contractor as ‘contractor bid or proposal information,’ in accordance with applicable law or regulation.

      ‘(3) The term ‘Federal agency’ has the meaning given that term in section 3 of the Federal Property and Administrative Services Act (40 U.S.C. 472).

      ‘(4) The term ‘Federal agency procurement’ means the competitive acquisition by contract of supplies or services (including construction) from non-Federal sources by a Federal agency using appropriated funds.

      ‘(5) The term ‘protest’ means a written objection by an interested party to the award or proposed award of a Federal agency procurement contract, pursuant to section 111 of the Federal Property and Administrative Services Act (40 U.S.C. 759) or subchapter V of chapter 35 of title 31, United States Code.

      ‘(6) The term ‘source selection information’ means the following information prepared for use by a Federal agency for the purpose of evaluating a bid or proposal to enter into a Federal agency procurement contract, if that information has not been previously made available to the public or disclosed publicly:

        ‘(A) Bid prices submitted in response to a Federal agency solicitation for sealed bids or lists of those bid prices prior to public bid opening;

        ‘(B) Proposed costs or prices submitted in response to a Federal agency solicitation or lists of those proposed costs or prices;

        ‘(C) Source selection plans;

        ‘(D) Technical evaluation plans;

        ‘(E) Technical evaluations of proposals;

        ‘(F) Cost or price evaluations of proposals;

        ‘(G) Competitive range determinations which identify proposals that have a reasonable chance of being selected for award of a contract;

        ‘(H) Rankings of bids, proposals, or competitors;

        ‘(I) The reports and evaluations of source selection panels or boards or advisory councils; or

        ‘(J) Other information marked as ‘source selection information’ based upon a case-by-case determination by the head of the agency, his designee, or the contracting officer that its disclosure would jeopardize the integrity or successful completion of the Federal agency procurement to which the information relates.

    ‘(f) No person may file a protest against the award or proposed award of a Federal agency procurement contract alleging an offense under subsection (a), (b), or (c), of this section, nor may the Comptroller General or the board of contract appeals of the General Services Administration consider such an allegation in deciding such a protest, unless that person reported information to the Federal agency responsible for the procurement that he believed constituted evidence of the offense no later than ten working days after he first discovered the possible offense.

    ‘(g) This section does not--

      ‘(1) restrict the disclosure of information to or its receipt by any person or class of persons authorized, in accordance with applicable agency regulations or procedures, to receive that information;

      ‘(2) restrict a contractor from disclosing its own bid or proposal information or the recipient from receiving that information;

      ‘(3) restrict the disclosure or receipt of information relating to the Federal agency procurement after it has been canceled by the Federal agency prior to contract award unless the Federal agency plans on resuming the procurement;

      ‘(4) authorize the withholding of information from nor restrict its receipt by the Congress, a committee or subcommittee thereof, the Comptroller General, a Federal agency, or an Inspector General of a Federal agency;

      ‘(5) authorize the withholding of information from nor restrict its receipt by the Court of Federal Claims, any board of contract appeals of a Federal agency or the Comptroller General in the course of a protest against the award or proposed award of a Federal agency procurement contract;

      ‘(6) prohibit individual meetings between an agency employee and a competitor for or recipient of a contract or subcontract under a Federal agency procurement, provided that unauthorized disclosure or receipt of contractor bid or proposal information or source selection information does not occur; or

      ‘(7) limit the applicability of the requirements, sanctions, contract penalties, and remedies established under any other law or regulation.

    ‘(h) This section does not apply to the conduct of a Federal agency procurement for an amount not greater than the simplified acquisition threshold as defined in section 4(11).’.

    (b) REGULATIONS AND GUIDELINES- Government-wide regulations and guidelines deemed appropriate to carry out this section shall be issued in the Federal Acquisition Regulation by the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration, in coordination with the Federal Acquisition Regulatory Council.

    (c) REPEAL- Subsection 32(c) of the Office of Federal Procurement Policy Act (41 U.S.C. 28(c)) is repealed.

    (d) CONFORMING AMENDMENT- Section 32 of the Office of Federal Procurement Policy Act is amended by redesignating subsections (d), (e), (f), and (g) as subsections (c), (d), (e), and (f), respectively.

SEC. 5. VALUE ENGINEERING REQUIREMENTS FOR FEDERAL AGENCIES.

    (a) IN GENERAL- Federal agencies shall apply value engineering consistent with subsection (b)(2) to, at a minimum, identify and implement opportunities to reduce capital and operation costs and improve and maintain optimum quality of construction, administrative, program, acquisition, and grant projects. The head of each Federal agency shall require senior management personnel to establish and maintain value engineering procedures and processes. Such procedures and processes shall, at a minimum--

      (1) utilize qualified value engineering personnel consistent with paragraphs (1) and (4) of subsection (b);

      (2) provide for the aggressive and systematic development and maintenance of the most effective, efficient, and economical arrangement for conducting the work of the agency; and

      (3) provide a sound basis for the reporting of accomplishments to the Office of Management and Budget, the President, the Congress, and the public.

    (b) AGENCY RESPONSIBILITIES- To ensure that systemic value engineering improvements are achieved, each Federal agency shall, at a minimum, carry out the following:

      (1) Designate a senior management official with a significant, well-documented background in value engineering as the value engineering manager within the agency, to oversee and monitor value engineering efforts and to coordinate the development of criteria and guidelines referred to in paragraph (2).

      (2) Develop criteria and guidelines for both agency employees and contractor employees to identify programs, projects, systems, and products with the greatest potential to yield savings and benefits from the application of value engineering methodology. The criteria and guidelines should recognize that the potential savings are greatest during the planning, design, and other early phases of program, project, system, and product development. The criteria and guidelines shall include the following:

        (A) Consideration of return on the Government’s investment in value engineering, determined by dividing the Government’s cost of performing the value engineering function by the savings generated by the function.

        (B) A dollar amount threshold for requiring the application of value engineering. The threshold shall be designed to ensure that value engineering is applied to--

          (i) each program, project, system, and product of the agency that has a dollar value greater than the threshold; and

          (ii) those programs, projects, systems, and products that, in a ranking of all programs, projects, systems, and products of the agency according to greatest dollar value, are within the highest 20th percentile.

        For purposes of applying such a threshold, the dollar values of various programs, projects, systems, and products of an agency that have individual values below the threshold shall be aggregated if they utilize equivalent planning or design elements, are jointly administered, or are functionally equivalent.

        (C) Criteria under which the value engineering manager of the agency may, on a case-by-case basis, waive the requirement of this Act to conduct value engineering studies, and procedures and requirements for documenting and maintaining records of the justification for each such waiver.

      (3) Provide training (including practical experience) in established value engineering methodology to agency staff responsible for coordinating and monitoring value engineering efforts and to staff responsible for developing, reviewing, analyzing, carrying out, changing, and evaluating value engineering proposals.

      (4) Ensure that funds necessary for conducting agency value engineering efforts are included in annual budget requests to the Office of Management and Budget.

      (5) Document and maintain records of--

        (A) programs, projects, systems, and products that meet agency criteria for requiring the use of value engineering techniques; and

        (B) determinations (including the reasons therefor) that the recommendations resulting from a value engineering review should not be implemented.

      (6) Except when inconsistent with this Act, adhere to the acquisition requirements of the Federal Acquisition Regulation, including the use of value engineering clauses in parts 48 and 52 for both prime and subcontractors.

      (7) In the case of discretionary grants awarded by the agency, establish value engineering requirements, such as requiring grant applications to include a clause requiring the use of value engineering methodology by qualified value engineering personnel in the performance of the grant.

      (8) Develop annual plans for using value engineering in the agency, which, at a minimum, identify--

        (A) the agency and contractor projects, programs, systems, and products to which value engineering techniques will be applied in the next fiscal year; and

        (B) the estimated costs of such projects, programs, systems, and products.

      (9) Report annually to the Office of Management and Budget on value engineering activities in accordance with subsection (c).

    (c) REPORTS TO OFFICE OF MANAGEMENT AND BUDGET-

      (1) IN GENERAL- The head of each Federal agency shall submit to the Office of Management and Budget an annual report on the results of using value engineering in the agency. The report shall be submitted by February 15 of each year.

      (2) CONTENTS- The report required by this subsection shall include the following:

        (A) The name, job title, address, telephone number, and any additional job titles of the agency’s current value engineering manager.

        (B) The Government’s return on investment in value engineering achieved through actual implementation by the agency of recommendations adopted as a result of value engineering, calculated by dividing the amount of savings achieved through such implementation by the cost of performing value engineering reviews.

        (C) The Government’s potential return on investment achievable through value engineering, calculated by dividing the amount of savings achievable through the adoption of recommendations as a result of value engineering by the cost of performing value engineering reviews to produce those recommendations.

        (D) A description of the application of value engineering to the agency’s programs, projects, systems, and products, including the net savings and quality improvements achieved through use of value engineering in those programs, projects, systems, and products.

        (E) A listing of the criteria adopted by the agency pursuant to subsection (b)(2)(C) for waiving the application of the value engineering requirements of this Act, and documentation of any waivers granted under the criteria.

    (d) INSPECTOR GENERAL AUDITS- The Inspector General of each Federal agency shall audit the savings reported by the agency in the second annual report submitted under subsection (c). Thereafter, the Inspector General of each Federal agency shall audit the reported savings every second year.

    (e) USE OF SAVINGS- Of amounts available to a Federal agency for a fiscal year for a program, project, or system or development of a product that are unobligated at the end of the fiscal year as a result of the application of value engineering in accordance with this Act--

      (1) 50 percent shall be available to the agency for--

        (A) use in the next fiscal year for that program, project, system, or development; and

        (B) use for programs in effect on the date of the enactment of this Act under which incentives are provided to employees of the agency to identify and implement methods for achieving savings in programs, projects, systems, and product development of the agency; and

      (2) 50 percent shall be deposited in the general fund of the Treasury and used to reduce the Federal debt.

    (f) REVIEW- The Director of Management and Budget shall review the policies contained in this Act 5 years after the date of the enactment of this Act and shall report the results of such review to Congress.

    (g) DEFINITIONS- For purposes of this Act, the following definitions apply:

      (1) The term ‘Federal agency’ has the meaning the term ‘agency’ has under section 551(1) of title 5, United States Code.

      (2) The term ‘savings’ means a reduction in, or avoidance of, expenditures that would be incurred if programs, projects, systems, and products were not evaluated using value engineering techniques.

      (3) The term ‘value engineering’ means a team effort, performed by qualified agency or contractor personnel, directed at analyzing the functions of a program, project, system, product, item of equipment, building, facility, service, or supply for the purpose of achieving the essential functions at the lowest life-cycle cost that is consistent with required or improved performance, reliability, quality, and safety.

      (4) The term ‘life-cycle cost’ means the total cost of a program, project, system, product, item of equipment, building, facility, service, or supply, computed over its useful life. The term includes all relevant costs involved in acquiring, owning, operating, maintaining, and disposing of the program, project, system, product, item of equipment, building, facility, service, or supply over a specified period of time.