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

Subtitle E — Other Matters

P. L. 111-

Joint Explanatory Statement of the Committees on Armed Services of the U. S. Senate and House of Representatives on H. R. 6523

From H. R. 6523

SEC. 844. REVIEW OF NATIONAL SECURITY EXCEPTION TO COMPETITION.

(a) Review Required- The Comptroller General of the United States shall review the use of the national security exception to full and open competition provided in section 2304(c)(6) of title 10, United States Code, by the Department of Defense.

(b) Matters Reviewed- The review of the use of the national security exception required by subsection (a) shall include--

(1) the pattern of usage of such exception by acquisition organizations within the Department to determine which organizations are commonly using the exception and the frequency of such usage;

(2) the range of items or services being acquired through the use of such exception;

(3) the process for reviewing and approving justifications involving such exception;

(4) whether the justifications for use of such exception typically meet the relevant requirements of the Federal Acquisition Regulation applicable to the use of such exception;

(5) issues associated with follow-on procurements for items or services acquired using such exception; and

(6) potential additional instances where such exception could be applied and any authorities available to the Department other than such exception that could be applied in such instances.

(c) Report- Not later than one year after the date of the enactment of this Act, the Comptroller General shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the review required by subsection (a), including a discussion of each of the matters specified in subsection (b). The report shall include any recommendations relating to the matters reviewed that the Secretary considers appropriate. The report shall be submitted in unclassified form but may include a classified annex.

From H.R. 5136:  National Defense Authorization Act for Fiscal Year 2011

SEC. 836. REVIEW OF NATIONAL SECURITY EXCEPTION TO COMPETITION.

(a) Review Required- The Secretary of Defense shall review the implementation by the Department of Defense of the national security exception to full and open competition provided in section 2304(c)(6) of title 10, United States Code.

(b) Matters Reviewed- The review of the implementation of the national security exception required by subsection (a) shall include--

(1) the pattern of usage of such exception by acquisition organizations within the Department to determine which organizations are commonly using the exception and the frequency of such usage;

(2) the range of items or services being acquired through the use of such exception;

(3) the process for reviewing and approving justifications involving such exception;

(4) whether the justifications for use of such exception typically meet the relevant requirements of the Federal Acquisition Regulation applicable to the use of such exception;

(5) issues associated with follow-on procurements for items or services acquired using such exception; and

(6) potential additional instances where such exception could be applied and any authorities available to the Department of Defense other than such exception that could be applied in such instances.

(c) Report- Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and of the House of Representatives a report on the review required by subsection (a), including a discussion of each of the matters specified in subsection (b). The report shall include any recommendations relating to the matters reviewed that the Secretary considers appropriate. The report shall be submitted in unclassified form but may include a classified annex.

(d) Regulations-

(1) REQUIREMENT- Not later than 270 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the congressional committees described in paragraph (2) draft regulations on the implementation of the national security exception to full and open competition provided in section 2304(c)(6) of title 10, United States Code, taking into account the results of the review required by subsection (a).

(2) CONGRESSIONAL COMMITTEES- The congressional committees described in this paragraph are the following:

(A) The Committee on Armed Services and the Committee on Homeland Security and Governmental Affairs of the Senate.

(B) The Committee on Armed Services and the Committee on Oversight and Government Reform of the House of Representatives.

The House bill contained a provision (sec. 836) that would require the Secretary of Defense to review the implementation of the national security exception to full and open competition and draft new regulations that account for the findings of the review.

The Senate committee-reported bill contained no similar provision.

The agreement includes a provision that would require the Government Accountability Office to review the implementation of the national security exception. We expect the examination of possible additional uses in this review to consider, at a minimum, a review of any legislative proposals to establish national security-related exceptions to full and open competition that have been submitted to the Department of Defense's Office of Legislative Counsel in the 5 years preceding the date of enactment of this Act.

From H. Rpt. 111-491, accompanying H. R. 5136, the NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011

SECTION 836--REVIEW OF NATIONAL SECURITY EXCEPTION TO COMPETITION

This section would require the Secretary of Defense to review the implementation of the national security exception to full and open competition provided in section 2304(c)(6) of title 10, United States Code (commonly known as the Competition in Contracting Act). The review would include an examination of: the pattern of usage; the range of items or services being acquired; the justification and approval process; compliance with the Federal Acquisition Regulation; issues relating to follow-on procurements; and possible additional uses for the exception. The committee intends that the examination of possible additional uses in this review would include, at a minimum, a review of any legislative proposals requesting national security-related exceptions to full and open competition submitted to the Department of Defense's Office of Legislative Counsel in the five years preceding the date of enactment of this Act. This section would require the Secretary to submit a report on the review to the Senate Committee on Armed Services and the House Committee on Armed Services within 270 days after the date of enactment of this Act. Finally, this section would require the Secretary, upon completion of the review, to submit draft regulations relating to the implementation of the national security exception to full and open competition to the Senate Committee on Armed Services, the Senate Committee on Homeland Security and Governmental Affairs, the House Committee on Armed Services, and the House Committee on Oversight and Government Reform.