S.338 A BILL IN THE SENATE OF THE UNITED STATES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000300350022-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 40
• Document Creation Date: December 21, 2016
• Document Release Date: October 24, 2008
• Sequence Number: 22
• Publication Date: February 1, 1983
• Content Type: OPEN SOURCE

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98TH CONGRESS
1ST SESSION
Se338
To revise the procedures for soliciting and evaluating bids and proposals for
Government contracts and awarding such contracts, and for other purposes.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 1 (legislative day, JANUARY 25), 1983
Mr. COHEN (for himself, Mr. ROTH, Mr. LEVIN, Mr. RUDMAN, Mr. PERCY, Mr.
DURENBERGER, Mr. STEVENS, Mr. DANFORTH, Mr. PRYOR, Mr. PROX-
MIRE, Mr. HEINZ, and Mr. MITCHELL) introduced the following bill; which
was read twice and referred to the Committee on Governmental Affairs
FEBRUARY 2 (legislative day, JANUARY 25), 1983
Ordered, that if and when reported, the bill be referred to the Committee on
Armed Services for not to exceed sixty calendar days (excluding any period
of seven or more calendar days that the Senate is not in session) to consider
any provisions which amend title 10 of the United States Code. Ordered fur-
ther, that if the bill is not reported within the sixty-day period the committee
will be discharged, but in no event will the committee be discharged prior to
June 15, 1983
MARCH 23 (legislative day, MARCH 21), 1983
Reported by Mr. COHEN, with amendments
[Omit the part struck through and insert the part printed in italic]
Referred to the Committee on Armed Services pursuant to the order of
February 2, 1983
A BILL
To revise the procedures for soliciting and evaluating bids and
proposals for Government contracts and awarding such con-
tracts, and for other purposes.
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1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Competition in Contract-
4 ing Act of 1983".
5 TITLE I-AMENDMENTS TO FEDERAL PROPERTY
6 AND ADMINISTRATIVE SERVICES ACT OF 1949
7 COMPETITIVE AND NONCOMPETITIVE PROCEDURES
8 SEC. 101. (a) Title III of the Federal Property and Ad-
9 ministrative Services Act of 1949 (41 U.S.C. 251 et seq.) is
10 amended-
11 (1) by striking out section 303 (41 U.S.C. 253)
12 and the heading of such section and inserting in lieu
13 thereof the following:
14 "COMPETITION REQUIREMENTS
15 "SEC. 303. (a) Except as provided in subsection (e) or
16 otherwise authorized by law, executive agencies shall use
17 competitive procedures in making contracts for property and
18 services. Executive agencies shall use advance procurement
19 planning and market research and shall prepare specifications
20 in such a manner as is necessary to obtain effective competi-
21 tion with due regard to the nature of the property or services
22 to be acquired. Executive agencies shall use the competitive
23 procedure or combination of competitive procedures that is
24 best suited under the circumstances of the procurement
25 action and shall specify its needs and solicit bids, proposals,
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1 or quotations in a manner designed to achieve effective com-
2 petition for the contract.
3 "(b) An executive agency may award a contract under
4 this title in the procurement of property or services in order
5 to establish or maintain any alternative source or sources of
6 supply of such property or services if the executive agency
7 determines that to do so would (1) increase competition and
8 would likely result in reduced overall costs for such procure-
9 ment, or for any anticipated procurement, of such property or
10 services, or (2) be in the interest of industrial mobilization in
11 case of a national emergency.
12 "(c) Procurement regulations shall include special sim-
13 plified procedures and forms for small purchases to facilitate
14 making small purchases efficiently and economically.
15 "(d) For other than small purchases, an executive
16 agency, when using competitive procedures-
17 "(1) shall solicit sealed bids when-
18 "(A) time permits the solicitation, submis-
19 sion, and evaluation of sealed bids;
20 "(B) the award will be made on the basis of
21 price and other factors considered;
22 "(C) it is not necessary to conduct discus-
23 sions with the responding sources about their bids;
24 and
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"(D) there is a reasonable expectation of re-
2 ceiving more than one sealed bid;
3 "(2) shall request competitive proposals when
4 sealed bids are not required under clause (1) of this
5 subsection.
6 "(e) An executive agency may use noncompetitive pro-
7 cedures only when-
8 "(1) the property and services needed by the Gov-
9 ernment are available from only one source and no
10 other type of property or services will satisfy the needs
11 of the executive agency;
12 "(2) the executive agency's need for the property
13 or services is of such unusual and compelling urgency
14 that the Government would be seriously injured by the
15 delay involved in using competitive procedures;
16 "(3) it is necessary to award the contract to a
17 particular source or sources in order to maintain an es-
18 sential industrial capability in the United States or to
19 achieve national industrial mobilization;
20 "(4) the terms of *ay agreement v4h any inter-
21 national agreement or treaty between the United States
22 Government and a foreign government, or the direc-
23 tions of any foreign government reimbursing the execu-
24 tive agency for the cost of the procurement of the
25 property or services for such government, have the
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1 effect of requiring the use of noncompetitive proce-
2 dures;
3 "(5) a statute provides that the procurement be
4 made through another executive agency or a specified
5 source; or
6 "(6) the disclosure of the executive agency's needs
7 to more than one source would compromise the nation-
8 al security.
9 "(f) An executive agency may not award a contract, fer
10 Wief than small purehases, u rg neneempet preeedrres
11 mess f eetiee h*s been published pursuant to seetion
12 313(a)( 1 using noncompetitive procedures unless-
13 "(1) in the case of any contract other than a
14 small purchase, a notice has been published with re-
15 spect to such contract pursuant to section 313 and all
16 bids, proposals, and quotations received in response to
17 such notice have been considered by such executive
18 agency; and
19 "(2) in the case of any contract exceeding
20 $100,000, the use of such procedures is approved by
21 the head of the organizational element of such executive
22 agency which has the responsibility to enter into such
23 contract or by a designee of the head of such organiza-
24 tional element who is higher in such organizational ele-
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1
ment than the contracting officer issuing the solicita-
2
tion with respect to such contract. '
3
(2) by adding at the end of section 309
(41
4
U.S.C. 259) the following new subsections:
5
"(b) The term `executive agency' has the same meaning
6 as provided in section 4(a) of the Office of Federal Procure-
7 ment Policy Act (41 U.S.C. 403(a)), except that such term
8 does not include the departments or establishments specified
9 in section 2303(a) of title 10, United States Code.
10 "(c) The term `competitive procedures' means proce-
11 dures under which an executive agency enters into a, contract
12 after soliciting sealed bids or competitive proposals from
13 more than one source that is capable of satisfying the needs
14 of the executive agency.
15 "(d) The term `noncompetitive procedures' means proce-
16 dures other than competitive procedures.
17 "(e) The term `small purchase' means any purchase or
18 contract which does not exceed $25,000. A proposed pro-
19 curement shall not be divided into several procurements pri-
20 marily for the purpose of using the small purchase proce-
21 dures."; and
22 (3) by adding at the end thereof the following new
23 sections:
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1 "SOLICITATION REQUIREMENTS
2 "SEC. 311. (a)(1) Each solicitation under this title shall
3 include specifications which-
4 "(A) consistent with the needs of the executive
5 agency, permit effective competition; and
6 "(B) include restrictive provisions or conditions
7 only to the extent necessary to satisfy such needs or as
8 authorized by law.
9 "(2) For the purposes of paragraph (1), the type of spec-
10 ification included in any solicitation shall depend on the
11 nature of the needs of the executive agency and the market
12 available to satisfy such needs. Subject to such needs, specifi-
13 cations may be stated in terms of-
14 "(A) function so that a variety of products or
15 services may qualify;
16 "(B) performance, including specifications of the
17 range of acceptable characteristics or of the minimum
18 acceptable standards; or
19 "(C) design requirements.
20 "(b) Each solicitation for sealed bids or competitive pro-
21 posals other than for small purchases shall include, in addi-
22 tion to the specifications described in subsection (a)-
23 "(1) a statement of-
24 "(A) all significant factors, including price,
25 which the executive agency reasonably expects to
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1 consider in evaluating sealed bids or competitive
2 proposals; and
3 "(B) the relative importance assigned to
4 those factors;
5 "(2) in the case of sealed bids-
6 "(A) a statement that sealed bids will be
7 evaluated without discussions with the bidders;
8 and
9 "(B) the time and place for the opening of
10 the sealed bids; and
11 "(3) in the case of competitive proposals-
12 "(A) a statement that the proposals are in-
13 tended to be evaluated with, and awards made
14 after, discussions with the offerors but might be
15 evaluated and awarded without discussions with
16 the offerors; and
17 "(B) the time and place for submission of
18 proposals.
19 "EVALUATION AND AWARD
20 "SEC. 312. (a) An executive agency shall evaluate
21 sealed bids and competitive proposals based on the factors
22 specified in the solicitation.
23 "(b) All sealed bids or competitive proposals received in
24 response to a solicitation may be rejected if the head of the
S 338 RS
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1 executive agency determines that such action is in the public
2 interest.
3 "(c) Sealed bids shall be opened publicly at the time and
4 place stated in the solicitation. The executive agency shall
5 evaluate the bids without discussions with the bidders and
6 shall, except as provided in subsection (b), award a contract
7 with reasonable promptness to the responsible bidder whose
8 bid conforms to the solicitation and is most advantageous to
9 the United States, considering the price and the other factors
10 included in the solicitation under section 311(b)(1). The
11 award of a contract shall be made by transmitting written
12 notice of the award to the successful bidder.
13 "(d)(1) The executive agency shall evaluate competitive
14 proposals and may award a contract-
15 "(A) after discussions conducted with the offerors
16 at any time after receipt of the proposals and prior to
17 the award of the contract; or
18 "(B) without discussions with the offerors beyond
19 discussions conducted for the purpose of minor clarifi-
20 cation.
21 "(2) In the case of award of a contract under paragraph
22 (1)4 (A), the executive agency shall conduct, before such
23 award, written or oral discussions with all responsible offer-
24 ors who submit proposals within a competitive range, price,
25 and other evaluation factors considered.
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1 "(3) In the case of award of a contract under paragraph
2 (1)(B), the executive agency shall award the contract based
3 on the proposals as received (and as clarified, if necessary, in
4 discussions conducted for the purpose of minor clarification).
5 "(4) The executive agency shall, except as otherwise
6 provided in subsection (b), award a contract with reasonable
7 promptness to the responsible offeror whose proposal is most
8 advantageous to the United States, considering price and the
9 other factors included in the solicitation under section
10 311(b)(1). The executive agency shall award the contract by
11 transmitting written notice of the award to such offeror and
12 shall promptly notify all other offerors of the rejection of their
13 proposals.
14 "(e) If the head of an executive agency considers that
15 any bid received under sealed bid procedures evidences a vio-
16 lation of the antitrust laws, he shall refer the bid to the At-
17 torney General for appropriate action.
18
"PROCUREMENT NOTICE
19 "SEC. 313. (a)(1) Except as provided in subsection (-e)
20 a to paragraph (2) (c)-
21 "(A) an executive agency intending to enter- i4o
22 solicit bids, proposals, or quotations for a contract for
23 property or services at a price exceeding the e~
24 amount estate ?er ema1l par-ehases ift seetien
25 309(c) $10,000 shall furnish for publication by the See-
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1 retary of Commerce a notice described in subsection
2 (b)4); and
3 "(B) an executive agency awarding a contract for
4 property or services at a price exceeding theme
5 amount established ?ef small porehases in section
6 309(e) $10,000 shall furnish for publication by the Sec-
7 retary of Commerce a notice announcing such award if
8 there is likely to be any subcontract under such
9 contract.
10 424 The ?er dal Procurement Policy
11 wifty establish i ueh fftiflifflw~fl prise ae he eensiders apprepri-
12 ate ?of the pur-poses of pffagr-aph at as amount th4 is,
13 lower- than the amount referred to in elan a (A) or (B) of sash
14
15 "(2) The Secretary of Commerce shall publish promptly
16 in the Commerce Business Daily each notice required by
17 paragraph (1).
18 "(3) Whenever an executive agency is required by para-
19 graph (1) (A) to furnish a notice of a solicitation to the Secre-
20 tary of Commerce, such executive agency may not-
21 "(A) issue such solicitation earlier than fifteen
22 days after the date on which such notice is published
23 by the Secretary of Commerce; or
24 "(B) establish a deadline for the submission of
25 bids, proposals, or quotations in response to such solici-
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1 tation that is earlier than thirty days after the date on
2 which such solicitation is issued.
3 "(b)(44 Each notice required by subsection (a)(1)(A) shall
4 include-
5 "(s) be published as early as practicable in the
6 pfeettf em preeess, btrt net less than thirty days
7 before the date set ?ef the receipt of bids of pf epemis;
8 aed
14134
10 144 a desefiptiee of the property of serviees
11 to be ted?o whiehdesefiptieft ieeet'x-
12 fteeessftr-ily rc i e of competition;
13 ) the identity and leeation of the officer of
14 employee of the emeeative ageney who t ay be
15 eentaeted fef the purpose of obtainin a espy of
16 the seheitftfien,;
17 "(iii) e statement that any person may
18 submit a bid; proposal, of quotation which shall
19 be eensidered by the executive ageney; and
20 "(iv) in the ease of a pfeettfeme ~t using non
21 eempetitive preeedures, e statement of the reason
22 justifying the ese of nefteempet procedures
23 and the identity of the intended se ee.
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1 424 The Secretary of Cow.-%er-ee shag publish promptly
2 each notice required by subseefien (a)(1)(B) aver the time of
3 the award of the contract. * to 4 4e) The of subsection W 4e eet a
5 to-
6 41) elaesifie4 Preeer-effle with respect to
7 Leh a notice ender such Subseetieft ea et be written
8 in affiftfifter- Whieh avoids fihediselesttr-e of elassifie4
9 ; and
10 424 aii-y procurement under een&iens 4eseribe4
11 in uses 4)' of (6) of Seetieft 808(e).
12 "(1) a description of the property or services to be
13 contracted for, which description is not unnecessarily
14 restrictive of competition;
15 "(2) the name and address of the officer or em-
16 ployee of the executive agency who may be contacted
17 for the purpose of obtaining a copy of the solicitation;
18 "(3) a statement that any person may submit a
19 bid, proposal, or quotation which shall be considered by
20 the executive agency; and
21 "(4) in the case of a procurement using noncom-
22 petitive procedures, a statement of the reason justifying
23 the use of noncompetitive procedures and the identity of
24 the intended source.
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1 "(c)(1) A notice is not required under subsection (a) (1)
2 if the notice would disclose the executive agency's needs and
3 the disclosure of such needs would compromise the national
4 security.
5 "(2) The requirements of subsection (a) (1) (A) do not
6 apply-
7 "(A) to any procurement under conditions de-
8 scribed in clause (2), (3), (4), or (5) of section 303(e);
9 and
10 "(B) in the case of any procurement for which the
11 head of the executive agency carrying out such procure-
12 ment makes a determination in writing, with the con-
13 currence of the Administrator of the Small Business
14 Administration, that it is not appropriate or reasonable
15 to publish a notice before issuing a solicitation.
16 "RECORD REQUIREMENTS
17 "SEC. 314. (a) Each executive agency shall establish
18 and maintain for a period of five years a record, by fiscal
19 year, of the procurements, other than small purchases, in
20 such fiscal year in which-
21 "(1) noncompetitive procedures were used; and
22 "(2) only one bid or proposal was received after
23 competitive procedures were used.
24 "(b) The record established under subsection (a) shall
25 include, with respect to each procurement-
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1 "(1) information identifying the source to whom
2 the contract was awarded;
3 "(2) the property or services obtained by the Gov-
4 ernment under the procurement;
5 "(3) the total cost of the procurement;
6 "(4) the reason under section 303(e) for the use of
7 noncompetitive procedures; and
8 "(5) the position of the officers or employees of
9 the executive agency who required and approved the
10 use of noncompetitive procedures in such procurement.
11 "(c) The information included in the record established
12 and maintained under subsection (a) shall be transmitted to
13 the Federal Procurement Data Center referred to in section
14 6(d)(5) of the Office of Federal Procurement Policy Act (41
15 U.S.C.405(d)(5)).".
16 (b) The table of contents of such Act is amended-
17 (1) by striking out the item relating to section 303
18 and inserting in lieu thereof the following:
"Sec. 303. Competition requirements.";
19 and
20 (2) by inserting after the item relating to section
21 310 the following new items:
"Sec. 311. Solicitation requirements.
"Sec. 312. Evaluation of bids; awards.
"Sec. 313. Procurement notice.
"Sec. 314. Record requirements.".
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1 COST AND PRICING DATA
2 SEC. 102. Section 304 of the Federal Property and Ad-
3 ministrative Services Act of 1949 (41 U.S.C. 254) is amend-
4 ed by adding at the end thereof the following new subsection:
5 "(d)(1) A prime contractor or any subcontractor shall be
6 required to submit cost or pricing data under the circum-
7 stances listed below, and shall be required to certify that, to
8 the best of his knowledge and belief, the cost or pricing data
9 he submitted was accurate, complete, and current-
10 "(A) prior to the award of any prime contract
11 under this title using other than sealed bid procedures
12 where the price is expected to exceed $600,000
13 $100, 000;
14 "(B) prior to the pricing of any contract change or
15 modification for which the price adjustment is expected
16 to exceed $500,000 $100,000, or such lesser amount
17 as may be prescribed by the head of the agency;
18 "(C) prior to the award of a subcontract at any
19 tier, where the prime contractor and each higher tier
20 subcontractor have been required to furnish such a cer-
21 tificate, if the price of such subcontract is expected to
22 exceed $500,000 $100,000; or
23 "(D) prior to the pricing of any contract change
24 or modification to a subcontract covered by clause (C),
25 for which the price adjustment is expected to exceed
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1 $500,000 $100,000, or such lesser amount as may be
2 prescribed by the head of the agency.
3 "(2) Any prime contract or change or modification
4 thereto under which a certificate is required under paragraph
5 (1) shall contain a provision that the price to the Govern-
6 ment, including profit or fee, shall be adjusted to exclude any
7 significant sums by which it may be determined by the execu-
8 tive agency that such price was increased because the con-
9 tractor or any subcontractor required to furnish such a certifi-
10 cate, furnished cost or pricing data which, as of a date agreed
11 upon between the parties (which date shall be as close to the
12 date of agreement on the price as is practicable), was inaccu-
13 rate, incomplete, or noncurrent.
14 "(3) For the purpose of evaluating the accuracy, com-
15 pleteness, and currency of cost or pricing data required to be
16 submitted by this subsection, any authorized representative of
17 the head of the agency who is an employee of the United
18 States Government shall have the right, until the expiration
19 of three years after final payment under the contract or sub-
20 contract, to examine all books, records, documents, and other
21 data of the contractor or subcontractor related to the propos-
22 al for the contract, the discussions conducted on the proposal
23 under this chapter, pricing, or performance of the contract or
24 subcontract.
S 338 RS--3
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1 "(4) The requirements of this subsection need not be
2 applied to contracts or subcontracts where the price is based
3 on adequate price competition, established catalog or market
4 prices of commercial items sold in substantial quantities to
5 the general public, prices set by law or regulation or, in ex-
6 ceptional cases where the head of the executive agency de-
7 termines that the requirements of this subsection may be
8 waived and states in writing his reasons for such determina-
9 tion.".
10 CONFORMING AMENDMENTS
11 SEC. 103. (a) Title III of the Federal Property and Ad-
12 ministrative Services Act of 1949 (41 U.S.C. 251 et seq.) is
13 amended-
14 (1) in section 302 (41 U.S.C. 252)-
15 (A) by striking out the second sentence in
16 subsection (b);
17 (B) by striking out subsections (c) and (d);
18 and
19 (C) by redesignating subsections (e) and (f) as
20 subsections (c) and (d), respectively;
21 (2) by striking out the heading of section 304 and
22 inserting in lieu thereof the following:
23 "CONTRACT REQUIREMENTS";
24 (3) in section 304 (41 U.S.C. 254)-
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1 (A) by striking out "negotiated pursuant to
2 section 302(c)" in the first sentence of subsection
3 (a) and inserting in lieu thereof "awarded using
4 other than sealed bid procedures";
5 (B) by striking out "negotiated pursuant to
6 section 302(c)" in the second sentence of subsec-
7 tion (a) and inserting in lieu thereof "awarded
8 after using other than sealed bid procedures"; and
9 (C) by striking out "negotiated without ad-
10 vertising pursuant to authority contained in this
11 Act" in the first sentence of subsection (c) and in-
12 serting in lieu thereof "awarded after using other
13 than sealed bid procedures";
14 (4) in section 307 (41 U.S.C. 257)-
15 (A) by striking out "Except as provided in
16 subsection (b), and except" in the second sentence
17 of subsection (a) and inserting in lieu thereof
18 "Except";
19 (B) by striking out subsection (b);
20 (C) by striking out "by paragraphs (11)-(13),
21 or (14) of section 302(c)," in subsection (c);
22 (D) by redesignating subsection (c) as subsec-
23 tion (b); and
24 (E) by striking out subsection (d);
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1 (5) by striking out "entered into pursuant to sec-
2 tion 302(c) without advertising," in section 308 and in-
3 serting in lieu thereof "made or awarded after using
4 other than sealed bid procedures"; and
5 (6) by striking out "section 302(c)(15) of this title
6 without regard to the advertising requirements of sec-
7 tions 302(c) and 303." in section 310 and inserting in
8 lieu thereof "the provisions of this title relating to
9 other than sealed bid procedures.".
10 (b) The table of contents of such Act is amended by
11 striking out the item relating to section 304 and inserting in
12- lieu thereof the following:
"Sec. 304. Contract requirements.".
13 TITLE II-AMENDMENTS TO TITLE 10, UNITED
14 STATES CODE
15 COMPETITIVE AND NONCOMPETITIVE PROCEDURES
16 SEC. 201. (a) Chapter 137 of title 10, United States
17 Code, is amended-
18 (1) in section 2302-
19 (A) by inserting "the Secretary, any Deputy
20 Secretary, any Under Secretary, or any Assistant
21 Secretary of Defense;" after "means" in clause
22 (1);
23 (B) by striking out clauses (2) and (3) of sec-
24 tion 2302 and inserting in lieu thereof the follow-
25 ing:
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1 "(2) `Agency' means any department or establish-
2 ment specified in section 2303(a) of this title.
3 "(3) `Competitive procedures' means procedures
4 under which the head of an agency enters into a con-
5 tract after soliciting sealed bids or competitive propos-
6 als from more than one source that is capable of satis-
7 fying the needs of the agency.
8 "(4) `Noncompetitive procedures' means proce-
9 dures other than competitive procedures.
10 "(5) `Small purchase' means any purchase or con-
11 tract which does not exceed $25,000. A proposed pro-
12 curement shall not be divided into several procure-
13 ments primarily for the purpose of using small pur-
14 chase procedures.";
15 (2) in section 2303(a)-
16 (A) by redesignating clauses (1), (2), (3), (4),
17 and (5) as clauses (2), (3), (4), (5), and (6), respec-
18 tively; and
19 (B) by inserting before clause (2) (as redesig-
20 nated by subclause (A)) the following:
21 "(1) The Department of Defense.";
22 (3) by striking out sections 2304 and 2305 and in-
23 serting in lieu thereof the following:
S 338 RS
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1 "? 2304. Competition requirements
2 "(a) Except as provided in subsection (e) of this section
3 or otherwise authorized by law, the head of an agency shall
4 use competitive procedures in making contracts for property
5 and services. The head of an agency shall use advance pro-
6 curement planning and market research and shall prepare
7 specifications in such a manner as is necessary to obtain ef-
8 fective competition with due regard to the nature of the prop-
9 erty or services to be acquired. The head of an agency shall
10 use the competitive procedure or combination of competitive
11 procedures that is best suited under the circumstances of the
12 procurement action and shall specify the needs of the agency
13 and solicit bids, proposals, or quotations in a manner de-
14 signed to achieve effective competition for the contract.
15 "(b) The head of an agency may award a contract under
16 this title in the procurement of property or services in order
17 to establish or maintain any alternative source or sources of
18 supply of such property or services if such head of an agency
19 determines that to do so would (1) increase competition and
20 would likely result in reduced overall costs for such procure-
21 ment, or for any anticipated procurement, of property or
22 services, or (2) be in the interest of industrial mobilization in
23 case of a national emergency.
24 "(c) Procurement regulations shall include special sim-
25 plified procedures and forms for small purchases to facilitate
26 making small purchases efficiently and economically.
S 338 RS
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1 "(d) For other than small purchases, the head of an
2 agency, when using competitive procedures-
3 "(1) shall solicit sealed bids when-
4 "(A) time permits the solicitation, submis-
5 sion, and evaluation of sealed bids;
6 "(B) the award will be made on the basis of
7 price and other factors considered;
8 "(C) it is not necessary to conduct discus-
9 sions with the responding sources about their bids;
10 and
11 "(D) there is reasonable expectation of re-
12 ceiving more than one sealed bid;
13 "(2) shall request competitive proposals from re-
14 sponding sources when sealed bids are not required
15 under clause (1) of this subsection.
16 "(e) The head of an agency may use noncompetitive
17 procedures only when-
18 "(1) the property and services needed by the Gov-
19 ernment are available from only one source and no
20 other type of property or services will satisfy the needs
21 of the agency;
22 "(2) the agency's need for the property or services
23 is -of such unusual and compelling urgency that the
24 Government would be seriously injured by the delay
25 involved in using competitive procedures;
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1 "(3) it is necessary to award the contract to a
2 particular source or sources in order to maintain an es-
3 sential industrial capability in the United States or to
4 achieve national industrial mobilization;
5 "(4) the terms of any agrees any inter-
6 national agreement or treaty between the United States
7 Government and a foreign government, or the direc-
8 tions of any foreign government reimbursing the
9 agency for the cost of the procurement of the property
10 or services for such government, have the effect of re-
11 quiring the use of noncompetitive procedures;
12 "(5) a statute provides that the procurement be
13 made through another agency or a specified source; or
14 "(6) the disclosure of the agency's needs to more
15 than one source would compromise the national secu-
16 rity.
17 "(f) The head of an agency may not award a contract;
18 fef ether than small purees using net a preee
19 ice unless a notice leas been published pursuant to seetien
20 2305(e)("~ of tie title. using noncompetitive procedures
21 unless-
22 "(1) in the case of any contract other than a
23 small purchase, a notice has been published with re-
24 spect to such contract pursuant to section 2305(c) of
25 this title and all bids, proposals, and quotations re-
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1 ceived in response to such notice have been considered
2 by such head of an agency; and
3 "(2) in the case of any contract exceeding
4 $100,000, the use of such procedures is approved by
5 the head of the organizational element of such agency
6 which has the responsibility to enter into such contract
7 or by a designee of the head of such organizational ele-
8 ment who is higher in such organizational element
9 than the contracting officer issuing the solicitation with
10 respect to such contract.
11 "? 2305. Solicitation, evaluation, and award procedures;
12 notice requirements
13 "(a)(1)(A) Each solicitation under this title shall include
14 specifications which-
15 "(i) consistent with the needs of the agency,
16 permit effective competition; and
17 "(ii) include restrictive provisions or conditions
18 only to the extent necessary to satisfy such needs or as
19 authorized by law.
20 "(B) For the purposes of subparagraph (A) of this para-
21 graph, the type of specification included in any solicitation
22 shall depend on the nature of the needs of the agency and the
23 market available to satisfy such needs. Subject to such needs,
24 specifications may be stated in terms of-
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1 "(i) function so that a variety of products or serv-
2 ices may qualify;
3 "(ii) performance, including specifications of the
4 range of acceptable characteristics or of the minimum
5 acceptable standards; or
6 "(iii) design requirements.
7 "(2) Each solicitation for sealed bids or competitive pro-
8 posals other than for small purchases shall include, in addi-
9 tion to the specifications described in paragraph (1) of this
10 subsection-
11 "(A) a statement of-
12 "(i) all significant factors, including price,
13 which the executive agency reasonably expects to
14 consider in evaluating sealed bids or competitive
15 proposals; and
16 "(ii) the relative importance assigned to
17 those factors;
18 "(B) in the case of sealed bids-
19 "(i) a statement that sealed bids will be eval-
20 uated without discussions with the bidders; and
21 "(ii) the time and place for the opening of
22 the sealed bids; and
23 "(C) in the case of competitive proposals-
24 "(i) a statement that the proposals are in-
25 tended to be evaluated with, and awards made
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1 after, discussions with the offerors but might be
2 evaluated and awarded without discussions with
3 the offerors; and
4 "(ii) the time and place for submission of
5 proposals.
6 "(b)(1) The head of an agency shall evaluate sealed bids
7 and competitive proposals based on the factors specified in
8 the solicitation.
9 "(2) All sealed bids or competitive proposals received in
10 response to a solicitation may be rejected if the head of an
11 agency determines that such action is in the public interest.
12 "(3) Sealed bids shall be opened publicly at the time and
13 place stated in the solicitation. The head of an agency shall
14 evaluate the bids without discussions with the bidders and
15 shall, except as provided in paragraph (2) of this subsection,
16 award a contract with reasonable promptness to the responsi-
17 ble bidder whose bid conforms to the solicitation and is most
18 advantageous to the United States, considering the price and
19 the other factors included in the solicitation under subsection
20 (a)(2)(A) of this section. The award of a contract shall be
21 made by transmitting written notice of the award to the suc-
22 cessful bidder.
23 "(4)(A) The head of an agency shall evaluate competi-
24 tive proposals and may award a contract-
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1 "(i) after discussions conducted with the offerors
2 at any time after receipt of the proposals and prior to
3 the award of the contract; or
4 "(ii) without discussions with the offerors beyond
5 discussions conducted for the purpose of minor clarifi-
6 cation.
7 "(B) In the case of award of a contract under subpara-
8 graph (A)(i) of this paragraph, the head of an agency shall
9 conduct, before such award, written or oral discussions with
10 all responsible offerors who submit proposals within a com-
11 petitive range, price and other evaluation factors considered.
12 "(C) In the case of award of a contract under subpara-
13 graph (A)(ii) of this paragraph, the head of an agency shall
14 award the contract based on the proposals received (and as
15 clarified, if necessary, in discussions conducted for the pur-
16 pose of minor clarification).
17 "(D) The head of an agency shall, except as provided in
18 paragraph (2) of this subsection, award a contract with rea-
19 sonable promptness to the responsible offeror whose proposal
20 is most advantageous to the United States, considering price
21 and other factors included in the solicitation under subsection
22 (a)(2)(A) of this section. The head of the agency shall award
23 the contract by transmitting written notice of the award to
24 such offeror and shall promptly notify all other offerors of the
25~ rejection of their proposals.
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1 "(5) If the head of an agency considers that any bid
2 received under sealed bid procedures evidences a violation of
3 the antitrust laws, he shall refer the bid to the Attorney Gen-
4 eral for appropriate action.
5 "(c)(1)(A) Except as provided in paragraph (3) of this
6 subsection axd sweet to subpa-FagFaO ( of thims, para
7 g--~ubsection-
8 "(i) a head of an agency intending to enter- iWte
9 solicit bids, proposals, or quotations for a contract for
10 property or services at a price exceeding the ma3~
11 amount established ?e small perehases i section
12 2302(5) of this We $10,000 shall furnish for publica-
13 tion by the Secretary of Commerce a notice described
14 in paragraph (2)(A4 of this subsection; and
15 "(ii) a head of an agency awarding a contract for
16 property or services at a price exceeding the maims
17 amount established ?ei small perkases in section
18 2302(5x) of this title $10,000 shall furnish for publica-
19 tion by the Secretary of Commerce a notice announc-
20 ing such award if there is likely to be any subcontract
21 under such contract.
22 9) The ?ei Feder-al Procurement Policy
23 may establish such mein price as he ems appropri
24 ate fef the purposes of (A) of this paragraph at
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1 ae amount that is lower than the amount referred to i elause
2 (i}of }o? fflwh .
3 "(B) The Secretary of Commerce shall publish prompt-
4 ly in the Commerce Business Daily each notice required by
5 subparagraph (A) of this paragraph.
6 "(C) Whenever a head of an agency is required by sub-
7 paragraph (A) (i) of this paragraph to furnish a notice of a
8 solicitation to the Secretary of Commerce, such head of an
9 agency may not-
10 "(i) issue such solicitation earlier than fifteen
11 days after the date on which such notice is published
12 by the Secretary of Commerce; or
13 "(ii) establish a deadline for the submission of
14 bids, proposals, or quotations in response to such solici-
15 tation that is earlier than thirty days after the date on
16 which such solicitation is issued.
17 "(2)(A) Each notice required by paragraph (1)(A)(i) of
18 this subsection shall include-
19 i44 be published as ea as practicable i the
20 preeess, bet not less than this days
21 before the date set fef the receipt of bids of proposals;
22 nod
23 -oil} de n desk of the proper of sere
24 ices to be contracted ?er (whieh is net un-
25 neeessar-ily e of eempetition), the identity aed
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1 location of the officer or employee of the ageney who
2 e be eentaeted fef the moose of obtaining a copy
3 of the selieitatienF a statement that of person e
4 submit a bid, proposal, of quotation which shad be eee-
5 sidefe by the head of agency, find in the ease of ft
6 pr-omfeme g noneempe pt's a state
7 tent of the reason justifying the ttse of noncompetitive
8 procedures aad the identity of the intended sour-ee.
9 The Secretary of Commerce ffha4 publish promptly
10 each notice reed by pafagmph (1)(A)(ii) of this su
11 after the time of the award of the contract.
12 49) he of paragraph (44 of this subsee
13 tioadenotapplyto
14 -`(A) any classified proms with respect to
15 which a notice under such par-agfaph eanflet be written
16 in a manner which avoids the disclosure of classified
17 ; attd
18 49) a under- ems described
19 i t clause (2)-, (84 (4); of (b) of section 2804(e).";- aad
20 "(A) a description of the property or services to be
21 contracted for, which description is not unnecessarily
22 restrictive of competition;
23 "(B) the name and address of the officer or em-
24 ployee of the agency who may be contacted for the pur-
25 pose of obtaining a copy of the solicitation;
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1 "(C) a statement that any person may submit a
2 bid, proposal, or quotation which shall be considered by
3 the agency; and
4 "(D) in the case of a procurement using noncom-
5 petitive procedures, a statement of the reason justifying
6 the use of noncompetitive procedures and the identity of
7 the intended source.
8 "(3)(A) A notice is not required under paragraph (1)(A)
9 of this subsection if the notice would disclose the' agency's
10 needs and the disclosure of such needs would compromise the
11 national security.
12 "(B) The requirements of paragraph (1) (A) (i) of this
13 subsection do not apply-
14 "(i) to any procurement under conditions de-
15 scribed in clause (2), (3), (4), or (5) of section 2304(e)
16 of this title; and
17 "(ii) in the case of any procurement for which the
18 head of the agency carrying out such procurement
19 makes a determination in writing, with the concurrence
20 of the Administrator of the Small Business Adminis-
21 tration, that it is not appropriate or reasonable to pub-
22 lish a notice before issuing a solicitation. ", and
23 (4) by adding at the end thereof the following new
24 section:
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1 "? 2316. Record requirements
2 "(a) Each head of an agency shall establish and main-
3 tain for a period of five years a record, by fiscal year, of the
4 procurements, other than small purchases, in such fiscal year
5 in which-
6 "(1) noncompetitive procedures were used; and
7 "(2) only one bid or proposal was received after
8 competitive procedures were used.
9 "(b) The record established under subsection (a) of this
10 section shall include, with respect to each procurement-
11 "(1) information identifying the source to whom
12 the contract was awarded;
13 "(2) the property or services obtained by the Gov-
14 ernment under the procurement;
15 "(3) the total cost of the procurement;
16 "(4) the reason under section 2304(e) of this title
17 for the use of noncompetitive procedures; and
18 "(5) the position of the officers or employees of
19 the agency who required and approved the use of non-
20 competitive procedures in such procurement.
21 "(c) The information included in the record established
22 and maintained under subsection (a) shall be transmitted to
23 the Federal Procurement Data Center referred to in section
24 6(d)(5) of the Office of Federal Procurement Policy Act (41
25 U.S.C. 405(d)(5)).".
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1 (b) The table of sections at the beginning of such chap-
2 ter is amended-
3 (1) by striking out the items relating to sections
4 2304 and 2305 and inserting in lieu thereof the
5 following:
"2304. Competition requirements.
"2305. Solicitation, evaluation, and award procedures; notice requirements.";
6 and
7 (2) by adding at the end thereof the following new
8 item:
"2316. Record requirements.".
CONFORMING AMENDMENTS
10 SEC. 202. Chapter 137 of title 10, United States Code,
11 is amended-
12 (1) in section 2306-
13 (A) by striking out "may, in negotiating con-
14 tracts under section 2304," in the second sen-
15 tence of subsection (a) and inserting in lieu thereof
16 "may in awarding contracts after using other than
17 sealed bid procedures";
18 (B) by striking out "negotiated under section
19 2304" in the first sentence of subsection (b) and
20 inserting in lieu thereof
awarded after using
21 other than sealed bid procedures";
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1 (C) by striking out "section 2304 of this
2 title," in subsection (c) and inserting in lieu there-
3 of "this chapter";
4 (D) in subsection (f)(1)-
5 (i) by striking out clause (A) and insert-
6 ing in lieu thereof the following:
7 "(1) prior to the award of any prime contract
8 under this title after using other than sealed bid proce-
9 dures where the price is expected to exceed $500000
10 $100, 000;";
11 (ii) by striking out "negotiated" each
12 place it appears in the second paragraph; a4
13 (iii) by striking out "negotiation," in the
14 third paragraph and inserting in lieu thereof
15 "proposal for the contract, the discussions
16 conducted on the proposal under this title,";
17 and
18 (iv) by striking out "$500,000" each
19 place it appears in clauses (B), (C), and (D)
20 and inserting in lieu thereof "$100,000"y-
21 and
22 (E) by adding at the end thereof the follow-
23 ing new subsection:
24 "(i) Except in a case in which the Secretary of Defense
25 determines that military requirements necessitate the specifi-
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1 cation of container sizes, no contract for the carriage of Gov-
2 ernment property in other than Government-owned cargo
3 containers shall require carriage of such property in cargo
4 containers of any stated length, height, or width.";
5 (2) by striking out subsection (b) of section 2310
6 and inserting in lieu thereof the following:
7 "(b) Each determination or decision under section
8 2306(c), section 2306(g)(1), section 2307(c), or section
9 2313(c) of this title shall be based on a written finding by the
10 person making the determination or decision, which finding
11 shall set out facts and circumstances that (1) clearly indicate
12 why the type of contract selected under section 2306(c) is
13 likely to be less costly than any other type or that it is im-
14 practicable to obtain property or services of the kind or qual-
15 ity required except under such a contract, (2) support the
16 findings required by section 2306(g)(1), (3) clearly indicate
17 why advance payments under section 2307(c) would be in the
18 public interest, or (4) clearly indicate why the application of
19 section 2313(b) to a contract or subcontract with a foreign
20 contractor or foreign subcontractor would not be in the public
21 interest. Such a finding is final and shall be kept available in
22 the agency for at least six years after the date of the determi-
23 nation or decision. A copy of the finding shall be submitted to
24 the General Accounting Office with each contract to which it
25 applies.";
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1 (3) by striking out section 2311 and inserting in
2 lieu thereof the following: "The head of an agency may
3 delegate, subject to his direction, to any other officer
4 or official of that agency, any power under this chap-
5 ter."; and
6 (4) by striking out "negotiated" in the second sen-
7 tence of section 2313(b) and inserting in lieu thereof
8 "awarded after using other than sealed bid proce-
9 dures".
10 TITLE III-ADVOCATE FOR COMPETITION;
11 ANNUAL REPORT ON COMPETITION
12 DEFINITION
13 SEC. 301. For the purposes of this title, the term "ex-
14 ecutive agency" has the same meaning as provided in section
15 4(a) of the Office of Federal Procurement Policy Act (41
16 U.S.C. 403(a)).
17 ADVOCATE FOR COMPETITION
18 SEC. 302. (a)(1) There is established in each executive
19 agency an advocate for competition.
20 (2) Each head of an executive agency shall-
21 (A) designate for each executive agency one offi-
22 cer or employee serving in a position authorized for
23 such executive agency on the date of enactment of this
24 Act to serve as the advocate for competition;
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1 (B) relieve such officer or employee of all duties
2 and responsibilities that are inconsistent with the duties
3 and responsibilities of the advocate for competition; and
4 (C) provide such officer or employee with such
5 staff or assistance as may be necessary to carry out the
6 duties and responsibilities of the advocate for competi-
7 tion.
8 (b)(1) The advocate for competition shall promote com-
9 petition in the procurement of property and services.
10 (2) The advocate for competition in an executive agency
11 shall-
12 (A) review the purchasing and contracting activi-
13 ties of the executive agency;
14 (B) identify and report to the head of the execu-
15 tive agency-
16 (i) opportunities to achieve competition on
17 the basis of price and other significant factors in
18 the purchases and contracts of the executive
19 agency;
20 (ii) solicitations and proposed solicitations
21 which include unnecessarily detailed specifications
22 or unnecessarily restrictive statements of need
23 which may reduce competition in the procurement
24 activities of the executive agency; and
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1 (iii) any other condition or action which has
2 the effect of unnecessarily restricting competition
3 in the procurement actions of the executive
4 agency; and
5 (C) prepare and transmit to the head of the execu-
6 tive agency an annual report describing his activities
7 under this section.
8 ANNUAL REPORT
9 SEC. 303. (a) Not later than September 30 of each of
10 1983, 1984, 1985, and 1986, each head of an executive
11 agency shall transmit to the Committee on Governmental Af-
12 fairs of the Senate and the Committee on Government Oper-
13 ations of the House of Representatives an annual report in-
14 cluding the information specified in subsection (b).
15 (b) Each report transmitted under subsection (a) shall
16 include-
17 (1) a specific description of all actions that the
18 head of the executive agency intends to take during
19 the next fiscal year to-
20 (A) increase competition for contracts with
21 the executive agency on the basis of price and
22 other significant factors; and
23 (B) reduce the number and dollar value of
24 contracts entered into by the executive agency
25 after soliciting bids or proposals from, or evaluat-
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1 ing bids or proposals with discussions with, only
2 one source; and
3 (2) a summary of the activities and accomplish-
4 ments of the advocates for competition of the executive
5 agency during the fiscal year in which the report is
6 transmitted. ~~~r~~
7 TITLE IV NOTICE "PER THE
8 SMALL BUSP~E ACT
9 404ection8Ee)of 4reSfflallBusiness (7-9
10 4-5 U.S:C. 637(e)) ierepealed.
11 TITLE V IV-APPLICABILITY
12 SEC. 401. The amendments made by this Act shall
13 apply with respect to any solicitations for bids or proposals
14 issued on or after the date one hundred and eighty days after
15 the date of the enactment of this Act.
0
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