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

Subtitle D--Accountability in Contracting

NDAA Section

House Conference Report 110-477

SEC. 843. ENHANCED COMPETITION REQUIREMENTS FOR TASK AND DELIVERY ORDER CONTRACTS.

(a) Defense Contracts-

(1) LIMITATION ON SINGLE AWARD CONTRACTS- Section 2304a(d) of title 10, United States Code, is amended--

(A) by redesignating paragraph (3) as paragraph (4); and

(B) by inserting after paragraph (2) the following new paragraph (3):

`(3)(A) No task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source unless the head of the agency determines in writing that--

`(i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work;

`(ii) the contract provides only for firm, fixed price task orders or delivery orders for--

`(I) products for which unit prices are established in the contract; or

`(II) services for which prices are established in the contract for the specific tasks to be performed;

`(iii) only one source is qualified and capable of performing the work at a reasonable price to the government; or

`(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.

`(B) The head of the agency shall notify Congress within 30 days after any determination under subparagraph (A)(iv).'.

(2) ENHANCED COMPETITION FOR ORDERS IN EXCESS OF $5,000,000- Section 2304c of such title is amended--

(A) by redesignating subsections (d), (e), and (f) as subsections (e), (f), and (g), respectively;

(B) by inserting after subsection (c) the following new subsection (d):

`(d) Enhanced Competition for Orders in Excess of $5,000,000- In the case of a task or delivery order in excess of $5,000,000, the requirement to provide all contractors a fair opportunity to be considered under subsection (b) is not met unless all such contractors are provided, at a minimum--

`(1) a notice of the task or delivery order that includes a clear statement of the agency's requirements;

`(2) a reasonable period of time to provide a proposal in response to the notice;

`(3) disclosure of the significant factors and subfactors, including cost or price, that the agency expects to consider in evaluating such proposals, and their relative importance;

`(4) in the case of an award that is to be made on a best value basis, a written statement documenting the basis for the award and the relative importance of quality and price or cost factors; and

`(5) an opportunity for a post-award debriefing consistent with the requirements of section 2305(b)(5) of this title.'; and

(C) by striking subsection (e), as redesignated by paragraph (1), and inserting the following new subsection (e):

`(e) Protests- (1) A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for--

`(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or

`(B) a protest of an order valued in excess of $10,000,000.

`(2) Notwithstanding section 3556 of title 31, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).

`(3) This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.'.

(3) EFFECTIVE DATES-

(A) SINGLE AWARD CONTRACTS- The amendments made by paragraph (1) shall take effect on the date that is 120 days after the date of the enactment of this Act, and shall apply with respect to any contract awarded on or after such date.

(B) ORDERS IN EXCESS OF $5,000,000- The amendments made by paragraph (2) shall take effect on the date that is 120 days after the date of the enactment of this Act, and shall apply with respect to any task or delivery order awarded on or after such date.

(b) Civilian Agency Contracts-

(1) LIMITATION ON SINGLE AWARD CONTRACTS- Section 303H(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253h(d)) is amended--

(A) by redesignating paragraph (3) as paragraph (4); and

(B) by inserting after paragraph (2) the following new paragraph (3):

`(3)(A) No task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source unless the head of the executive agency determines in writing that--

`(i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work;

`(ii) the contract provides only for firm, fixed price task orders or delivery orders for--

`(I) products for which unit prices are established in the contract; or

`(II) services for which prices are established in the contract for the specific tasks to be performed;

`(iii) only one source is qualified and capable of performing the work at a reasonable price to the government; or

`(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.

`(B) The head of the executive agency shall notify Congress within 30 days after any determination under subparagraph (A)(iv).'.

(2) ENHANCED COMPETITION FOR ORDERS IN EXCESS OF $5,000,000- Section 303J of such Act (41 U.S.C. 253j) is amended--

(A) by redesignating subsections (d), (e), and (f) as subsections (e), (f), and (g), respectively;

(B) by inserting after subsection (c) the following new subsection (d):

`(d) Enhanced Competition for Orders in Excess of $5,000,000- In the case of a task or delivery order in excess of $5,000,000, the requirement to provide all contractors a fair opportunity to be considered under subsection (b) is not met unless all such contractors are provided, at a minimum--

`(1) a notice of the task or delivery order that includes a clear statement of the executive agency's requirements;

`(2) a reasonable period of time to provide a proposal in response to the notice;

`(3) disclosure of the significant factors and subfactors, including cost or price, that the executive agency expects to consider in evaluating such proposals, and their relative importance;

`(4) in the case of an award that is to be made on a best value basis, a written statement documenting the basis for the award and the relative importance of quality and price or cost factors; and

`(5) an opportunity for a post-award debriefing consistent with the requirements of section 303B(e).'; and

(C) by striking subsection (e), as redesignated by paragraph (1), and inserting the following new subsection (e):

`(e) Protests- (1) A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for--

`(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or

`(B) a protest of an order valued in excess of $10,000,000.

`(2) Notwithstanding section 3556 of title 31, United States Code, the Comptroller General of the United States shall have exclusive jurisdiction of a protest authorized under paragraph (1)(B).

`(3) This subsection shall be in effect for three years, beginning on the date that is 120 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008.'.

(3) EFFECTIVE DATES-

(A) SINGLE AWARD CONTRACTS- The amendments made by paragraph (1) shall take effect on the date that is 120 days after the date of the enactment of this Act, and shall apply with respect to any contract awarded on or after such date.

(B) ORDERS IN EXCESS OF $5,000,000- The amendments made by paragraph (2) shall take effect on the date that is 120 days after the date of the enactment of this Act, and shall apply with respect to any task or delivery order awarded on or after such date.

The House bill contained a provision (sec. 821) that would address the issue of competition in contracting on a government-wide basis.

The Senate amendment contained a provision (sec. 821) that would encourage the use of multiple-award task and delivery order contracts in lieu of single-award contracts, enhance requirements for the competition of task orders and delivery orders under multiple-award contracts, and authorize bid protests for task or delivery orders in excess of $5.0 million under such contracts.

The House bill contained no similar provision.

The House recedes with an amendment that would address the competition issues in the Senate provision on a government-wide basis. The provision would raise the threshold for bid protests to $10.0 million and sunset the authorization for bid protests after 3 years. The conferees expect that the sunset date will provide Congress with an opportunity to review the implementation of the provision and make any necessary adjustments.

House Armed Services Committee Report 110-146

SECTION 821--LIMITATION ON LENGTH OF NONCOMPETITIVE CONTRACTS

This section would require a revision of the Federal Acquisition Regulation, within one year following the date of enactment, in order to limit the period of performance on certain contracts. This section would apply only to contracts valued at more than $1.0 million that, due to urgent and compelling need, are awarded using procedures other than full and open competition. This section would also limit the contract period to the minimum period necessary to meet the urgent and compelling requirement and to enter into a follow-on contract through the use of competitive procedures. In general, this section limits the contract period to not more than one year. The contract period limitation can be waived by the head of the executive agency or, in the case of the Department of Defense, the secretary of a military department, the head of a defense agency, or the Under Secretary of Defense for Acquisition, Technology, and Logistics, upon a determination that the Government would be seriously injured by the limitation on the contract period.

The committee acknowledges that there may be circumstances, particularly during a time of war, during which the Department may require the use of noncompetitive contracts on the basis of urgent and compelling need. The committee believes that, in most circumstances, it should be possible to negotiate follow-on contracts using competitive procedures within a one-year period. The committee provides a waiver to this limitation in recognition of the fact that, in some cases, it may be possible that the limitation on the contract period would result in injury to the Government. The committee has not limited the delegation of this waiver authority, but expects that it will be assigned at a level appropriate for making a determination on the possibility of serious injury occurring due to the limitation of the contract period.

Senate Armed Services Committee Report 110-77

The committee recommends a provision that would: (1) require that task or delivery order contracts for or on behalf of the Department of Defense (DOD) in excess of $100.0 million be awarded to multiple contractors, with certain exceptions; and (2) establish enhanced competition requirements (including requirements for debriefings and authorization of bid protests) for task or delivery orders in excess of $5.0 million under such multiple award contracts.

At the committee's April 19, 2007 hearing on DOD's management of costs under the Logistics Civil Augmentation Program (LOGCAP) contract in Iraq, Senator Levin asked why the Army had waited 5 years to split the LOGCAP contract among multiple contractors, allowing for the competition of individual task orders. The Assistant Secretary of the Army for Acquisition, Technology, and Logistics responded: `I don't have a good answer for you.' The provision recommended by the committee would ensure that future contracts of this type provide for the competition of task and delivery orders unless there is a compelling reason not to do so.

The committee notes that the enhanced task and delivery order competition requirements in the provision would implement the recommendations of the Acquisition Advisory Panel chartered pursuant to section 1423 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136).