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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle B--Amendments to General Contracting Authorities, Procedures, and Limitation

P. L. 111-

House Conference Report 111-288

    (a) In General.--Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to provide that the head of an agency may not award a sole-source contract in a covered procurement for an amount exceeding $20,000,000 unless--

    (1) the contracting officer for the contract justifies the use of a sole-source contract in writing;

    (2) the justification is approved by the appropriate official designated to approve contract awards for dollar amounts that are comparable to the amount of the sole-source contract; and

    (3) the justification and related information are made public as provided in sections 2304(f)(1)(C) and 2304(l) of title 10, United States Code, or sections 303(f)(1)(C) and 303(j) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(1)(C) and 253(j)), as applicable.

    (b) Elements of Justification.--The justification of a sole-source contract required pursuant to subsection (a) shall include the following:

    (1) A description of the needs of the agency concerned for the matters covered by the contract.

    (2) A specification of the statutory provision providing the exception from the requirement to use competitive procedures in entering into the contract.

    (3) A determination that the use of a sole-source contract is in the best interest of the agency concerned.

    (4) A determination that the anticipated cost of the contract will be fair and reasonable.

    (5) Such other matters as the head of the agency concerned shall specify for purposes of this section.

    (c) Definitions.--In this section:

    (1) COVERED PROCUREMENT.--The term ``covered procurement'' means either of the following:

    (A) A procurement described in section 2304(f)(2)(D)(ii) of title 10, United States Code.

    (B) A procurement described in section 303(f)(2)(D)(ii) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(2)(D)(ii)).

    (2) HEAD OF AN AGENCY.--The term ``head of an agency''--

    (A) in the case of a covered procurement as defined in paragraph (1)(A), has the meaning provided in section 2302(1) of title 10, United States Code; and

    (B) in the case of a covered procurement as defined in paragraph (1)(B), has the meaning provided the term ``agency head'' in section 309(a) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(a)).

    (3) APPROPRIATE OFFICIAL.--The term ``appropriate official'' means--

    (A) in the case of a covered procurement as defined in paragraph (1)(A), an official designated in section 2304(f)(1)(B) of title 10, United States Code; and

    (B) in the case of a covered procurement as defined in paragraph (1)(B), an official designated in section 303(f)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(1)(B)).

   The Senate amendment contained a provision (sec. 802) that would require a written justification and approval for Department of Defense contracts in excess of $20.0 million dollars that are awarded on a sole-source basis.

   The House bill contained no similar provision.

   The House recedes with an amendment that would: (1) clarify that this section applies specifically to procurements that are exempted by section 2304(f)(2)(D)(ii) of title 10, United States Code, from generally applicable justification and approval requirements; and (2) make the provision applicable government-wide. The conferees intend this provision to ensure that sole-source contracts may be awarded in such procurements only when those awards have been determined to be in the best interest of the Department of Defense or other agency concerned.

Senate Report 111-035 - NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010

The committee recommends a provision that prohibits the Department of Defense (DOD) from awarding a sole-source contract for an amount exceeding $20.0 million, unless the contracting officer has determined in writing that the use of a sole-source contract is in the best interest of DOD and the written justification on which such determination is based has been approved by an appropriate reviewing official.