NDAA for Fiscal Year 2012

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TITLE XXXI--DEPARTMENT OF ENERGY NATIONAL SECURITY PROGRAMS Subtitle C--Plans and Reports
P. L. 113-66	Explanatory Statement, H7894
SEC. 3124. MODIFICATIONS TO COST-BENEFIT ANALYSES FOR COMPETITION OF MANAGEMENT AND OPERATING CONTRACTS. (a) Analyses of Bid Protests- Subsection (a) of section 3121 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 Stat. 2175) is amended to read as follows: `(a) Reports Required- The Administrator for Nuclear Security shall submit to the congressional defense committees a report described in subsection (b) by not later than 30 days after the later of-- `(1) the date on which the Administrator awards a contract to manage and operate a facility of the National Nuclear Security Administration; or `(2) the date on which a protest concerning an alleged violation of a procurement statute or regulation brought under subchapter V of chapter 35 of title 31, United States Code, with respect to such a contract is resolved.'. (b) Reporting on Expected Cost Savings- Subsection (b)(1) of such section is amended by inserting `, including a description of the assumptions used and analysis conducted to determine such expected cost savings' before the semicolon. (c) Review by Comptroller General of the United States- Subsection (c) of such section is amended to read as follows: `(c) Review by Comptroller General of the United States- `(1) IN GENERAL- Except as provided in paragraph (2), the Comptroller General of the United States shall submit to the congressional defense committees a review of each report required by subsection (a) or (d)(2) not later than 180 days after the report is submitted to such committees. `(2) EXCEPTION- The Comptroller General may not conduct a review under paragraph (1) of a report relating to a contract to manage and operate a facility of the National Nuclear Security Administration while a protest described in subsection (a)(2) is pending with respect to that contract.'. (d) Exception for Naval Reactors- Subsection (d) of such section is amended by adding at the end the following new paragraph: `(3) NAVAL REACTORS- The requirement for reports under subsections (a) and (d)(2) shall not apply with respect to a management and operations contract for a Naval Reactor facility.'.	*Modifications to cost-benefit analyses for competition of management and operating contracts (sec. 3124)* The House bill contained a provision (sec. 3120) that would amend section 3121 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) to clarify that, if a management and operating contract awarded by the Administrator for Nuclear Security is protested, the report required by such section to be submitted to Congress shall be submitted not later than 30 days after such protest is resolved. This section would also require any report under section 3121 to include a description of the assumptions used and analysis conducted to determine cost savings expected from the competition of the contract and exempt contracts for managing and operating facilities of the Naval Reactors Program from the requirements of section 3121. The Senate committee-reported bill contained a provision (sec. 3122) that would amend section 3121(e) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) to reduce the number of reports by the Government Accountability Office (GAO). The agreement includes the House provision with an amendment that combines the two provisions, changes the existing 90-day reporting requirement for the GAO to 180 days, and provides flexibility to ensure the reporting requirements for both the National Nuclear Security Administration and the GAO do not interfere with any award protests. House Report 113-102 SECTION 3120--COST-BENEFIT ANALYSES FOR COMPETITION OF MANAGEMENT AND OPERATING CONTRACTS This section would amend section 3121 of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) to clarify that, if a management and operating contract awarded by the Administrator for Nuclear Security is protested, the report required by such section to be submitted to Congress shall be submitted not later than 30 days after such protest is resolved. This section would also require any report under section 3121 to include a description of the assumptions used and analysis conducted to determine cost savings expected from the competition of the contract and exempt contracts for managing and operating facilities of the Naval Reactors Program from the requirements of section 3121. The committee notes that the National Nuclear Security Administration's (NNSA) recent award of the contract for consolidated management and operations of the Y-12 National Security Complex and the Pantex Plant was protested by several bidders. On April 29, 2013, the Government Accountability Office (GAO) sustained this protest. GAO stated that it, `sustained these protests on the basis that NNSA failed to follow the publicly-stated solicitation criteria, which provided that the agency would evaluate the feasibility and size of each offeror's proposed cost savings resulting from the consolidation of the management and operation of these sites. Specifically, GAO concluded that NNSA failed to meaningfully assess the majority of each offeror's proposed cost savings, and based its source selection decision on the unsupported assumption that all cost savings proposed by every offeror would be achieved.' The committee believes NNSA's failure to meaningfully assess each offeror's proposed cost savings is unacceptable for a contract whose total value will likely exceed $22.8 billion. To ensure robust oversight of this issue, the committee recommends this section to ensure NNSA reports to Congress about the assumptions and analysis utilized to estimate anticipated cost savings. Finally, to protect proprietary information and the integrity of contract competitions, the committee believes submission of the report required by section 3121 of Public Law 112-239 is appropriate after any protest is resolved. Senate Report 113-044 Modification of reviews relating to cost-benefit analysis of management and operating contracts of the National Nuclear Security Administration (sec. 3122) The committee recommends a provision that would amend section 3121(e) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239) to lower the number of mandatory reports by the Government Accountability Office.