How To Use the NDAA Pages

Back to NDAA Contents

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

Subtitle E—Provisions Relating to Supply Chain Security

P. L. 117-81

Joint Explanatory Statement

(a) In General.--Before awarding a contract to an offeror for the supply of fuel for any overseas contingency operation, the Secretary of Defense shall--

(1) ensure, to the maximum extent practicable, that no otherwise responsible offeror is disqualified for such award on the basis of an unsupported denial of access to a facility or equipment by the host nation government; and

(2) require assurances that the offeror will comply with the requirements of subsections (b) and (c).

(b) Requirement.--An offeror for the supply of fuel for any overseas contingency operation shall--

(1) certify that the provided fuel, in whole or in part, or derivatives of such fuel, is not sourced from a nation or region prohibited from selling petroleum to the United States; and

(2) furnish such records as are necessary to verify compliance with such anticorruption statutes and regulations as the Secretary determines necessary, including--

(A) the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 et seq.);

(B) the regulations contained in parts 120 through 130 of title 22, Code of Federal Regulations, or successor regulations (commonly known as the ``International Traffic in Arms Regulations'');

(C) the regulations contained in parts 730 through 774 of title 15, Code of Federal Regulations, or successor regulations (commonly known as the ``Export Administration Regulations''); and

(D) such regulations as may be promulgated by the Office of Foreign Assets Control of the Department of the Treasury.

(c) Applicability.--Subsections (a) and (b) of this section shall apply with respect to contracts entered into on or after the date of the enactment of this Act.

(d) Consideration of Tradeoff Processes.--If the Secretary of Defense awards a contract for fuel procurement for an overseas contingency operation, the contracting officer for such contract shall consider tradeoff processes (as described in subpart 15 of the Federal Acquisition Regulation, or any successor regulation), including consideration of past performance evaluation, cost, anticorruption training, and compliance. With respect to any such contract awarded for which the contracting officer does not consider tradeoff processes, the contracting officer shall, before issuing a solicitation for such contract, submit to the Secretary a written justification for not considering tradeoff processes in awarding such contract.

The House bill contained a provision (sec. 853) that would amend section 813(c)(3) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114-328) by adding fuel procurement and fuel-related services to the list of acquisition activities that shall avoid use of lowest price technically acceptable (LPTA) source selection, to the maximum extent practicable. The provision would also add certification requirements for overseas contingency fuel contracting.

The Senate amendment contained no similar provision.

The agreement includes the House provision with an amendment that would remove the requirement to avoid LPTA source selection for fuel procurement and fuel related service and would replace it with language that mirrors Department of Defense Inspector General (DOD IG) recommendations by requiring that contracting officers consider tradeoff source selection procedures for any contract for fuel procurement in an overseas
contingency environment.

Additionally, we direct the Secretary of Defense to provide a briefing on the use of LPTA contract terms for fuel delivery in areas of contingency operations. The briefing shall, at a minimum, address the following: (1) Force protection risks; (2) Measures to ensure compliance with anti-corruption and antibribery initiatives; and (3) Other factors identified by the DOD IG in its September 27, 2021, report titled, “Audit of Defense Logistics Agency Award and Management of Bulk Fuel Contracts in Areas of Contingency Operations” (DODIG-2021-129). The briefing shall be provided to the Committees on Armed Services of the Senate and the House of Representatives not later than 180 days after the date of the enactment of this Act.

H. R. 4350--House Report 117-118

Section 853--Assuring Integrity of Overseas Fuel Supplies

This section would amend section 813(c)(3) of the National Defense Authorization Act for Fiscal Year 2017 by adding fuel procurement and fuel-related services to the list of acquisition activities that shall avoid use of lowest price technically acceptable source selection, to the maximum extent practicable.

This section would also add certification requirements for overseas contingency fuel contracting.