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Title XIV—Services Acquisition Reform

The Services Acquisition Reform Act of 2003 (SARA)

Public Law 108-136

LEGISLATIVE PROVISIONS NOT ADOPTED

Bill Sections Not Enacted

House Conference Report 108-354

SEC. 1402. EXECUTIVE AGENCY DEFINED.

In this title, the term `executive agency' has the meaning given that term in section 4(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(1)), unless specifically stated otherwise.

Executive agency defined

The House bill contained a provision (sec. 1402) that would use the term executive agency, as defined in section 4 of the Office of Federal Procurement of Policy Act (41 U.S.C. 403).

The Senate amendment contained no similar provision.

The House recedes.

SEC. 1427. AGENCY ACQUISITION PROTESTS.

(a) DEFENSE CONTRACTS- (1) Chapter 137 of title 10, United States Code, is amended by inserting after section 2305a the following new section:

`Sec. 2305b. Protests

`(a) IN GENERAL- An interested party may protest an acquisition of supplies or services by an agency based on an alleged violation of an acquisition law or regulation, and a decision regarding such alleged violation shall be made by the agency in accordance with this section.

`(b) RESTRICTION ON CONTRACT AWARD PENDING DECISION- (1) Except as provided in paragraph (2), a contract may not be awarded by an agency after a protest concerning the acquisition has been submitted under this section and while the protest is pending.

`(2) The head of the acquisition activity responsible for the award of the contract may authorize the award of a contract, notwithstanding pending protest under this section, upon making a written finding that urgent and compelling circumstances do not allow for waiting for a decision on the protest.

`(c) RESTRICTION ON CONTRACT PERFORMANCE PENDING DECISION- (1) Except as provided in paragraph (2), performance of a contract may not be authorized (and performance of the contract shall cease if performance has already begun) in any case in which a protest of the contract award is submitted under this section before the later of--

`(A) the date that is 10 days after the date of contract award; or

`(B) the date that is five days after an agency debriefing date offered to an unsuccessful offeror for any debriefing that is requested and, when requested, is required, under section 2305(b)(5) of this title.

`(2) The head of the acquisition activity responsible for the award of a contract may authorize performance of the contract notwithstanding a pending protest under this section upon making a written finding that urgent and compelling circumstances do not allow for waiting for a decision on the protest.

`(d) DEADLINE FOR DECISION- The head of an agency shall issue a decision on a protest under this section not later than the date that is 20 working days after the date on which the protest is submitted to such head of an agency.

`(e) CONSTRUCTION- Nothing in this section shall affect the right of an interested party to file a protest with the Comptroller General under subchapter V of chapter 35 of title 31 or in the United States Court of Federal Claims.

`(f) DEFINITIONS- In this section, the terms `protest' and `interested party' have the meanings given such terms in section 3551 of title 31.'.

(2) The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 2305a the following new item:

`2305b. Protests.'.

(b) OTHER AGENCIES- Title III of the Federal Property and Administrative Services Act of 1949 is amended by inserting after section 303M (41 U.S.C. 253m) the following new section:

Agency acquisition protests

The House bill contained a provision (sec. 1427) that would amend Chapter 137 of title 10, United States Code, and the Federal Property and Administrative Services Act of 1949 (Public Law 81-152) to provide statutory authority for an agency-level acquisition protest process.

The Senate amendment contained no similar provision.

The House recedes.

SEC. 1431. INCENTIVES FOR CONTRACT EFFICIENCY.

(a) INCENTIVES FOR CONTRACT EFFICIENCY- The Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) is amended by adding at the end the following new section:

`SEC. 41. INCENTIVES FOR EFFICIENT PERFORMANCE OF SERVICES CONTRACTS.

`(a) OPTIONS FOR SERVICES CONTRACTS- An option included in a contract for services to extend the contract by one or more periods may provide that it be exercised on the basis of exceptional performance by the contractor. A contract that contains such an option provision shall include performance standards for measuring performance under the contract, and to the maximum extent practicable be performance-based. Such option provision shall only be exercised in accordance with applicable provisions of law or regulation that set forth restrictions on the duration of the contract containing the option.

`(b) DEFINITION OF PERFORMANCE-BASED- In this section, the term `performance-based', with respect to a contract, task order, or contracting, means that the contract, task order, or contracting, respectively, includes the use of performance work statements that set forth contract requirements in clear, specific, and objective terms with measurable outcomes.'.

(b) CLERICAL AND TECHNICAL AMENDMENTS- (1) The table of contents in section 1(b) of such Act is amended by striking the last item and inserting the following:

`Sec. 40. Protection of constitutional rights of contractors.

`Sec. 41. Incentives for efficient performance of services contracts.'.

(2) The section before section 41 of such Act (as added by subsection (a)) is redesignated as section 40.

Incentives for contract efficiency

The House bill contained a provision (sec. 1431) that would amend the Office of Federal Procurement Policy Act (Public Law 93-400) by authorizing agencies to include options in service contracts that extend the contract by one or more performance periods based on exceptional performance, as measured by standards set forth in the contract.

The Senate amendment contained no similar provision.

The House recedes.

SEC. 1444. DESIGNATION OF COMMERCIAL BUSINESS ENTITIES.

(a) IN GENERAL- Section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403), as amended by section 1411, is further amended--

(1) by adding at the end of paragraph (12) the following new subparagraph:

`(I) Items or services produced or provided by a commercial entity.'; and

(2) by adding at the end the following new paragraph:

`(17) The term `commercial entity' means any enterprise whose primary customers are other than the Federal Government. In order to qualify as a commercial entity, at least 90 percent (in dollars) of the sales of the enterprise over the past three business years must have been made to private sector entities.'.

(b) COLLECTION OF DATA- Regulations implementing the amendments made by subsection (a) shall require agencies to collect and maintain reliable data sufficient to identify the contracts entered into or task orders awarded for items or services produced or provided by a commercial entity. The data may be collected using the Federal Procurement Data System or other reporting mechanism.

(c) OMB REPORT- Not later than two years after the date of the enactment of this subsection, the Director of the Office of Management and Budget shall prepare and submit to the Committees on Governmental Affairs and on Armed Services of the Senate and the Committees on Government Reform and on Armed Services of the House of Representatives a report on the contracts entered into or task orders awarded for items or services produced or provided by a commercial entity. The report shall include data on the use of such authority both government-wide and for each department and agency.

(d) COMPTROLLER GENERAL REVIEW- The Comptroller General shall review the implementation of the amendments made by subsection (a) to evaluate the effectiveness of such implementation in increasing the availability of items and services to the Federal Government at fair and reasonable prices.

Designation of commercial business entities

The House bill contained a provision (sec. 1444) that would amend section 4 of the Office of Federal Procurement Policy Act (Public Law 93-400) to authorize federal agencies to treat the purchase of products or services provided by a commercial entity as a procurement of a commercial item.

The Senate amendment contained no similar provision.

The House recedes.

SEC. 1452. AUTHORITY TO MAKE INFLATION ADJUSTMENTS TO SIMPLIFIED ACQUISITION THRESHOLD.

Section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(11)) is amended by inserting before the period at the end the following: `, except that such amount may be adjusted by the Administrator every five years to the amount equal to $100,000 in constant fiscal year 2003 dollars (rounded to the nearest $10,000)'.

Authority to make inflation adjustments to simplified acquisition threshold

The House bill contained a provision (sec. 1452) that would authorize the Administrator for Federal Procurement Policy to adjust the simplified acquisition threshold, as defined in section 4(11) of the Office of Federal Procurement Policy Act (Public Law 93-400), every five years to an amount equal to $100,000 in constant fiscal year 2003 dollars.

The Senate amendment contained no similar provision.

The House recedes.

SEC. 1454. APPLICABILITY OF CERTAIN PROVISIONS TO SOLE SOURCE CONTRACTS FOR GOODS AND SERVICES TREATED AS COMMERCIAL ITEMS.

(a) IN GENERAL- No contract awarded on a sole source basis for the procurement of items or services that are treated as or deemed to be commercial items pursuant to the amendments made by section 1441, 1444, or 1457 of this Act shall be exempt from--

(1) cost accounting standards promulgated pursuant to section 26 of the Office of Federal Procurement Policy Act (41 U.S.C. 422); and

(2) cost or pricing data requirements (commonly referred to as truth in negotiating) under section 2306a of title 10, United States Code, and section 304A of title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 254b).

(b) LIMITATION- This section shall not apply to any contract in an amount not greater than $15,000,000.

Applicability of certain provisions to sole source contracts for goods and services treated as commercial items

The House bill contained a provision (sec. 1454) that would limit certain commercial item authority.

The Senate amendment contained no similar provision.

The House recedes.

SEC. 1453. PROHIBITION ON USE OF QUOTAS.

(a) IN GENERAL- After the date of enactment of this Act, the Office of Management and Budget may not establish, apply, or enforce any numerical goal, target, or quota for subjecting the employees of a department or agency of the Government to public-private competitions or converting such employees or the work performed by such employees to contractor performance under Office of Management and Budget Circular A-76 or any other administrative regulation, directive, or policy unless the goal, target, or quota is based on considered research and sound analysis of past activities and is consistent with the stated mission of the department or agency.

(b) LIMITATIONS- Subsection (a) shall not--

(1) otherwise affect the implementation or enforcement of the Government Performance and Results Act of 1993 (107 Stat. 285); or

(2) prevent any agency of the Executive branch from subjecting work performed by Federal employees or private contractors to public-private competition or conversions.

Prohibition on use of quotas

The House bill contained a provision (sec. 1453) that would prohibit the Office of Management and Budget from establishing, applying, or enforcing quotes on federal agencies with respect to the number of employees that should be part of a public-private competition.

The Senate amendment contained no similar provision.

The House recedes.