Contracts: competition requirements
Except as provided in subsections (b), (c), and (g) and except in the case of procurement procedures otherwise expressly authorized by statute, the head of an agency in conducting a procurement for property or services—
shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this chapter and the Federal Acquisition Regulation; and
shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.
In determining the competitive procedure appropriate under the circumstances, the head of an agency—
shall solicit sealed bids if—
time permits the solicitation, submission, and evaluation of sealed bids;
the award will be made on the basis of price and other price-related factors;
it is not necessary to conduct discussions with the responding sources about their bids; and
there is a reasonable expectation of receiving more than one sealed bid; and
shall request competitive proposals if sealed bids are not appropriate under clause (A).
The head of an agency may provide for the procurement of property or services covered by this chapter using competitive procedures but excluding a particular source in order to establish or maintain an alternative source or sources of supply for that property or service if the head of the agency determines that to do so—
would increase or maintain competition and would likely result in reduced overall costs for such procurement, or for any anticipated procurement, of property or services;
would be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in case of a national emergency or industrial mobilization;
would be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center;
would ensure the continuous availability of a reliable source of supply of such property or service;
would satisfy projected needs for such property or service determined on the basis of a history of high demand for the property or service; or
in the case of medical supplies, safety supplies, or emergency supplies, would satisfy a critical need for such supplies.
The head of an agency may provide for the procurement of property or services covered by this section using competitive procedures, but excluding concerns other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C. 638, 644).
A contract awarded pursuant to the competitive procedures referred to in paragraphs (1) and (2) shall not be subject to the justification and approval required by subsection (f)(1).
A determination under paragraph (1) may not be made for a class of purchases or contracts.
The head of an agency may use procedures other than competitive procedures only when—
the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency;
the agency’s need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals;
it is necessary to award the contract to a particular source or sources in order (A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization, (B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a federally funded research and development center, or (C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before any court, administrative tribunal, or agency, or to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify;
the terms of an international agreement or a treaty between the United States and a foreign government or international organization, or the written directions of a foreign government reimbursing the agency for the cost of the procurement of the property or services for such government, have the effect of requiring the use of procedures other than competitive procedures;
subject to subsection (k), a statute expressly authorizes or requires that the procurement be made through another agency or from a specified source, or the agency’s need is for a brand-name commercial product for authorized resale;
the disclosure of the agency’s needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or
the head of the agency—
determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned, and
notifies the Congress in writing of such determination not less than 30 days before the award of the contract.
For the purposes of applying subsection (c)(1)—
in the case of a contract for property or services to be awarded on the basis of acceptance of an unsolicited research proposal, the property or services shall be considered to be available from only one source if the source has submitted an unsolicited research proposal that demonstrates a concept—
that is unique and innovative or, in the case of a service, for which the source demonstrates a unique capability of the source to provide the service; and
the substance of which is not otherwise available to the United States, and does not resemble the substance of a pending competitive procurement; and
in the case of a follow-on contract for the continued development or production of a major system or highly specialized equipment, or the continued provision of highly specialized services, such property or services may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in—
substantial duplication of cost to the United States which is not expected to be recovered through competition; or
unacceptable delays in fulfilling the agency’s needs.
The authority of the head of an agency under subsection (c)(7) may not be delegated.
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)—
may not exceed the time necessary—
to meet the unusual and compelling requirements of the work to be performed under the contract; and
for the agency to enter into another contract for the required goods or services through the use of competitive procedures; and
may not exceed one year unless the head of the agency entering into such contract determines that exceptional circumstances apply.
This paragraph applies to any contract in an amount greater than the simplified acquisition threshold.
The head of an agency using procedures other than competitive procedures to procure property or services by reason of the application of subsection (c)(2) or (c)(6) shall request offers from as many potential sources as is practicable under the circumstances.
Except as provided in paragraph (2) and paragraph (6), the head of an agency may not award a contract using procedures other than competitive procedures unless—
the contracting officer for the contract justifies the use of such procedures in writing and certifies the accuracy and completeness of the justification;
the justification is approved—
in the case of a contract for an amount exceeding $500,000 (but equal to or less than $10,000,000), by the competition advocate for the procuring activity (without further delegation) or by an official referred to in clause (ii) or (iii);
in the case of a contract for an amount exceeding $10,000,000 (but equal to or less than $75,000,000), by the head of the procuring activity (or the head of the procuring activity’s delegate designated pursuant to paragraph (5)(A)); or
in the case of a contract for an amount exceeding $75,000,000, by the senior procurement executive of the agency designated pursuant to section 1702(c) of title 41 (without further delegation) or in the case of the Under Secretary of Defense for Acquisition and Sustainment, acting in his capacity as the senior procurement executive for the Department of Defense, the Under Secretary’s delegate designated pursuant to paragraph (5)(B); and
any required notice has been published with respect to such contract pursuant to section 1708 of title 41 and all bids or proposals received in response to that notice have been considered by the head of the agency.
In the case of a procurement permitted by subsection (c)(2), the justification and approval required by paragraph (1) may be made after the contract is awarded. The justification and approval required by paragraph (1) is not required—
when a statute expressly requires that the procurement be made from a specified source;
when the agency’s need is for a brand-name commercial product for authorized resale;
in the case of a procurement permitted by subsection (c)(7);
in the case of a procurement conducted under (i) chapter 85 of title 41, or (ii) section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or
in the case of a procurement permitted by subsection (c)(4), but only if the head of the contracting activity prepares a document in connection with such procurement that describes the terms of an agreement or treaty, or the written directions, referred to in that subsection that have the effect of requiring the use of procedures other than competitive procedures.
The justification required by paragraph (1)(A) shall include—
a description of the agency’s needs;
an identification of the statutory exception from the requirement to use competitive procedures and a demonstration, based on the proposed contractor’s qualifications or the nature of the procurement, of the reasons for using that exception;
a determination that the anticipated cost will be fair and reasonable;
a description of the market survey conducted or a statement of the reasons a market survey was not conducted;
a listing of the sources, if any, that expressed in writing an interest in the procurement; and
a statement of the actions, if any, the agency may take to remove or overcome any barrier to competition before a subsequent procurement for such needs.
In no case may the head of an agency—
enter into a contract for property or services using procedures other than competitive procedures on the basis of the lack of advance planning or concerns related to the amount of funds available to the agency for procurement functions; or
procure property or services from another agency unless such other agency complies fully with the requirements of this chapter in its procurement of such property or services.
The restriction contained in clause (B) is in addition to, and not in lieu of, any other restriction provided by law.
The authority of the head of a procuring activity under paragraph (1)(B)(ii) may be delegated only to an officer or employee who—
if a member of the armed forces, is a general or flag officer; or
if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of brigadier general or rear admiral (lower half).
The authority of the Under Secretary of Defense for Acquisition and Sustainment under paragraph (1)(B)(iii) may be delegated only to—
an Assistant Secretary of Defense; or
with respect to the element of the Department of Defense (as specified in section 111(b) of this title), other than a military department, carrying out the procurement action concerned, an officer or employee serving in or assigned or detailed to that element who—
if a member of the armed forces, is serving in a grade above brigadier general or rear admiral (lower half); or
if a civilian, is serving in a position with a grade under the General Schedule (or any other schedule for civilian officers or employees) that is comparable to or higher than the grade of major general or rear admiral.
The justification and approval required by paragraph (1) is not required in the case of a Phase III award made pursuant to section 9(r)(4) of the Small Business Act (15 U.S.C. 638(r)(4)).
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 property and services for amounts not greater than the simplified acquisition threshold; and
special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial products or commercial services.
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).
In using simplified procedures, the head of an agency shall promote competition to the maximum extent practicable.
The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 1901(e) of title 41.
For the purposes of the following, purchases or contracts awarded after using procedures other than sealed-bid procedures shall be treated as if they were made with sealed-bid procedures:
Chapter 65 of title 41.
Sections 3141–3144, 3146, and 3147 of title 40.
The Secretary of Defense shall prescribe by regulation the manner in which the Department of Defense negotiates prices for supplies to be obtained through the use of procedures other than competitive procedures, as defined in section 2302(2) of this title.
The regulations required by paragraph (1) shall—
specify the incurred overhead a contractor may appropriately allocate to supplies referred to in that paragraph; and
require the contractor to identify those supplies which it did not manufacture or to which it did not contribute significant value.
Such regulations shall not apply to an item of supply included in a contract or subcontract for which the price is based on established catalog or market prices of commercial products sold in substantial quantities to the general public.
The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government’s requirements.
It is the policy of Congress that an agency named in section 2303(a) of this title should not be required by legislation to award a new contract to a specific non-Federal Government entity. It is further the policy of Congress that any program, project, or technology identified in legislation be procured through merit-based selection procedures.
A provision of law may not be construed as requiring a new contract to be awarded to a specified non-Federal Government entity unless that provision of law—
specifically refers to this subsection;
specifically identifies the particular non-Federal Government entity involved; and
specifically states that the award to that entity is required by such provision of law in contravention of the policy set forth in paragraph (1).
For purposes of this subsection, a contract is a new contract unless the work provided for in the contract is a continuation of the work performed by the specified entity under a preceding contract.
This subsection shall not apply with respect to any contract that calls upon the National Academy of Sciences to investigate, examine, or experiment upon any subject of science or art of significance to an agency named in section 2303(a) of this title and to report on such matters to the Congress or any agency of the Federal Government.
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.
In the case of a procurement permitted by subsection (c)(2), subparagraph (A) shall be applied by substituting “30 days” for “14 days”.
The documents shall be made available on the website of the agency and through a government-wide website selected by the Administrator for Federal Procurement Policy.
This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5.
Source
(Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85–800, § 8,Notes
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Historical and Revision Notes |
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1956 Act |
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Revised section | Source (U.S. Code) | Source (Statutes at Large) |
2304(a) 2304(b) | 41:151(c) (less proviso of clause (11) and proviso of clause (16)). 41:156(d). | Feb. 19, 1948, ch. 65, §§ 2(b) (less 1st sentence), (c), (e), 7(d), 8, 62 Stat. 21, 22, 24. |
2304(c) | 41:151(e). | |
2304(d) | 41:151(b) (less 1st sentence). | |
2304(e) | 41:151(c) (proviso of clause (11) and proviso of clause (16)). | |
2304(f) | 41:157. |
1958 Act
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1982 Act |
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|---|---|---|
Revised section | Source (U.S. Code) | Source (Statutes at Large) |
2304(a) (1st sentence) | 10:2304 (note). | Mar. 16, 1967, Pub. L. 90–5, § 304, 81 Stat. 6. |
2304(f)(1) | 10:2304(f)(1). | |
2304(i) | 10:2304 (note). | Sept. 21, 1977, Pub. L. 95–111, § 836, 91 Stat. 906. |
Codification
Amendments
Effective Date of 2018 Amendment
Effective Date of 1997 Amendment
Except as provided in paragraph (2), the amendments made by this section [amending this section, former section 2302c of this title, section 637 of Title 15, Commerce and Trade, section 1501 of former Title 40, Public Buildings, Property, and Works, and sections 252c, 253, 416, 426, and 427 of Title 41, Public Contracts, repealing section 426a of Title 41, amending provisions set out as a note under section 413 of Title 41, and repealing provisions set out as a note under section 426a of Title 41] shall take effect 180 days after the date of the enactment of this Act [
The repeal made by subsection (c) of this section [repealing provisions set out as a note under section 426a of Title 41] shall take effect on the date of the enactment of this Act.”
Effective Date of 1996 Amendment
Effective Date of 1994 Amendment
Effective Date of 1986 Amendment
The amendment made by subsection (a) [amending this section] shall apply with respect to contracts for which solicitations are issued after the end of the 180-day period beginning on the date of the enactment of this Act [
The amendment made by subsection (b) [amending this section] shall apply with respect to contracts awarded on the basis of unsolicited research proposals after the end of the 180-day period beginning on the date of the enactment of this Act.
The amendments made by subsection (c) [amending this section] shall apply with respect to follow-on contracts awarded after the end of the 180-day period beginning on the date of the enactment of this Act.”
Effective Date of 1985 Amendment
Effective Date of 1984 Amendment
Effective Date of 1980 Amendment
Effective Date of 1962 Amendment
Effective Date of 1958 Amendment
Construction of 1994 Amendment
Construction of 1984 Amendment
Modification of Justification and Approval Requirement for Certain Department of Defense Contracts
Modification of Justification and Approval Requirement.—
Notwithstanding section 811 of the National Defense Authorization Act for Fiscal Year 2010 (Public Law 111–84; 123 Stat. 2405) [41 U.S.C. 3304 note]—
no justification and approval is required under such section for a sole-source contract awarded by the Department of Defense in a covered procurement for an amount not exceeding $100,000,000; and
for purposes of subsections (a)(2) and (c)(3)(A) of such section, the appropriate official designated to approve the justification for a sole-source contract awarded by the Department of Defense in a covered procurement exceeding $100,000,000 is the official designated in section 2304(f)(1)(B)(ii) of title 10, United States Code.
Guidance.—
Not later than 90 days after the date of the enactment of this Act [
Comptroller General Review.—
Data tracking and collection.—
The Department of Defense shall track the use of the authority as modified by subsection (a) and make the data available to the Comptroller General for purposes of the report required under paragraph (2).
Report.—
Not later than
a review of the financial effect of the change to the justification and approval requirement in subsection (a) on the native corporations and businesses and associated native communities;
a description of the nature and extent of contracts excluded from the justification and approval requirement by subsection (a); and
other matters the Comptroller General deems appropriate.”
Pilot Program on Payment of Costs for Denied Government Accountability Office Bid Protests
Pilot Program Required.—
The Secretary of Defense shall carry out a pilot program to determine the effectiveness of requiring contractors to reimburse the Department of Defense for costs incurred in processing covered protests.
Duration.—
The pilot program shall—
begin on the date that is two years after the date of the enactment of this Act [
end on the date that is five years after the date of the enactment of this Act.
Report.—
Not later than 90 days after the date on which the pilot program under subsection (a) ends, the Secretary shall provide a report to the Committees on Armed Services of the House of Representatives and the Senate assessing the feasibility of making permanent such pilot program.
Covered Protest Defined.—
In this section, the term ‘covered protest’ means a bid protest that was—
denied in an opinion issued by the Government Accountability Office;
filed by a party with revenues in excess of $250,000,000 (based on fiscal year 2017 constant dollars) during the previous year; and
filed on or after
Pilot Program for Streamlined Technology Transition From the SBIR and STTR Programs of the Department of Defense
Definitions.—
In this section—
the terms ‘commercialization’, ‘Federal agency’, ‘Phase I’, ‘Phase II’, ‘Phase III’, ‘SBIR’, and ‘STTR’ have the meanings given those terms in section 9(e) of the Small Business Act (15 U.S.C. 638(e));
the term ‘covered small business concern’ means—
a small business concern that completed a Phase II award under the SBIR or STTR program of the Department; or
a small business concern that—
completed a Phase I award under the SBIR or STTR program of the Department; and
a contracting officer for the Department recommended for inclusion in a multiple award contract described in subsection (b);
[sic] the term ‘Department’ means the Department of Defense;
[sic] the term ‘military department’ has the meaning given the term in section 101 of title 10, United States Code;
the term ‘multiple award contract’ has the meaning given the term in section 3302(a) of title 41, United States Code;
the term ‘pilot program’ means the pilot program established under subsection (b); and
the term ‘small business concern’ has the meaning given the term in section 3 of the Small Business Act (15 U.S.C. 632).
Establishment.—
Not later than 180 days after the date of enactment of this Act [
Waiver of Competition in Contracting Act Requirements.—
The Secretary of Defense may establish procedures to waive provisions of section 2304 of title 10, United States Code, for purposes of carrying out the pilot program.
Use of Contract Vehicle.—
A multiple award contract described in subsection (b) may be used by any military department or component of the Department.
Termination.—
The pilot program established under this section shall terminate on
Rule of Construction.—
Nothing in this section shall be construed to prevent the commercialization of products and services produced by a small business concern under an SBIR or STTR program of a Federal agency through—
direct awards for Phase III of an SBIR or STTR program; or
any other contract vehicle.”
Contracts for Studies, Analysis, or Consulting Services Entered Into Without Competition on the Basis of an Unsolicited Proposal
as a result of thorough technical evaluation, only one source is found fully qualified to perform the proposed work;
the purpose of the contract is to explore an unsolicited proposal which offers significant scientific or technological promise, represents the product of original thinking, and was submitted in confidence by one source; or
the purpose of the contract is to take advantage of unique and significant industrial accomplishment by a specific concern, or to insure that a new product or idea of a specific concern is given financial support: Provided, That this limitation shall not apply to contracts in an amount of less than $25,000, contracts related to improvements of equipment that is in development or production, or contracts as to which a civilian official of the Department of Defense, who has been confirmed by the Senate, determines that the award of such contract is in the interest of the national defense.”
Mitigating Potential Unfair Competitive Advantage of Technical Advisors to Acquisition Programs
Competition for Religious Services Contracts
Matters Relating to Reverse Auctions
In General.—
Not later than 180 days after the date of the enactment of this Act [
single bid contracts may not be entered into resulting from reverse auctions unless compliant with existing Federal regulations and Department of Defense memoranda providing guidance on single bid offers;
all reverse auctions provide offerors with the ability to submit revised bids throughout the course of the auction;
if a reverse auction is conducted by a third party—
inherently governmental functions are not performed by private contractors, including by the third party; and
past performance or financial responsibility information created by the third party is made available to offerors; and
reverse auctions resulting in design-build military construction contracts specifically authorized in law are prohibited.
Training.—
Not later than 180 days after the date of the enactment of this Act, the President of the Defense Acquisition University shall establish comprehensive training available for contract specialists in the Department of Defense on the use of reverse auctions.
Design-Build Defined.—
In this section, the term ‘design-build’ means procedures used for the selection of a contractor on the basis of price and other evaluation criteria to perform, in accordance with the provisions of a firm fixed-price contract, both the design and construction of a facility using performance specifications supplied by the Secretary of Defense.”
Review and Justification of Pass-Through Contracts
consider the availability of alternative contract vehicles and the feasibility of contracting directly with a subcontractor or subcontractors that will perform the bulk of the work;
make a written determination that the contracting approach selected is in the best interest of the Government; and
document the basis for such determination.”
Requirements for Information Relating to Supply Chain Risk
Authority.—
Subject to subsection (b), the head of a covered agency may—
carry out a covered procurement action; and
limit, notwithstanding any other provision of law, in whole or in part, the disclosure of information relating to the basis for carrying out a covered procurement action.
Determination and Notification.—
The head of a covered agency may exercise the authority provided in subsection (a) only after—
obtaining a joint recommendation by the Under Secretary of Defense for Acquisition and Sustainment and the Chief Information Officer of the Department of Defense, on the basis of a risk assessment by the Under Secretary of Defense for Intelligence [now Under Secretary of Defense for Intelligence and Security], that there is a significant supply chain risk to a covered system;
making a determination in writing, in unclassified or classified form, with the concurrence of the Under Secretary of Defense for Acquisition and Sustainment, that—
use of the authority in subsection (a)(1) is necessary to protect national security by reducing supply chain risk;
less intrusive measures are not reasonably available to reduce such supply chain risk; and
in a case where the head of the covered agency plans to limit disclosure of information under subsection (a)(2), the risk to national security due to the disclosure of such information outweighs the risk due to not disclosing such information; and
providing a classified or unclassified notice of the determination made under paragraph (2) to the appropriate congressional committees, which notice shall include—
the information required by section 2304(f)(3) of title 10, United States Code;
the joint recommendation by the Under Secretary of Defense for Acquisition and Sustainment and the Chief Information Officer of the Department of Defense as specified in paragraph (1);
a summary of the risk assessment by the Under Secretary of Defense for Intelligence [now Under Secretary of Defense for Intelligence and Security] that serves as the basis for the joint recommendation specified in paragraph (1); and
a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why they were not reasonably available to reduce supply chain risk.
Delegation.—
The head of a covered agency may not delegate the authority provided in subsection (a) or the responsibility to make a determination under subsection (b) to an official below the level of the service acquisition executive for the agency concerned.
Limitation on Disclosure.—
If the head of a covered agency has exercised the authority provided in subsection (a)(2) to limit disclosure of information—
no action undertaken by the agency head under such authority shall be subject to review in a bid protest before the Government Accountability Office or in any Federal court; and
the agency head shall—
notify appropriate parties of a covered procurement action and the basis for such action only to the extent necessary to effectuate the covered procurement action;
notify other Department of Defense components or other Federal agencies responsible for procurements that may be subject to the same or similar supply chain risk, in a manner and to the extent consistent with the requirements of national security; and
ensure the confidentiality of any such notifications.
Definitions.—
In this section:
Head of a covered agency.—
The term ‘head of a covered agency’ means each of the following:
The Secretary of Defense.
The Secretary of the Army.
The Secretary of the Navy.
The Secretary of the Air Force.
Covered procurement action.—
The term ‘covered procurement action’ means any of the following actions, if the action takes place in the course of conducting a covered procurement:
The exclusion of a source that fails to meet qualification standards established in accordance with the requirements of section 2319 of title 10, United States Code, for the purpose of reducing supply chain risk in the acquisition of covered systems.
The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.
The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor for a covered system to exclude a particular source from consideration for a subcontract under the contract.
Covered procurement.—
The term ‘covered procurement’ means—
a source selection for a covered system or a covered item of supply involving either a performance specification, as provided in section 2305(a)(1)(C)(ii) of title 10, United States Code, or an evaluation factor, as provided in section 2305(a)(2)(A) of such title, relating to supply chain risk;
the consideration of proposals for and issuance of a task or delivery order for a covered system or a covered item of supply, as provided in section 2304c(d)(3) of title 10, United States Code, where the task or delivery order contract concerned includes a contract clause establishing a requirement relating to supply chain risk; or
any contract action involving a contract for a covered system or a covered item of supply where such contract includes a clause establishing requirements relating to supply chain risk.
Supply chain risk.—
The term ‘supply chain risk’ means the risk that an adversary may sabotage, maliciously introduce unwanted function, or otherwise subvert the design, integrity, manufacturing, production, distribution, installation, operation, or maintenance of a covered system so as to surveil, deny, disrupt, or otherwise degrade the function, use, or operation of such system.
Covered system.—
The term ‘covered system’ means a national security system, as that term is defined in [former] section 3542(b) of title 44, United States Code [see now 44 U.S.C. 3552(b)].
Covered item of supply.—
The term ‘covered item of supply’ means an item of information technology (as that term is defined in section 11101 of title 40, United States Code) that is purchased for inclusion in a covered system, and the loss of integrity of which could result in a supply chain risk for a covered system.
Appropriate congressional committees.—
The term ‘appropriate congressional committees’ means—
in the case of a covered system included in the National Intelligence Program or the Military Intelligence Program, the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and
in the case of a covered system not otherwise included in subparagraph (A), the congressional defense committees.
Effective Date.—
The requirements of this section shall take effect on the date that is 180 days after the date of the enactment of this Act [
contracts that are awarded on or after such date; and
task and delivery orders that are issued on or after such date pursuant to contracts that are awarded before, on, or after such date.
Verification of Effective Implementation.—
Criteria and data collection to measure effectiveness.—
The Secretary of Defense shall—
establish criteria for measuring the effectiveness of the authority provided by this section; and
collect data to evaluate the implementation of this section using such criteria.
Reports.—
The Secretary shall submit to the appropriate congressional committees—
not later than
not later than
Publication of Notification of Bundling of Contracts of the Department of Defense
Requirement to Publish Notification for Bundling.—
A contracting officer of the Department of Defense carrying out a covered acquisition shall publish a notification consistent with the requirements of paragraph (c)(2) of subpart 10.001 of the Federal Acquisition Regulation on the website known as FedBizOpps.gov (or any successor site) at least 30 days prior to the release of a solicitation for such acquisition and, if the agency has determined that measurably substantial benefits are expected to be derived as a result of bundling such acquisition, shall include in the notification a brief description of the benefits.
Covered Acquisition Defined.—
In this section, the term ‘covered acquisition’ means an acquisition that is—
funded entirely using funds of the Department of Defense; and
covered by subpart 7.107 of the Federal Acquisition Regulation (relating to acquisitions involving bundling).
Construction.—
Notification.—
Nothing in this section shall be construed to alter the responsibility of a contracting officer to provide the notification referred to in subsection (a) with respect to a covered acquisition, or otherwise provide notification, to any party concerning such acquisition under any other requirement of law or regulation.
Disclosure.—
Nothing in this section shall be construed to require the public availability of information that is exempt from public disclosure under section 552(b) of title 5, United States Code, or is otherwise restricted from public disclosure by law or Executive order.
Issuance of solicitation.—
Nothing in this section shall be construed to require a contracting officer to delay the issuance of a solicitation in order to meet the requirements of subsection (a) if the expedited issuance of such solicitation is otherwise authorized under any other requirement of law or regulation.”
Small Arms Acquisition Strategy and Requirements Review
Secretary of Defense Report.—
Not later than 120 days after the date of the enactment of this Act [
An assessment of Department of Defense-wide small arms requirements in terms of capabilities and quantities, based on an analysis of the small arms capability assessments of each military department.
An assessment of plans for small arms research, development, and acquisition programs to meet the requirements identified under paragraph (1).
An assessment of capabilities, capacities, and risks in the small arms industrial base of the United States to meet the requirements of the Department of Defense for pistols, carbines, rifles, and light, medium, and heavy machine guns during the 20 years following the date of the report.
An assessment of the costs, benefits, and risks of full and open competition for the procurement of non-developmental pistols and carbines that are not technically compatible with the M9 pistol or M4 carbine to meet the requirements identified under paragraph (1).
Competition for a New Individual Weapon.—
Competition required.—
If the small arms capabilities based assessments by the Army identify gaps in small arms capabilities and the Secretary of the Army determines that a new individual weapon is required to address such gaps, the Secretary shall procure the new individual weapon using full and open competition as described in paragraph (2).
Full and open competition.—
The full and open competition described in this paragraph is competition among all responsible manufacturers that—
is open to all developmental item solutions and non-developmental item solutions; and
provides for the award of a contract based on selection criteria that reflect the key performance parameters and attributes identified in a service requirements document approved by the Army.
Small Arms Defined.—
In this section, the term ‘small arms’—
means man-portable or vehicle-mounted light weapons, designed primarily for use by individual military personnel for anti-personnel use; and
includes pistols, carbines, rifles, and light, medium, and heavy machine guns.”
Implementation of Statutory Requirements Regarding the National Technology and Industrial Base
Plan for Restricting Government-Unique Contract Clauses on Commercial Contracts
Plan.—
The Under Secretary of Defense for Acquisition and Sustainment shall develop and implement a plan to minimize the number of government-unique contract clauses used in commercial contracts by restricting the clauses to the following:
Government-unique clauses authorized by law or regulation.
Any additional clauses that are relevant and necessary to a specific contract.
Commercial Contract.—
In this section:
The term ‘commercial contract’ means a contract awarded by the Federal Government for the procurement of a commercial product or a commercial service.
The term ‘commercial product’ has the meaning provided by section 103 of title 41, United States Code.
The term ‘commercial service’ has the meaning provided by section 103a of title 41, United States Code.”
Telephone Services for Military Personnel Serving In Combat Zones
Competitive Procedures Required.—
Requirement.—
When the Secretary of Defense considers it necessary to provide morale, welfare, and recreation telephone services for military personnel serving in combat zones, the Secretary shall use competitive procedures when entering into a contract to provide those services.
Review and determination.—
Before soliciting bids or proposals for new contracts, or considering extensions to existing contracts, to provide morale, welfare, and recreation telephone services for military personnel serving in combat zones, the Secretary shall review and determine whether it is in the best interest of the Department to require bids or proposals, or adjustments for the purpose of extending a contract, to include options that minimize the cost of the telephone services to individual users while providing individual users the flexibility of using phone cards from other than the prospective contractor.
Effective Date.—
Requirement.—
Subsection (a)(1) shall apply to any new contract to provide morale, welfare, and recreation telephone services for military personnel serving in combat zones that is entered into after the date of the enactment of this Act [
Review and determination.—
Subsection (a)(2) shall apply to any new contract or extension to an existing contract to provide morale, welfare, and recreation telephone services for military personnel serving in combat zones that is entered into or agreed upon after the date of the enactment of this Act.
Morale, Welfare, and Recreation Telephone Services Defined.—
In this section, the term ‘morale, welfare, and recreation telephone services’ means unofficial telephone calling center services supporting calling centers provided by the Army and Air Force Exchange Service, Navy Exchange Service Command, Marine Corps exchanges, or any other nonappropriated fund instrumentality of the United States under the jurisdiction of the Armed Forces which is conducted for the comfort, pleasure, contentment, or physical or mental improvement of members of the Armed Forces.”
Competition for Procurement of Small Arms Supplied to Iraq and Afghanistan
Competition Requirement.—
For the procurement of pistols and other weapons described in subsection (b), the Secretary of Defense shall ensure, consistent with the provisions of section 2304 of title 10, United States Code, that—
full and open competition is obtained to the maximum extent practicable;
no responsible United States manufacturer is excluded from competing for such procurements; and
products manufactured in the United States are not excluded from the competition.
Procurements Covered.—
This section applies to the procurement of the following:
Pistols and other weapons less than 0.50 caliber for assistance to the Army of Iraq, the Iraqi Police Forces, and other Iraqi security organizations.
Pistols and other weapons less than 0.50 caliber for assistance to the Army of Afghanistan, the Afghani Police Forces, and other Afghani security organizations.”
Internal Controls for Procurements on Behalf of the Department of Defense
Inclusion of Additional Non-Defense Agencies in Review.—
The covered non-defense agencies specified in subsection (c) of this section shall be considered covered non-defense agencies as defined in subsection (i) of section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2326) [set out below] for purposes of such section.
Deadlines and Applicability for Additional Non-Defense Agencies.—
For each covered non-defense agency specified in subsection (c) of this section, section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364; 120 Stat. 2326) shall apply to such agency as follows:
The review and determination required by subsection (a)(1) of such section shall be completed by not later than
The review and determination required by subsection (a)(2) of such section, if necessary, shall be completed by not later than
The memorandum of understanding required by subsection (c)(1) of such section shall be entered into by not later than 60 days after the date of the enactment of this Act [
The limitation specified in subsection (d)(1) of such section shall apply after
The limitation specified in subsection (d)(2) of such section shall apply after
The limitation required by subsection (d)(3) of such section shall commence, if necessary, on the date that is 60 days after the date of the enactment of this Act.
Definition of Covered Non-Defense Agency.—
In this section, the term ‘covered non-defense agency’ means each of the following:
The Department of Commerce.
The Department of Energy.”
Inspectors General Reviews and Determinations.—
In general.—
For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such covered non-defense agency may jointly—
review—
the procurement policies, procedures, and internal controls of such covered non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such covered non-defense agency; and
the administration of such policies, procedures, and internal controls; and
determine in writing whether such covered non-defense agency is or is not compliant with applicable procurement requirements.
Separate reviews and determinations.—
The Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency may by joint agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate government-wide acquisition contracts, of the covered non-defense agency. If such separate reviews are conducted, the Inspectors General shall make a separate determination under paragraph (1)(B) with respect to each such separate review.
Memoranda of understanding for reviews and determinations.—
Not later than one year before a review and determination is to be performed under this subsection with respect to a covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of the covered non-defense agency may enter into a memorandum of understanding with each other to carry out such review and determination.
Termination of non-compliance determination.—
If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency determine, pursuant to paragraph (1)(B), that a covered non-defense agency is not compliant with applicable procurement requirements, the Inspectors General may terminate such a determination effective on the date on which the Inspectors General jointly—
determine that the non-defense agency is compliant with applicable procurement requirements; and
notify the Secretary of Defense of that determination.
Resolution of disagreements.—
If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency are unable to agree on a joint determination under this subsection, a determination by the Inspector General of the Department of Defense under this subsection shall be conclusive for the purposes of this section.
Limitation on Procurements on Behalf of Department of Defense.—
Except as provided in paragraph (2), an acquisition official of the Department of Defense may place an order, make a purchase, or otherwise procure property or services for the Department of Defense in excess of the simplified acquisition threshold through a non-defense agency only if—
in the case of a procurement by any non-defense agency in any fiscal year, the head of the non-defense agency has certified that the non-defense agency will comply with applicable procurement requirements for the fiscal year;
in the case of—
a procurement by a covered non-defense agency in a fiscal year for which a memorandum of understanding is to be entered into under subsection (a)(3), the Inspector General of the Department of Defense and the Inspector General of the covered non-defense agency have entered into such a memorandum of understanding; or
a procurement by a covered non-defense agency in a fiscal year following the Inspectors General review and determination provided for under subsection (a), the Inspectors General have determined that a covered non-defense agency is compliant with applicable procurement requirements or have terminated a prior determination of non-compliance in accordance with subsection (a)(4); and
the procurement is not otherwise prohibited by section 817 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364) or section 811 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163) [see notes below].
Exception for procurements of necessary property and services.—
In general.—
The limitation in paragraph (1) shall not apply to the procurement of property and services on behalf of the Department of Defense by a non-defense agency during any fiscal year for which there is in effect a written determination of the Under Secretary of Defense for Acquisition and Sustainment that it is necessary in the interest of the Department of Defense to procure property and services through the non-defense agency during such fiscal year.
Scope of particular exception.—
A written determination with respect to a non-defense agency under subparagraph (A) shall apply to any category of procurements through the non-defense agency that is specified in the determination.
Treatment of procurements under joint programs with intelligence community.—
For purposes of this subsection, a contract entered into by a non-defense agency that is an element of the intelligence community (as defined in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4))) for the performance of a joint program conducted to meet the needs of the Department of Defense and the non-defense agency shall not be considered a procurement of property or services for the Department of Defense through a non-defense agency.
Guidance on Interagency Contracting.—
Requirement.—
Not later than 180 days after the date of enactment of this Act [
Matters covered.—
The guidance required by paragraph (1) shall address the circumstances in which it is appropriate for Department of Defense acquisition officials to procure goods or services through a contract entered into by an agency outside the Department of Defense. At a minimum, the guidance shall address—
the circumstances in which it is appropriate for such acquisition officials to use direct acquisitions;
the circumstances in which it is appropriate for such acquisition officials to use assisted acquisitions;
the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items unique to the Department of Defense and the procedures for approving such interagency contracting;
the circumstances in which it is appropriate for such acquisition officials to use interagency contracting to acquire items that are already being provided under a contract awarded by the Department of Defense;
tools that should be used by such acquisition officials to determine whether items are already being provided under a contract awarded by the Department of Defense; and
procedures for ensuring that applicable procurement requirements are identified and communicated to outside agencies involved in interagency contracting.
Compliance With Applicable Procurement Requirements.—
Except as provided in paragraph (2), for the purposes of this section, a non-defense agency is compliant with applicable procurement requirements if the procurement policies, procedures, and internal controls of the non-defense agency applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure the compliance of the non-defense agency with the following:
The Federal Acquisition Regulation and other laws and regulations that apply to procurements of property and services by Federal agencies.
Laws and regulations (including applicable Department of Defense financial management regulations) that apply to procurements of property and services made by the Department of Defense through other Federal agencies.
In the case of the procurement of property or services on behalf of the Department of Defense through the Work for Others program of the Department of Energy, the laws and regulations applicable under paragraph (1)(B) are the Department of Energy Acquisition Regulations, pertinent interagency agreements, and Department of Defense and Department of Energy policies related to the Work for Others program.
Treatment of Procurements for Fiscal Year Purposes.—
For the purposes of this section, a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for the procurement in that fiscal year.
Definitions.—
In this section:
Non-defense agency.—
The term ‘non-defense agency’ means any department or agency of the Federal Government other than the Department of Defense. Such term includes a covered non-defense agency.
Covered non-defense agency.—
The term ‘covered non-defense agency’ means each of the following:
The General Services Administration.
The Department of the Interior.
The Department of Veterans Affairs.
The National Institutes of Health.
The Department of Commerce.
The Department of Energy.
Government-wide acquisition contract.—
The term ‘government-wide acquisition contract’ means a task or delivery order contract that—
is entered into by a non-defense agency; and
may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government.
Simplified acquisition threshold.—
The term ‘simplified acquisition threshold’ has the meaning provided by section 2302(7) of title 10, United States Code.
Interagency contracting.—
The term ‘interagency contracting’ means the exercise of the authority under section 1535 of title 31, United States Code, or other statutory authority, for Federal agencies to purchase goods and services under contracts entered into or administered by other agencies.
Acquisition official.—
The term ‘acquisition official’, with respect to the Department of Defense, means—
a contracting officer of the Department of Defense; or
any other Department of Defense official authorized to approve a direct acquisition or an assisted acquisition on behalf of the Department of Defense.
Direct acquisition.—
The term ‘direct acquisition’, with respect to the Department of Defense, means the type of interagency contracting through which the Department of Defense orders an item or service from a government-wide acquisition contract maintained by a non-defense agency.
Assisted acquisition.—
The term ‘assisted acquisition’, with respect to the Department of Defense, means the type of interagency contracting through which acquisition officials of a non-defense agency award a contract or task or delivery order for the procurement of goods or services on behalf of the Department of Defense.”
Inspector General Reviews and Determinations.—
In general.—
For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such non-defense agency shall, not later than
review—
the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and
the administration of those policies, procedures, and internal controls; and
determine in writing whether—
such non-defense agency is compliant with defense procurement requirements;
such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements;
neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency; or
such non-defense agency is not compliant with defense procurement requirements to such an extent that the interests of the Department of Defense are at risk in procurements conducted by such non-defense agency.
Actions following certain determinations.—
If the Inspectors General determine under paragraph (1) that a conclusion stated in clause (ii), (iii), or (iv) of subparagraph (B) of that paragraph is correct in the case of a covered non-defense agency, such Inspectors General shall, not later than
conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency’s procurement of property or services on behalf of the Department of Defense in fiscal year 2007; and
determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.
Compliance With Defense Procurement Requirements.—
For the purposes of this section, a covered non-defense agency is compliant with defense procurement requirements if such non-defense agency’s procurement policies, procedures, and internal controls applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure such non-defense agency’s compliance with the requirements of laws and regulations that apply to procurements of property and services made directly by the Department of Defense.
Memoranda of Understanding Between Inspectors General.—
In general.—
Not later than 60 days after the date of the enactment of this Act [
Scope of memoranda.—
The Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency may by mutual agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate governmentwide acquisition contracts, of such non-defense agency. In any case where such separate reviews are conducted, the Inspectors General shall make separate determinations under paragraph (1) or (2) of subsection (a), as applicable, with respect to each such separate review.
Limitations on Procurements on Behalf of Department of Defense.—
Limitation during review period.—
After
Limitation after review period.—
After
Limitation following failure to reach mou.—
Commencing on the date that is 60 days after the date of the enactment of this Act [
Exception From Applicability of Limitations.—
Exception.—
No limitation applies under subsection (d) with respect to the procurement of property and services on behalf of the Department of Defense by a covered non-defense agency during any period that there is in effect a determination of the Under Secretary of Defense for Acquisition and Sustainment, made in writing, that it is necessary in the interest of the Department of Defense to continue to procure property and services through such non-defense agency.
Applicability of determination.—
A written determination with respect to a covered non-defense agency under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect.
Termination of Applicability of Limitations.—
Subsection (d) shall cease to apply to a covered non-defense agency on the date on which the Inspector General of the Department of Defense and the Inspector General of such non-defense agency jointly—
determine that such non-defense agency is compliant with defense procurement requirements; and
notify the Secretary of Defense of that determination.
Identification of Procurements Made During a Particular Fiscal Year.—
For the purposes of subsection (a), a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for that procurement in that fiscal year.
Resolution of Disagreements.—
If the Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency are unable to agree on a joint determination under subsection (a) or (f), a determination by the Inspector General of the Department of Defense under such subsection shall be conclusive for the purposes of this section.
Definitions.—
In this section:
The term ‘covered non-defense agency’ means each of the following:
The Department of Veterans Affairs.
The National Institutes of Health.
The term ‘governmentwide acquisition contract’, with respect to a covered non-defense agency, means a task or delivery order contract that—
is entered into by the non-defense agency; and
may be used as the contract under which property or services are procured for one or more other departments or agencies of the Federal Government.”
Inspector General Reviews and Determinations.—
In general.—
For each covered non-defense agency, the Inspector General of the Department of Defense and the Inspector General of such non-defense agency shall, not later than
review—
the procurement policies, procedures, and internal controls of such non-defense agency that are applicable to the procurement of property and services on behalf of the Department by such non-defense agency; and
the administration of those policies, procedures, and internal controls; and
determine in writing whether—
such non-defense agency is compliant with defense procurement requirements;
such non-defense agency is not compliant with defense procurement requirements, but has a program or initiative to significantly improve compliance with defense procurement requirements; or
neither of the conclusions stated in clauses (i) and (ii) is correct in the case of such non-defense agency.
Actions following certain determinations.—
If the Inspectors General determine under paragraph (1) that the conclusion stated in clause (ii) or (iii) of subparagraph (B) of that paragraph is correct in the case of a covered non-defense agency, such Inspectors General shall, not later than
conduct a second review, as described in subparagraph (A) of that paragraph, regarding such non-defense agency’s procurement of property or services on behalf of the Department of Defense in fiscal year 2006; and
determine in writing whether such non-defense agency is or is not compliant with defense procurement requirements.
Compliance With Defense Procurement Requirements.—
For the purposes of this section, a covered non-defense agency is compliant with defense procurement requirements if such non-defense agency’s procurement policies, procedures, and internal controls applicable to the procurement of products and services on behalf of the Department of Defense, and the manner in which they are administered, are adequate to ensure such non-defense agency’s compliance with the requirements of laws and regulations that apply to procurements of property and services made directly by the Department of Defense.
Memoranda of Understanding Between Inspectors General.—
In general.—
Not later than 60 days after the date of the enactment of this Act [
Scope of memoranda.—
The Inspector General of the Department of Defense and the Inspector General of a covered non-defense agency may by mutual agreement conduct separate reviews of the procurement of property and services on behalf of the Department of Defense that are conducted by separate business units, or under separate governmentwide acquisition contracts, of such non-defense agency. In any case where such separate reviews are conducted, the Inspectors General shall make separate determinations under paragraph (1) or (2) of subsection (a), as applicable, with respect to each such separate review.
Limitations on Procurements on Behalf of Department of Defense.—
Limitation during review period.—
After
Limitation after review period.—
After
Limitation following failure to reach mou.—
Commencing on the date that is 60 days after the date of the enactment of this Act [
Exception From Applicability of Limitations.—
Exception.—
No limitation applies under subsection (d) with respect to the procurement of property and services on behalf of the Department of Defense by a covered non-defense agency during any period that there is in effect a determination of the Under Secretary of Defense for Acquisition and Sustainment, made in writing, that it is necessary in the interest of the Department of Defense to continue to procure property and services through such non-defense agency.
Applicability of determination.—
A written determination with respect to a covered non-defense agency under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect.
Termination of Applicability of Limitations.—
Subsection (d) shall cease to apply to a covered non-defense agency on the date on which the Inspector General of the Department of Defense and the Inspector General of such non-defense agency jointly—
determine that such non-defense agency is compliant with defense procurement requirements; and
notify the Secretary of Defense of that determination.
Identification of Procurements Made During a Particular Fiscal Year.—
For the purposes of subsection (a), a procurement shall be treated as being made during a particular fiscal year to the extent that funds are obligated by the Department of Defense for that procurement in that fiscal year.
Definitions.—
In this section:
The term ‘covered non-defense agency’ means each of the following:
The Department of the Treasury.
The Department of the Interior.
The National Aeronautics and Space Administration.
The term ‘governmentwide acquisition contract’, with respect to a covered non-defense agency, means a task or delivery order contract that—
is entered into by the non-defense agency; and
may be used as the contract under which property or services are procured for 1 or more other departments or agencies of the Federal Government.”
Panel on Contracting Integrity
Employment of State Residents in States Having Unemployment Rate in Excess of National Average
Review and Demonstration Project Relating to Contractor Employees
General Review.—
The Secretary of Defense shall conduct a review of policies, procedures, practices, and penalties of the Department of Defense relating to employees of defense contractors for purposes of ensuring that the Department of Defense is in compliance with Executive Order No. 12989 [8 U.S.C. 1324a note] (relating to a prohibition on entering into contracts with contractors that are not in compliance with the Immigration and Nationality Act [8 U.S.C. 1101 et seq.]).
In conducting the review, the Secretary shall—
identify potential weaknesses and areas for improvement in existing policies, procedures, practices, and penalties;
develop and implement reforms to strengthen, upgrade, and improve policies, procedures, practices, and penalties of the Department of Defense and its contractors; and
review and analyze reforms developed pursuant to this paragraph to identify for purposes of national implementation those which are most efficient and effective.
The review under this subsection shall be completed not later than 180 days after the date of the enactment of this Act [
Demonstration Project.—
The Secretary of Defense shall conduct a demonstration project in accordance with this section, in one or more regions selected by the Secretary, for purposes of promoting greater contracting opportunities for contractors offering effective, reliable staffing plans to perform defense contracts that ensure all contract personnel employed for such projects, including management employees, professional employees, craft labor personnel, and administrative personnel, are lawful residents or persons properly authorized to be employed in the United States and properly qualified to perform services required under the contract. The demonstration project shall focus on contracts for construction, renovation, maintenance, and repair services for military installations.
Demonstration Project Procurement Procedures.—
As part of the demonstration project under subsection (b), the Secretary of Defense may conduct a competition in which there is a provision in contract solicitations and request for proposal documents to require significant weight or credit be allocated to—
reliable, effective workforce programs offered by prospective contractors that provide background checks and other measures to ensure the contractor is in compliance with the Immigration and Nationality Act; and
reliable, effective project staffing plans offered by prospective contractors that specify for all contract employees (including management employees, professionals, and craft labor personnel) the skills, training, and qualifications of such persons and the labor supply sources and hiring plans or procedures used for employing such persons.
Implementation of Demonstration Project.—
The Secretary of Defense shall begin operation of the demonstration project required under this section after completion of the review under subsection (a), but in no event later than 270 days after the date of the enactment of this Act.
Report on Demonstration Project.—
Not later than six months after award of a contract under the demonstration project, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report setting forth a review of the demonstration project and recommendations on the actions, if any, that can be implemented to ensure compliance by the Department of Defense with Executive Order No. 12989.
Definition.—
In this section, the term ‘military installation’ means a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the Department of Defense, including any leased facility, which is located within any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, or Guam. Such term does not include any facility used primarily for civil works, rivers and harbors projects, or flood control projects.”
Defense Procurements Made Through Contracts of Other Agencies
Limitation.—
The head of an agency may not procure goods or services (under section 1535 of title 31, United States Code, pursuant to a designation under section 11302(e) of title 40, United States Code, or otherwise) through a contract entered into by an agency outside the Department of Defense for an amount greater than the simplified acquisition threshold referred to in section 2304(g) of title 10, United States Code, unless the procurement is done in accordance with procedures prescribed by that head of an agency for reviewing and approving the use of such contracts.
Effective Date.—
The limitation in subsection (a) shall apply only with respect to orders for goods or services that are issued by the head of an agency to an agency outside the Department of Defense on or after the date that is 180 days after the date of the enactment of this Act [
Inapplicability to Contracts for Certain Services.—
This section does not apply to procurements of the following services:
Printing, binding, or blank-book work to which section 502 of title 44, United States Code, applies.
Services available under programs pursuant to section 103 of the Library of Congress Fiscal Operations Improvement Act of 2000 (Public Law 106–481; 114 Stat. 2187; 2 U.S.C. 182c).
Annual Report.—
For each of fiscal years 2005 and 2006, each head of an agency shall submit to the Secretary of Defense a report on the service charges imposed on purchases made for an amount greater than the simplified acquisition threshold during such fiscal year through a contract entered into by an agency outside the Department of Defense.
In the case of procurements made on orders issued by the head of a Defense Agency, Department of Defense Field Activity, or any other organization within the Department of Defense (other than a military department) under the authority of the Secretary of Defense as the head of an agency, the report under paragraph (1) shall be submitted by the head of that Defense Agency, Department of Defense Field Activity, or other organization, respectively.
The report for a fiscal year under this subsection shall be submitted not later than December 31 of the calendar year in which such fiscal year ends.
Definitions.—
In this section:
The term ‘head of an agency’ means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force.
The term ‘Defense Agency’ has the meaning given such term in section 101(a)(11) of title 10, United States Code.
The term ‘Department of Defense Field Activity’ has the meaning given such term in section 101(a)(12) of such title.”
Resources-Based Schedules for Completion of Public-Private Competitions for Performance of Department of Defense Functions
Application of Timeframes.—
Any interim or final deadline or other schedule-related milestone for the completion of a Department of Defense public-private competition shall be established solely on the basis of considered research and sound analysis regarding the availability of sufficient personnel, training, and technical resources to the Department of Defense to carry out such competition in a timely manner.
Extension of Timeframes.—
The Department of Defense official responsible for managing a Department of Defense public-private competition shall extend any interim or final deadline or other schedule-related milestone established (consistent with subsection (a)) for the completion of the competition if the official determines that the personnel, training, or technical resources available to the Department of Defense to carry out the competition in a timely manner are insufficient.
A determination under this subsection shall be made pursuant to procedures prescribed by the Secretary of Defense.”
Competition Requirement for Purchase of Services Pursuant to Multiple Award Contracts
Requirement To Disregard Certain Agreements in Awarding Contracts for Purchase of Firearms or Ammunition
GAO Report
Procurement of Conventional Ammunition
Authority.—
The official in the Department of Defense designated as the single manager for conventional ammunition in the Department shall have the authority to restrict the procurement of conventional ammunition to sources within the national technology and industrial base in accordance with the authority in section 2304(c) of title 10, United States Code.
Requirement.—
The official in the Department of Defense designated as the single manager for conventional ammunition in the Department of Defense shall limit a specific procurement of ammunition to sources within the national technology and industrial base in accordance with section 2304(c)(3) of title 10, United States Code, in any case in which that manager determines that such limitation is necessary to maintain a facility, producer, manufacturer, or other supplier available for furnishing an essential item of ammunition or ammunition component in cases of national emergency or to achieve industrial mobilization.
Conventional Ammunition Defined.—
For purposes of this section, the term ‘conventional ammunition’ has the meaning given that term in Department of Defense Directive 5160.65, dated
Warranty Claims Recovery Pilot Program
Requirements Relating to Micro-Purchases
Requirement.—
Not later than
Not later than
Eligible Purchases.—
The Secretary of Defense shall establish which purchases are eligible for purposes of subsection (a). In establishing which purchases are eligible, the Secretary may exclude those categories of purchases determined not to be appropriate or practicable for streamlined micro-purchase procedures.
Plan.—
Not later than
Report.—
Not later than March 1 in each of the years 1999, 2000, and 2001, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of Senate and House of Representatives] a report on the implementation of this section. Each report shall include—
the total dollar amount of all Department of Defense purchases for an amount less than the micro-purchase threshold in the fiscal year preceding the year in which the report is submitted;
the total dollar amount of such purchases that were considered to be eligible purchases;
the total amount of such eligible purchases that were made through a streamlined micro-purchase method; and
a description of the categories of purchases excluded from the definition of eligible purchases established under subsection (b).
Definitions.—
In this section:
The term ‘micro-purchase threshold’ has the meaning provided in section 1902 of title 41, United States Code.
The term ‘streamlined micro-purchase procedures’ means procedures providing for the use of the Government-wide commercial purchase card or any other method for carrying out micro-purchases that the Secretary of Defense prescribes in the regulations implementing this subsection.”
Termination of Authority To Issue Solicitations for Purchases of Commercial Items in Excess of Simplified Acquisition Threshold
References in Other Laws to GS–16, 17, or 18 Pay Rates
Authority of Base Commanders Over Contracting for Commercial Activities
Evaluation of Contracts for Professional and Technical Services
Regulations On Use of Fixed-Price Development Contracts
Prohibition of Purchase of Angolan Petroleum Products From Companies Producing Oil in Angola
General Rule.—
The Secretary of Defense may not enter into a contract with a company for the purchase of petroleum products which originated in Angola if the company (or a subsidiary or partnership of the company) is engaged in the production of petroleum products in Angola.
Waiver Authority.—
The Secretary of Defense may waive the limitation in subsection (a) if the Secretary determines that such action is in the best interest of the United States.
Petroleum Product Defined.—
For purposes of this section, the term ‘petroleum product’ means—
natural or synthetic crude;
blends of natural or synthetic crude; and
products refined or derived from natural or synthetic crude or from such blends.
Effective Date.—
This section shall take effect six months after the date of the enactment of this Act [
Deadline for Prescribing Regulations
One-Year Security-Guard Prohibition
Contracting Out Performance of Department of Defense Supply and Service Functions
Reports on Savings or Costs From Increased Use of Civilian Personnel
Limitations on Contracting Performed by Coast Guard
a study has been performed by the Secretary of Transportation under the Office of Management and Budget Circular A–76 with respect to that procurement;
the Secretary of Transportation has performed a study, in addition to the study required by paragraph (1) of this subsection, to determine the impact of that procurement on the multimission capabilities of the Coast Guard; and
copies of the studies required by paragraphs (1) and (2) of this subsection are submitted to the Committee on Merchant Marine and Fisheries [now Committee on Transportation and Infrastructure] of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate.”
Maintenance of Logistics Capability.—
Statement of national interest.—
It is in the national interest for the Coast Guard to maintain a logistics capability (including personnel, equipment, and facilities) to provide a ready and controlled source of technical competence and resources necessary to ensure the effective and timely performance of Coast Guard missions in behalf of the security, safety, and economic and environmental well-being of the United States.
Submisison [sic] of List of Activities Contracted for Performance.—
At least 30 days before the beginning of each fiscal year, the Secretary shall submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and Fisheries [now Committee on Transportation and Infrastructure] of the House of Representatives a list of activities that will be contracted for performance by non-Government personnel under the procedures of Office of Management and Budget Circular A–76 during that fiscal year.
Employment of Local Residents To Perform Contracts.—
In general.—
Notwithstanding any other provision of law, each contract awarded by the Coast Guard in fiscal years 1988 and 1989 for construction or services to be performed in whole or in part in a State which has an unemployment rate in excess of the national average rate of unemployment (as determined by the Secretary of Labor) shall include a provision requiring the contractor to employ, for the purpose of performing that portion of the contract in that State, individuals who are local residents and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills. The Secretary of the department in which the Coast Guard is operating may waive this subsection in the interest of national security or economic efficiency.
Local resident defined.—
As used in this subsection, the term ‘local resident’ means a resident of a State described in paragraph (1), and any individual who commutes daily to a State described in paragraph (1).”