H.R. 1362 (110th): Accountability in Contracting Act

110th Congress, 2007–2009. Text as of Mar 15, 2007 (Referred to Senate Committee).

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IIB

110th CONGRESS

1st Session

H. R. 1362

IN THE SENATE OF THE UNITED STATES

March 15, 2007

Received; read twice and referred to the Committee on Homeland Security and Governmental Affairs

AN ACT

To reform acquisition practices of the Federal Government.

1.

Short title and table of contents

(a)

Short title

This Act may be cited as the Accountability in Contracting Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title and table of contents.

Title I—Improving the Quality of Contracts

Sec. 101. Limitation on length of noncompetitive contracts.

Sec. 102. Minimizing sole-source contracts.

Sec. 103. Maximizing fixed-price procurement contracts.

Title II—Increasing Contract Oversight

Sec. 201. Public disclosure of justification and approval documents for noncompetitive contracts.

Sec. 202. Disclosure of Government contractor audit findings.

Sec. 203. Study of acquisition workforce.

Sec. 204. Repeal of sunset of training fund.

Sec. 205. Notice to Congress of noncompetitive contracts awarded to foreign-owned companies in countries sponsoring terrorism.

Sec. 206. Prohibition on contracts to educational institutions not supporting U.S. defense efforts.

Title III—Promoting Integrity in Contracting

Sec. 301. Additional provisions relating to procurement officials.

Sec. 302. Report to Congress.

I

Improving the Quality of Contracts

101.

Limitation on length of noncompetitive contracts

(a)

Revision of FAR

Not later than one year after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to restrict the contract period of any contract described in subsection (c) to the minimum contract period necessary—

(1)

to meet the urgent and compelling requirements of the work to be performed under the contract; and

(2)

to enter into another contract for the required goods or services through the use of competitive procedures.

(b)

Contract period

The regulations promulgated under subsection (a) shall require the contract period to not exceed one year, unless the head of the executive agency concerned determines that the Government would be seriously injured by the limitation on the contract period.

(c)

Covered contracts

This section applies to any contract in an amount greater than $1,000,000 entered into by an executive agency using procedures other than competitive procedures pursuant to the exception provided in section 303(c)(2) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(c)(2)) or section 2304(c)(2) of title 10, United States Code.

(d)

Definitions

In this section:

(1)

The term executive agency has the meaning provided in section 4(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)).

(2)

The term head of the executive agency means the head of an executive agency except that, in the case of the Department of Defense, the term means—

(A)

in the case of a military department, the Secretary of the military department;

(B)

in the case of a Defense Agency, the head of the Defense Agency; and

(C)

in the case of any part of the Department of Defense other than a military department or Defense Agency, the Under Secretary of Defense for Acquisition, Technology, and Logistics.

102.

Minimizing sole-source contracts

(a)

Plans required

Subject to subsection (c), the head of each executive agency covered by title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) or, in the case of the Department of Defense, the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall develop and implement a plan to minimize, to the maximum extent practicable, the use of contracts entered into using procedures other than competitive procedures by the agency or department concerned. The plan shall contain measurable goals and shall be completed and submitted to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committees on Appropriations of the House of Representatives and the Senate and, in the case of the Department of Defense and the Department of Energy, the Committees on Armed Services of the Senate and the House of Representatives, with a copy provided to the Comptroller General, not later than 1 year after the date of the enactment of this Act.

(b)

Comptroller General review

The Comptroller General shall review the plans provided under subsection (a) and submit a report to Congress on the plans not later than 18 months after the date of the enactment of this Act.

(c)

Requirement limited to certain agencies

The requirement of subsection (a) shall apply only to those agencies that awarded contracts in a total amount of at least $1,000,000,000 in the fiscal year preceding the fiscal year in which the report is submitted.

(d)

Certain contracts excluded

The following contracts shall not be included in the plans developed and implemented under subsection (a):

(1)

Contracts entered into under section 8(a) of the Small Business Act (15 U.S.C. 637(a)), in amounts less than the amounts listed in paragraph (1)(D)(i)(II) of that section.

(2)

Contracts entered into under section 31 (15 U.S.C. 657a) of such Act, in amounts less than the amounts listed in subsection (b)(2)(A)(ii) of that section.

(3)

Contracts entered into under section 36 of such Act (15 U.S.C. 657f), in amounts less than the amounts listed in subsection (a)(2) of that section.

103.

Maximizing fixed-price procurement contracts

(a)

Plans required

Subject to subsection (c), the head of each executive agency covered by title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) or, in the case of the Department of Defense, the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall develop and implement a plan to maximize, to the fullest extent practicable, the use of fixed-price type contracts for the procurement of goods and services by the agency or department concerned. The plan shall contain measurable goals and shall be completed and submitted to the Committee on Oversight and Government Reform of the House of Representatives, the Committee on Homeland Security and Governmental Affairs of the Senate, and the Committees on Appropriations of the House of Representatives and the Senate and, in the case of the Department of Defense and the Department of Energy, the Committees on Armed Services of the Senate and the House of Representatives, with a copy provided to the Comptroller General, not later than 1 year after the date of the enactment of this Act.

(b)

Comptroller General review

The Comptroller General shall review the plans provided under subsection (a) and submit a report to Congress on the plans not later than 18 months after the date of the enactment of this Act.

(c)

Requirement limited to certain agencies

The requirement of subsection (a) shall apply only to those agencies that awarded contracts in a total amount of at least $1,000,000,000 in the fiscal year preceding the fiscal year in which the report is submitted.

II

Increasing Contract Oversight

201.

Public disclosure of justification and approval documents for noncompetitive contracts

(a)

Civilian agency contracts

(1)

In general

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

(j)
(1)
(A)

Except as provided in subparagraph (B), in the case of a procurement permitted by subsection (c), the head of an executive agency shall make publicly available, within 14 days after the award of the contract, the documents containing the justification and approval required by subsection (f)(1) with respect to the procurement.

(B)

In the case of a procurement permitted by subsection (c)(2), subparagraph (A) shall be applied by substituting 30 days for 14 days.

(2)

The documents shall be made available on the website of the agency and through the Federal Procurement Data System.

(3)

This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5, United States Code.

.

(2)

Conforming amendment

Section 303(f) of such Act is amended—

(A)

by striking paragraph (4); and

(B)

by redesignating paragraph (5) as paragraph (4).

(b)

Defense agency contracts

(1)

In general

Section 2304 of title 10, United States Code, is amended by adding at the end the following new subsection:

(l)
(1)
(A)

Except as provided in subparagraph (B), in the case of a procurement permitted by subsection (c), the head of an agency shall make publicly available, within 14 days after the award of the contract, the documents containing the justification and approval required by subsection (f)(1) with respect to the procurement.

(B)

In the case of a procurement permitted by subsection (c)(2), subparagraph (A) shall be applied by substituting 30 days for 14 days.

(2)

The documents shall be made available on the website of the agency and through the Federal Procurement Data System.

(3)

This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5.

.

(2)

Conforming amendment

Section 2304(f) of such title is amended—

(A)

by striking paragraph (4); and

(B)

by redesignating paragraphs (5) and (6) as paragraphs (4) and (5), respectively.

202.

Disclosure of Government contractor audit findings

(a)

Quarterly Report to Congress

(1)

The head of each Federal agency or department or, in the case of the Department of Defense, the Under Secretary of Defense for Acquisition, Technology, and Logistics, shall submit to the chairman and ranking member of each committee specified in paragraph (2) on a quarterly basis a report that includes the following:

(A)

A list of completed audits performed by such agency or department issued during the applicable quarter that describe contractor costs in excess of $10,000,000 that have been identified as unjustified, unsupported, questioned, or unreasonable under any contract, task or delivery order, or subcontract.

(B)

The specific amounts of costs identified as unjustified, unsupported, questioned, or unreasonable and the percentage of their total value of the contract, task or delivery order, or subcontract.

(C)

A list of completed audits performed by such agency or department issued during the applicable quarter that identify material deficiencies in the performance of any contractor or in any business system of any contractor under any contract, task or delivery order, or subcontract.

(2)

The report described in paragraph (1) shall be submitted to—

(A)

the Committee on Oversight and Government Reform of the House of Representatives;

(B)

the Committee on Homeland Security and Governmental Affairs of the Senate;

(C)

the Committees on Appropriations of the House of Representatives and the Senate;

(D)

in the case of reports from the Department of Defense or the Department of Energy, the Committees on Armed Services of the Senate and the House of Representatives; and

(E)

the committees of primary jurisdiction over the agency or department submitting the report.

(3)

Paragraph (1) shall not apply to an agency or department with respect to a calendar quarter if no audits described in paragraph (1) were issued during that quarter.

(b)

Submission of individual audits

(1)

The head of each Federal agency or department shall provide, within 14 days after a request in writing by the chairman or ranking member of any committee listed in paragraph (2), a full and unredacted copy of any audit described in subsection (a)(1). Such copy shall include an identification of information in the audit exempt from public disclosure under section 552(b) of title 5, United States Code.

(2)

The committees listed in this paragraph are the following:

(A)

The Committee on Oversight and Government Reform of the House of Representatives.

(B)

The Committee on Homeland Security and Governmental Affairs of the Senate.

(C)

The Committees on Appropriations of the House of Representatives and the Senate.

(D)

In the case of the Department of Defense or the Department of Energy, the Committees on Armed Services of the Senate and House of Representatives.

(E)

The committees of primary jurisdiction over the agency or department to which the request is made.

203.

Study of acquisition workforce

(a)

Requirement for study

The Administrator for Federal Procurement Policy shall conduct a study of the composition, scope, and functions of the Government-wide acquisition workforce and develop a comprehensive definition of, and method of measuring the size of, such workforce.

(b)

Report

Not later than 1 year after the date of the enactment of this Act, the Administrator shall submit to the relevant congressional committees a report on the results of the study required by subsection (a), with such findings and recommendations as the Administrator determines appropriate.

204.

Repeal of sunset of training fund

Subparagraph (H) of section 37(h)(3) of the Office of Federal Procurement Policy Act (41 U.S.C. 433(h)(3)) is repealed.

205.

Notice to Congress of noncompetitive contracts awarded to foreign-owned companies in countries sponsoring terrorism

(a)

Notice to Congress required

If a contract is expected to be awarded by a department or agency of the Federal Government without the use of competitive procedures to a foreign-owned company that is based or has majority operations in a country described in subsection (b), the department or agency shall notify the appropriate congressional committees at least 30 days before awarding the contract, for purposes of providing Congress time to review the proposed contract and provide comments to the department or agency.

(b)

Foreign countries described

A country described in this subsection is a country the government of which the Secretary of State has determined, for purposes of section 6(j) of Export Administration Act of 1979, section 620A of the Foreign Assistance Act of 1961, section 40 of the Arms Export Control Act, or any other provision of law, is a government that has repeatedly provided support for acts of international terrorism.

206.

Prohibition on contracts to educational institutions not supporting U.S. defense efforts

An executive agency may not award a contract to an institution of higher education (including any subelement of such institution) if that institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents, the Secretary of a military department or the Secretary of Homeland Security from gaining access to campuses of the institution, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting, in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer. For purposes of this section, the term institution of higher education has the meaning provided in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001). The prohibition in this section shall not apply to an institution of higher education (or any subelement of that institution) if the Secretary of Defense determines that the institution of higher education involved has a longstanding policy of pacifism based on historical religious affiliation.

III

Promoting Integrity in Contracting

301.

Additional provisions relating to procurement officials

(a)

Elimination of loopholes that allow former Federal officials to accept compensation from contractors or related entities

Section 27(d) of the Office of Federal Procurement Policy Act (41 U.S.C. 423(d)) is amended—

(1)

in paragraph (1)—

(A)

by striking or consultant and inserting consultant, lawyer, or lobbyist; and

(B)

in subparagraph (C), by striking Federal agency— and inserting Federal agency or participated personally and substantially at a senior personnel level in—; and

(2)

by amending paragraph (2) to read as follows:

(2)

Paragraph (1) shall not prohibit a former official of a Federal agency from accepting compensation from any division or affiliate of a contractor that does not produce the same or similar products or services as the entity of the contractor that is responsible for the contract referred to in subparagraph (A), (B), or (C) of such paragraph if the agency’s designated ethics officer determines that the former official’s acceptance of compensation would not damage public confidence in the integrity of the procurement process.

.

(b)

Requirement for Federal Procurement Officers to Disclose Job Offers Made on behalf of Relatives

Section 27(c)(1) of such Act (41 U.S.C. 423(c)(1)) is amended by inserting after that official the following: or for a relative of that official (as defined in section 3110 of title 5, United States Code).

(c)

Requirement on award of government contracts to former employers

Section 27 of such Act (41 U.S.C. 423) is amended by adding at the end the following new subsection:

(i)

Prohibition on involvement by certain former contractor employees in procurements

An employee of the Federal Government who is a former employee of a contractor with the Federal Government shall not be personally and substantially involved with any award of a contract to the employee’s former employer, or in the administration of such contract at a senior personnel level, for the one-year period beginning on the date on which the employee leaves the employment of the contractor unless the employee has received a waiver from the agency’s designated ethics officer. In determining whether to issue a waiver, the designated ethics officer shall take into account the agency’s need for the involvement of the employee and the impact a waiver would have on public confidence in the integrity of the procurement process.

.

(d)

Regulations

Section 27 of such Act (41 U.S.C. 423) is further amended by adding at the end the following new subsection:

(j)

Regulations

The Administrator, in consultation with the Director of the Office of Government Ethics, shall—

(1)

promulgate regulations to carry out and ensure the enforcement of this section; and

(2)

monitor and investigate individual and agency compliance with this section.

.

(e)

Effective date

The amendments made by this section shall take effect on the date of the enactment of this Act.

302.

Report to Congress

(a)

Report

Not later than 180 days after the date of the enactment of this Act, the Director of the Office of Government Ethics shall submit a report to Congress that contains the Director's recommendations on requiring Government contractors that advise one or more Federal agencies on procurement policy, and requiring federally funded research and development centers, to comply with restrictions relating to personal financial interests, such as those that apply to Federal employees.

(b)

Definition

In this section—

(1)

The term Government contractor means any person (other than a Federal agency) with which a Federal agency has entered into a contract to acquire goods or services.

(2)

The term Federal agency means—

(A)

any executive department or independent establishment in the executive branch of the Government, including any wholly owned Government corporation; and

(B)

any establishment in the legislative or judicial branch of the Government (except the Senate, the House of Representatives, and the Architect of the Capitol and any activities under the Architect’s direction).

(3)

The term federally funded research and development center means a federally funded research and development center as identified by the National Science Foundation in accordance with the Federal Acquisition Regulation.

Passed the House of Representatives March 15, 2007.

Karen L. Haas,

Clerk.