Back to NDAA Contents

P. L. 107-107

House Conference Report 107-333

SEC. 803. COMPETITION REQUIREMENT FOR PURCHASE OF SERVICES PURSUANT TO MULTIPLE AWARD CONTRACTS.

(a) REGULATIONS REQUIRED- Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall promulgate in the Department of Defense Supplement to the Federal Acquisition Regulation regulations requiring competition in the purchase of services by the Department of Defense pursuant to multiple award contracts.

(b) CONTENT OF REGULATIONS- (1) The regulations required by subsection (a) shall provide, at a minimum, that each individual purchase of services in excess of $100,000 that is made under a multiple award contract shall be made on a competitive basis unless a contracting officer of the Department of Defense--

(A) waives the requirement on the basis of a determination that--

(i) one of the circumstances described in paragraphs (1) through (4) of section 2304c(b) of title 10, United States Code, applies to such individual purchase; or

(ii) a statute expressly authorizes or requires that the purchase be made from a specified source; and

(B) justifies the determination in writing.

(2) For purposes of this subsection, an individual purchase of services is made on a competitive basis only if it is made pursuant to procedures that--

(A) require fair notice of the intent to make that purchase (including a description of the work to be performed and the basis on which the selection will be made) to be provided to all contractors offering such services under the multiple award contract; and

(B) afford all contractors responding to the notice a fair opportunity to make an offer and have that offer fairly considered by the official making the purchase.

(3) Notwithstanding paragraph (2), notice may be provided to fewer than all contractors offering such services under a multiple award contract described in subsection (c)(2)(A) if notice is provided to as many contractors as practicable.

(4) A purchase may not be made pursuant to a notice that is provided to fewer than all contractors under paragraph (3) unless--

(A) offers were received from at least three qualified contractors; or

(B) a contracting officer of the Department of Defense determines in writing that no additional qualified contractors were able to be identified despite reasonable efforts to do so.

(c) DEFINITIONS- In this section:

(1) The term `individual purchase' means a task order, delivery order, or other purchase.

(2) The term `multiple award contract' means--

(A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 2302(2)(C) of title 10, United States Code;

(B) a multiple award task order contract that is entered into under the authority of sections 2304a through 2304d of title 10, United States Code, or sections 303H through 303K of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253h through 253k); and

(C) any other indefinite delivery, indefinite quantity contract that is entered into by the head of a Federal agency with two or more sources pursuant to the same solicitation.

(3) The term `Defense Agency' has the meaning given that term in section 101(a)(11) of title 10, United States Code.

(d) APPLICABILITY- The regulations promulgated by the Secretary pursuant to subsection (a) shall take effect not later than 180 days after the date of the enactment of this Act and shall apply to all individual purchases of services that are made under multiple award contracts on or after the effective date, without regard to whether the multiple award contracts were entered into before, on, or after such effective date.

The Senate bill contained a provision (sec. 803) that would require that purchases of products and services in excess of $50,000 awarded under a multiple award contract shall be made on a competitive basis, subject to limited exceptions.

The House amendment contained no similar provision.

The House recedes with an amendment that would: (1) apply the competition requirement only to purchases of services; (2) raise the threshold for the competition requirement to $100,000; (3) require that notice to offerors include a description of the work to be performed and the basis on which the selection will be made; and (4) clarify the manner in which the provision would apply to purchases pursuant to the multiple award schedules administered by the Administrator for General Services (GSA schedules). Under the conference agreement, notice could be provided to fewer than all contractors under the GSA schedules, provided that: (1) notice is provided to as many contractors as practicable; and (2) offers are received from at least three qualified contractors or a contracting officer of the Department of Defense determines in writing that he or she was unable to identify additional qualified contractors despite making a reasonable effort to do so.