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

House Conference Report 109-360

SEC. 847. CIVILIAN BOARD OF CONTRACT APPEALS.

(a) In General- The Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.) is amended by adding at the end the following new section:

`SEC. 42. CIVILIAN BOARD OF CONTRACT APPEALS.

`(a) Board Established- There is established in the General Services Administration a board of contract appeals to be known as the Civilian Board of Contract Appeals (in this section referred to as the `Civilian Board').

`(b) Membership-

`(1) APPOINTMENT- (A) The Civilian Board shall consist of members appointed by the Administrator of General Services (in consultation with the Administrator for Federal Procurement Policy) from a register of applicants maintained by the Administrator of General Services, in accordance with rules issued by the Administrator of General Services (in consultation with the Administrator for Federal Procurement Policy) for establishing and maintaining a register of eligible applicants and selecting Civilian Board members. The Administrator of General Services shall appoint a member without regard to political affiliation and solely on the basis of the professional qualifications required to perform the duties and responsibilities of a Civilian Board member.

`(B) The members of the Civilian Board shall be selected and appointed to serve in the same manner as administrative law judges appointed pursuant to section 3105 of title 5, United States Code, with an additional requirement that such members shall have had not fewer than five years of experience in public contract law.

`(C) Notwithstanding subparagraph (B) and subject to paragraph (2), the following persons shall serve as Civilian Board members: any full-time member of any agency board of contract appeals other than the Armed Services Board of Contract Appeals, the Postal Service Board of Contract Appeals, and the board of contract appeals of the Tennessee Valley Authority serving as such on the day before the effective date of this section.

`(2) REMOVAL- Members of the Civilian Board shall be subject to removal in the same manner as administrative law judges, as provided in section 7521 of title 5, United States Code.

`(3) COMPENSATION- Compensation for members of the Civilian Board shall be determined under section 5372a of title 5, United States Code.

`(c) Functions-

`(1) IN GENERAL- The Civilian Board shall have jurisdiction as provided by section 8(d) of the Contract Disputes Act of 1978 (41 U.S.C. 607(b)).

`(2) ADDITIONAL JURISDICTION- The Civilian Board may, with the concurrence of the Federal agency or agencies affected--

`(A) assume jurisdiction over any additional category of laws or disputes over which an agency board of contract appeals established pursuant to section 8 of the Contract Disputes Act exercised jurisdiction before the effective date of this section; and

`(B) assume any other functions performed by such a board before such effective date on behalf of such agencies.'.

(b) Transfers- The personnel employed in connection with, and the assets, liabilities, contracts, property, records, and unexpended balance of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available to, or to be made available in connection with the functions vested by law in the agency boards of contract appeals established pursuant to section 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607) (as in effect on the day before the effective date described in subsection (g)) other than the Armed Services Board of Contract Appeals, the board of contract appeals of the Tennessee Valley Authority, and the Postal Service Board of Contract Appeals shall be transferred to the Civilian Board of Contract Appeals for appropriate allocation by the Chairman of that Board.

(c) Termination of Boards of Contract Appeals-

(1) TERMINATION- Effective on the effective date described in subsection (g), the agency boards of contract appeals established pursuant to section 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607) (as in effect on the day before such effective date), other than the Armed Services Board of Contract Appeals, the board of contract appeals of the Tennessee Valley Authority, and the Postal Service Board of Contract Appeals, shall terminate.

(2) SAVINGS PROVISION- (A) This section and the amendments made by this section shall not affect any proceedings pending on the effective date described in subsection (g) before any agency board of contract appeals terminated by paragraph (1).

(B) In the case of any such proceedings pending before an agency board of contract appeals other than the Armed Services Board of Contract Appeals or the board of contract appeals of the Tennessee Valley Authority, the proceedings shall be continued by the Civilian Board of Contract Appeals, and orders which were issued in any such proceeding by the agency board shall continue in effect until modified, terminated, superseded, or revoked by the Civilian Board of Contract Appeals, by a court of competent jurisdiction, or by operation of law.

(d) Amendments to Contracts Disputes Act-

(1) AMENDMENTS TO DEFINITIONS- Section 2 of the Contract Disputes Act of 1978 (41 U.S.C. 601) is amended--

(A) in paragraph (2), by striking `, the United States Postal Service, and the Postal Rate Commission';

(B) by redesignating paragraph (7) as paragraph (9);

(C) by amending paragraph (6) to read as follows:

`(6) the terms `agency board' or `agency board of contract appeals' mean--

`(A) the Armed Services Board of Contract Appeals established under section 8(a)(1) of this Act;

`(B) the Civilian Board of Contract Appeals established under section 42 of the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.);

`(C) the board of contract appeals of the Tennessee Valley Authority; or

`(D) the Postal Service Board of Contract Appeals established under section 8(c) of this Act;'; and

(D) by inserting after paragraph (6) the following new paragraphs:

`(7) the term `Armed Services Board' means the Armed Services Board of Contract Appeals established under section 8(a)(1) of this Act;

`(8) the term `Civilian Board' means the Civilian Board of Contract Appeals established under section 42 of the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.); and'.

(2) AMENDMENTS RELATING TO JURISDICTION- Section 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607) is amended--

(A) in subsection (d)--

(i) by striking the first sentence and inserting the following: `The Armed Services Board shall have jurisdiction to decide any appeal from a decision of a contracting officer of the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, or the National Aeronautics and Space Administration relative to a contract made by that department or agency. The Civilian Board shall have jurisdiction to decide any appeal from a decision of a contracting officer of any executive agency (other than the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, the National Aeronautics and Space Administration, the United States Postal Service, the Postal Rate Commission, or the Tennessee Valley Authority) relative to a contract made by that agency. Each other agency board shall have jurisdiction to decide any appeal from a decision of a contracting officer relative to a contract made by its agency.'; and

(ii) in the second sentence, by striking `Claims Court' and inserting `Court of Federal Claims';

(B) by striking subsection (c) and inserting the following:

`(c) There is established an agency board of contract appeals to be known as the `Postal Service Board of Contract Appeals'. Such board shall have jurisdiction to decide any appeal from a decision of a contracting officer of the United States Postal Service or the Postal Rate Commission relative to a contract made by either agency. Such board shall consist of judges appointed by the Postmaster General who shall meet the qualifications of and serve in the same manner as members of the Civilian Board of Contract Appeals. This Act shall apply to contract disputes before the Postal Service Board of Contract Appeals in the same manner as they apply to contract disputes before the Civilian Board.'.

(3) CONFORMING AMENDMENTS- Section 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607) is further amended--

(A) in subsection (a)(1)--

(i) by striking `Except as provided in paragraph (2) an agency board of contract appeals' and inserting `An Armed Services Board of Contract Appeals'; and

(ii) by striking `an executive agency when the agency head' and inserting `the Department of Defense when the Secretary of Defense'; and

(B) in subsection (b)(1)--

(i) by striking `Except as provided in paragraph (2), the members of agency boards' and inserting `The members of the Armed Services Board of Contract Appeals';

(ii) in the second sentence, by striking `agency boards' and inserting `such Board';

(iii) in the third sentence, by striking `each board' and inserting `such Board' and by striking `the agency head' and inserting `the Secretary of Defense'; and

(iv) in the fourth sentence, by striking `an agency board' and inserting `such Board'.

(4) REPEAL OF OBSOLETE PROVISIONS- Section 8 of the Contract Disputes Act of 1978 (41 U.S.C. 607) is further amended by striking subsections (h) and (i).

(e) References- Any reference to an agency board of contract appeals other than the Armed Services Board of Contract Appeals, the board of contract appeals of the Tennessee Valley Authority, or the Postal Service Board of Contract Appeals in any provision of law or in any rule, regulation, or other paper of the United States shall be treated as referring to the Civilian Board of Contract Appeals established under section 42 of the Office of Federal Procurement Policy Act.

(f) Conforming and Clerical Amendments- (1) Section 5372a(a)(1) of title 5, United States Code, is amended by inserting after `of 1978' the following: `or a member of the Civilian Board of Contract Appeals appointed under section 42 of the Office of Federal Procurement Policy Act'.

(2) The table of contents for the Office of Federal Procurement Policy Act (contained in section 1(b)) is amended by adding at the end the following new item:

`42. Civilian Board of Contract Appeals.'.

(g) Effective Date- Section 42 of the Office of Federal Procurement Policy Act, as added by this section, and the amendments and repeals made by this section, shall take effect 1 year after the date of the enactment of this Act.

The House bill contained a title (title XIV) that would establish civilian and defense boards of contract appeals and transfer personnel and functions to these boards from the existing boards of contract appeals.

The Senate amendment contained no similar provision.

The Senate recedes with an amendment that would consolidate the existing boards of contract appeals for civilian agencies into a new Civilian Board of Contract Appeals. The provision would give the civilian board jurisdiction over contract appeals from non-defense agencies and ensure that the board could, with the concurrence of the heads of affected agencies, assume responsibility for any other functions previously performed by the boards of contract appeals for civilian agencies.

The conference agreement would make no change to the Armed Services Board of Contract Appeals (ASBCA), because the ASBCA already has consolidated jurisdiction for contract appeals from the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, and the National Aeronautics and Space Administration.

House Report 109-89

TITLE XIV--CONTRACT DISPUTE ENHANCEMENT

OVERVIEW

This title would provide for a consolidation of the myriad of small agency-specific boards of contract appeals into an enhanced appeals system centered in two consolidated boards; one for most of the government's civilian agencies and another for our defense agencies and the National Aeronautics and Space Agency (NASA). The consolidation would eliminate multiple board rules, increase management efficiency, and improve access to the appeals process for businesses including small businesses. The title would, for the most part leave in place, to the extent they are consistent with the new structure, the current Contract Dispute Act of 1978, (Public Law 95-563, sections 601-614 of title 41, United States Code), provisions regarding board procedures and jurisdiction.

LEGISLATIVE PROVISIONS

SUBTITLE A--GENERAL PROVISIONS

SECTION 1411--DEFINITIONS

The section would amend the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) to provide the definitions of `Defense Board,' `Civilian Board,' `Board Judge,' `Chairman,' `Board concerned,' and `executive agency'.

SUBTITLE B--ESTABLISHMENT OF CIVILIAN AND DEFENSE BOARDS OF CONTRACT APPEALS

SECTION 1421--ESTABLISHMENT

The section would amend the Contract Disputes Act of 1978 (Disputes Act) (41 U.S.C. 607) to provide for the establishment of a Department of Defense Board of Contract Appeals in the Department of Defense and a Civilian Board of Contract Appeals in the General Services Administration. The two Boards shall review appeals by contractors of decisions by a contracting officer in accordance with the Disputes Act.

SECTION 1422--MEMBERSHIP

The section would amend the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) to provide for the selection of judges for the Defense Board of Contract Appeals (Defense Board) by the Secretary of Defense in accordance with rules issued by the Defense Board. The selection shall be without regard to political affiliation and on the basis of professional qualifications. The section also would provide for the selection of judges for the Civilian Board of Contract Appeals (Civilian Board) by the Administrator of Federal Procurement Policy (Administrator) under rules issued by the Office for Federal Procurement Policy and from a register maintained by the Administrator. The selection, as in the case of the Defense Board, shall be without regard to political affiliation and on the basis of professional qualifications. The members of the Boards shall be selected and appointed as are administrative law judges under section 3105 of title 5, United States Code, with the additional requirement that they have at least 5 years experience in public contract law.

This section would provide further that members of the current Armed Services Board of Contract Appeals would serve as members of the new Defense Board while members of the current agency boards of contract appeals other than the Armed Services Board shall serve on the new Civilian Board. Judges of both Boards shall be subject to removal in the same manner as administrative law judges under section 7521 of title 5, United States Code, and they will be compensated under section 5372a of title 5, United States Code. In any event, current members of the Armed Services Board of Contract Appeals will serve as members of the Defense Board and current members of the other agency boards will serve as members of the Civilian Board.

Finally, this section would provide that members of the Defense and Civilian Boards would be subject to removal in the same manner as administrative law judges under section 7521 of title 5, United States Code, while compensation for the chairs of both Boards and all other members shall be determined under section 5372a of title 5, United States Code.

SECTION 1423--CHAIRMEN

The section would amend the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) to provide for the designation of the Chairman of the Defense Board of Contract Appeals by the Secretary of Defense. The Chairman would serve for five years and be selected of Contract Appeals from among sitting judges having at least five years service as a member of the current Armed Services Board. Similarly, this section would provide for the selection of the Chairman of the Civilian Board by the Administrator for Federal Procurement Policy from among the sitting judges of Contract Appeals serving at least five years on agency boards of contract appeals other than the Armed Services Board. The Chairman of the Civilian Board of Contract Appeals would serve for five years.

The Chairman of each respective Board would be responsible for: (1) appointment and fixing compensation of Board personnel pursuant to part III of title 5 of the United States Code; (2) supervision of Board personnel; (3) operation of a Clerk's Office, including receipt of filings, assignment of cases and maintenance of records; and (4) prescription of necessary rules and regulations for the administration and management of the Board. Finally, this section provides that the Chairmen of the respective Boards may each appoint up to two other Board judges as Vice Chairmen to act in the place of the Chairman in the Chairman's absence.

SECTION 1424--RULEMAKING AUTHORITY

This section would amend the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) to provide that the Chairmen of the Defense and Civilian Boards in consultation with the Administrator for Federal Procurement Policy shall jointly issue and maintain procedural rules and regulations necessary for the functioning of the Boards as well as statements of policy of general applicability.

SECTION 1425--AUTHORIZATION OF APPROPRIATIONS

This section would amend the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) to provide that funds are to be authorized for fiscal year 2006 and succeeding fiscal years to carry out this title and to provide that funds for the activities of each Board shall be appropriated separately.

SUBTITLE C--FUNCTIONS OF DEFENSE AND CIVILIAN BOARDS OF CONTRACT APPEALS

SECTION 1431--CONTRACT DISPUTES

This section would amend the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) to provide that the Defense Board of Contract Appeals and the Civilian Board of Contract Appeals shall have jurisdiction as provided by the Contract Disputes Act of 1978 (41 U.S.C. 607(a) and (b)).

SECTION 1432--ENHANCED ACCESS FOR SMALL BUSINESS

This section would amend section 9(a) of the Contract Disputes Act of 1978 (41 U.S.C. 608) to provide that the Defense Board of Contract Appeals and the Civilian Board of Contract Appeals shall provide for expedited disposition of appeals of small businesses where the amount in dispute is $150,000 or less.

SECTION 1433--APPLICABILITY TO CERTAIN CONTRACTS

This section would amend the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) to provide that the authority conferred on the Defense Board of Contract Appeals and the Civilian Board of Contract Appeals is applicable to contracts not greater than the simplified acquisition threshold and to contracts for the procurement of commercial items.

SUBTITLE D--TRANSFERS AND TRANSITION, SAVINGS, AND CONFORMING PROVISIONS

SECTION 1441--TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PERSONNEL

This section would provide for the transfer of the personnel, unexpended appropriations and assets of the Armed Services Board of Contract Appeals (ASBCA) to the Defense Board of Contract Appeals and for the transfer of the personnel, unexpended appropriations, and assets of the agency boards of contract appeals, other than the ASBCA, the Tennessee Valley Authority Board, and Postal Service Board to the Civilian Board of Contract Appeals. Finally, this section would provide that the personnel transferred could not be separated or reduced in compensation for one year after the transfer and would set forth the standards to be followed by the Boards for possible later reductions in force.

SECTION 1442--TERMINATIONS AND SAVINGS PROVISIONS

This section would provide for the termination of the affected agency boards of contract appeals and for the rules for affect on pending proceedings before the agency boards.

SECTION 1443--CONTRACT DISPUTES AUTHORITY OF BOARDS

This section would provide conforming amendments to the Contract Disputes Act of 1978 (Disputes Act) (41 U.S.C. 601) needed by the establishment of the Defense Board of Contract Appeals and the Civilian Board of Contract Appeals (Civilian Board) regarding contract disputes. This section also would establish the Postal Service Board of Contract Appeals to decide appeals under the Disputes Act for contracts awarded by the United States Postal Service or the Postal Rate Commission and provide for the selection and appointment of Board judges by the Postmaster General in the same manner as judges of the Civilian Board.

SECTION 1444--REFERENCES TO AGENCY BOARDS OF CONTRACT APPEALS

This section would provide that any reference to the current Armed Services Board of Contract Appeals (ASBCA) be treated as referring to the Defense Board of Contract Appeals and that any reference to an agency board of contract appeals other than the ASBCA, the Tennessee Valley Authority Board, or Postal Services Board be treated as referring to the Civilian Board of Contract Appeals.

SECTION 1445--CONFORMING AMENDMENTS

This section would provide for the necessary conforming amendments to title 5 and the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.).

SUBTITLE E--EFFECTIVE DATE; REGULATIONS AND APPOINTMENT OF CHAIRMEN

SECTION 1451--EFFECTIVE DATE

This section would provide that title II of the Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) as added by this title and the amendments and repeals shall take effect within one year of enactment of this Act.

SECTION 1452--REGULATIONS

This section would provide that within one year after the enactment of this Act, the Chairmen of the current Armed Services Board of Contract Appeals (ASBCA) and the current General Services Board of Contract Appeals (GSBCA) in consultation with the Administrator for Federal Procurement Policy (Administrator) jointly issue procedural rules, regulations, and statements of policy for the Defense Board of Contract Appeals and Civilian Board of Contract Appeals. This section would further provide that within one year of the enactment of this Act, the Chairman of the ASBCA shall issue rules governing the establishment of a register of applicants and selection of judges for the Defense Board and the Administrator shall do the same for the Civilian Board.

SECTION 1453--APPOINTMENT OF CHAIRMEN OF DEFENSE BOARD AND CIVILIAN BOARD

This section would provide that notwithstanding section 1451 above, within one year of enactment of this Act, the Secretary of Defense shall appoint the Chairman of the Defense Board of Contract Appeals and the Administrator for Federal Procurement Policy shall appoint the Chairman of the Civilian Board of Contract Appeals.