§2302. Definitions
In this chapter:
(1) The term "head of an agency" means the Secretary of Defense, the Secretary of the Army, the Secretary of the Navy, the Secretary of the Air Force, the Secretary of Homeland Security, and the Administrator of the National Aeronautics and Space Administration.
(2) The term "competitive procedures" means procedures under which the head of an agency enters into a contract pursuant to full and open competition. Such term also includes-
(A) procurement of architectural or engineering services conducted in accordance with chapter 11 of title 40;
(B) the competitive selection for award of basic research proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of such proposals;
(C) the procedures established by the Administrator of General Services for the multiple award schedule program of the General Services Administration if-
(i) participation in the program has been open to all responsible sources; and
(ii) orders and contracts under such program result in the lowest overall cost alternative to meet the needs of the United States;
(D) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for such procurements are permitted to compete; and
(E) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of the Small Business Act (15 U.S.C. 638).
(3) The following terms have the meanings provided such terms in chapter 1 of title 41:
(A) The term "procurement".
(B) The term "procurement system".
(C) The term "standards".
(D) The term "full and open competition".
(E) The term "responsible source".
(F) The term "item".
(G) The term "item of supply".
(H) The term "supplies".
(I) The term "commercial item".
(J) The term "nondevelopmental item".
(K) The term "commercial component".
(L) The term "component".
(4) The term "technical data" means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency. Such term does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration.
(5) The term "major system" means a combination of elements that will function together to produce the capabilities required to fulfill a mission need. The elements may include hardware, equipment, software or any combination thereof, but excludes construction or other improvements to real property. A system shall be considered a major system if (A) the conditions of section 2302d of this title are satisfied, or (B) the system is designated a "major system" by the head of the agency responsible for the system.
(6) The term "Federal Acquisition Regulation" means the Federal Acquisition Regulation issued pursuant to section 1303(a)(1) of title 41.
(7) The term "simplified acquisition threshold" has the meaning provided that term in section 134 of title 41, except that, in the case of any contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation or a humanitarian or peacekeeping operation, the term means an amount equal to two times the amount specified for that term in such section.
(8) The term "humanitarian or peacekeeping operation" means a military operation in support of the provision of humanitarian or foreign disaster assistance or in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations. The term does not include routine training, force rotation, or stationing.
(9) The term "nontraditional defense contractor", with respect to a procurement or with respect to a transaction authorized under section 2371(a) or 2371b of this title, means an entity that is not currently performing and has not performed, for at least the one-year period preceding the solicitation of sources by the Department of Defense for the procurement or transaction, any contract or subcontract for the Department of Defense that is subject to full coverage under the cost accounting standards prescribed pursuant to section 1502 of title 41 and the regulations implementing such section.
(Aug. 10, 1956, ch. 1041,
Revised section | Source (U.S. Code) | Source (Statutes at Large) |
---|---|---|
2302 | 41:158 (less clause (b)). | Feb. 19, 1948, ch. 65, §9 (less clause (b)), |
In clause (1), the words "(if any)" are omitted as surplusage. The words "Secretary of the Treasury" are substituted for the words "Commandant, United States Coast Guard, Treasury Department", since the functions of the Coast Guard and its officers, while operating under the Department of the Treasury, were vested in the Secretary of the Treasury by 1950 Reorganization Plan No. 26, effective July 31, 1950,
Clauses (2) and (3) are inserted for clarity, and are based on the usage of those terms throughout the revised chapter.
Revised section | Source (U.S. Code) | Source (Statutes at Large) |
---|---|---|
2302(3) | [No source]. | [No source]. |
The amendments reflect section 1(44) of the bill [amending section 2305 of Title 10].
Amendments
2015-Par. (9).
"(A) Any contract or subcontract that is subject to full coverage under the cost accounting standards prescribed pursuant to chapter 15 of title 41 and the regulations implementing such chapter.
"(B) Any other contract in excess of $500,000 under which the contractor is required to submit certified cost or pricing data under section 2306a of this title."
2014-Par. (7).
Par. (9)(A).
2011-Par. (3).
Par. (6).
Par. (7).
Par. (9).
2002-Par. (1).
Par. (2)(A).
1997-Pars. (7), (8).
1996-Par. (3)(K).
Par. (5).
Par. (7).
1994-Par. (3).
Par. (7).
1991-Par. (7).
1989-Par. (6).
1987-
1986-Par. (2)(A).
1984-
Cl. (2)(D), (E).
Cls. (4), (5).
1980-Cl. (1).
1958-Cl. (1).
Cl. (3).
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1996 Amendment
"(a)
"(b)
"(1)
"(2)
"(A) a contract that is in effect on the date described in paragraph (3);
"(B) an offer under consideration on the date described in paragraph (3); or
"(C) any other proceeding or action that is ongoing on the date described in paragraph (3).
"(3)
Effective Date of 1994 Amendment
"(a)
"(b)
"(2) An amendment made by this Act shall also apply, to the extent and in the manner prescribed in the final regulations promulgated pursuant to section 10002 to implement such amendment, with respect to any matter related to-
"(A) a contract that is in effect on the date described in paragraph (3);
"(B) an offer under consideration on the date described in paragraph (3); or
"(C) any other proceeding or action that is ongoing on the date described in paragraph (3).
"(3) The date referred to in paragraphs (1) and (2) is the date specified in such final regulations [Oct. 1, 1995, see 60 F.R. 48231, Sept. 18, 1995]. The date so specified shall be October 1, 1995, or any earlier date that is not within 30 days after the date on which such final regulations are published.
"(c)
Effective Date of 1984 Amendment
"(a) Except as provided in subsection (b), the amendments made by this title [see Tables for classification] shall apply with respect to any solicitation for bids or proposals issued after March 31, 1985.
"(b) The amendments made by section 2713 [amending section 759 of former Title 40, Public Buildings, Property, and Works, and enacting provisions set out as a note under section 759 of former Title 40] and subtitle D [enacting sections 3551 to 3556 of Title 31, Money and Finance] shall apply with respect to any protest filed after January 14, 1985."
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1958 Amendment
Short Title of 1986 Amendment
Short Title of 1985 Amendment
Short Title of 1984 Amendment
Middle Tier of Acquisition for Rapid Prototyping and Rapid Fielding
"(a)
"(b)
"(1)
"(2)
"(c)
"(1)
"(2)
"(A) a merit-based process for the consideration of innovative technologies and new capabilities to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders;
"(B) a process for developing and implementing acquisition and funding strategies for the program;
"(C) a process for cost-sharing with the military departments on rapid prototype projects, to ensure an appropriate commitment to the success of such projects;
"(D) a process for demonstrating and evaluating the performance of fieldable prototypes developed pursuant to the program in an operational environment; and
"(E) a process for transitioning successful prototypes to new or existing acquisition programs for production and fielding under the rapid fielding pathway or the traditional acquisition system.
"(3)
"(A) a merit-based process for the consideration of existing products and proven technologies to meet needs communicated by the Joint Chiefs of Staff and the combatant commanders;
"(B) a process for demonstrating performance and evaluating for current operational purposes the proposed products and technologies;
"(C) a process for developing and implementing acquisition and funding strategies for the program; and
"(D) a process for considering lifecycle costs and addressing issues of logistics support and system interoperability.
"(4)
"(A) The service acquisition executive of the military department concerned shall appoint a program manager for such program from among candidates from among civilian employees or members of the Armed Forces who have significant and relevant experience managing large and complex programs.
"(B) The program manager for each program shall report with respect to such program directly, without intervening review or approval, to the service acquisition executive of the military department concerned.
"(C) The service acquisition executive of the military department concerned shall evaluate the job performance of such manager on an annual basis. In conducting an evaluation under this paragraph, a service acquisition executive shall consider the extent to which the manager has achieved the objectives of the program for which the manager is responsible, including quality, timeliness, and cost objectives.
"(D) The program manager of a defense streamlined program shall be authorized staff positions for a technical staff, including experts in business management, contracting, auditing, engineering, testing, and logistics, to enable the manager to manage the program without the technical assistance of another organizational unit of an agency to the maximum extent practicable.
"(E) The program manager of a defense streamlined program shall be authorized, in coordination with the users of the equipment and capability to be acquired and the test community, to make trade-offs among life-cycle costs, requirements, and schedules to meet the goals of the program.
"(F) The service acquisition executive, acting in coordination with the defense acquisition executive, shall serve as the milestone decision authority for the program.
"(G) The program manager of a defense streamlined program shall be provided a process to expeditiously seek a waiver from Congress from any statutory or regulatory requirement that the program manager determines adds little or no value to the management of the program.
"(d)
"(1)
"(2)
"(3)
Use of Alternative Acquisition Paths To Acquire Critical National Security Capabilities
"(1) be separate from existing acquisition procedures;
"(2) be supported by streamlined contracting, budgeting, and requirements processes;
"(3) establish alternative acquisition paths based on the capabilities being bought and the time needed to deploy these capabilities; and
"(4) maximize the use of flexible authorities in existing law and regulation."
Secretary of Defense Waiver of Acquisition Laws To Acquire Vital National Security Capabilities
"(a)
"(1) the acquisition of the capability is in the vital national security interest of the United States;
"(2) the application of the law or regulation to be waived would impede the acquisition of the capability in a manner that would undermine the national security of the United States; and
"(3) the underlying purpose of the law or regulation to be waived can be addressed in a different manner or at a different time.
"(b)
"(c)
"(1)
"(A) the establishment of a requirement or specification for the capability to be acquired;
"(B) research, development, test, and evaluation of the capability to be acquired;
"(C) production, fielding, and sustainment of the capability to be acquired; or
"(D) solicitation, selection of sources, and award of contracts for the capability to be acquired.
"(2)
"(A) the requirements of this section;
"(B) any provision of law imposing civil or criminal penalties; or
"(C) any provision of law governing the proper expenditure of appropriated funds.
"(d)
"(1) an explanation of the basis for determining that the acquisition of the capability is in the vital national security interest of the United States;
"(2) an identification of each provision of law or regulation to be waived; and
"(3) for each provision identified pursuant to paragraph (2)-
"(A) an explanation of why the application of the provision would impede the acquisition in a manner that would undermine the national security of the United States; and
"(B) a description of the time or manner in which the underlying purpose of the law or regulation to be waived will be addressed.
"(e)
Consideration of Potential Program Cost Increases and Schedule Delays Resulting From Oversight of Defense Acquisition Programs
"(a)
"(b)
Procurement of Personal Protective Equipment
Prohibition on Contracting With the Enemy
"SEC. 841. PROHIBITION ON PROVIDING FUNDS TO THE ENEMY.
"(a)
"(1) provide funds, including goods and services, received under a covered contract, grant, or cooperative agreement of an executive agency directly or indirectly to a covered person or entity; or
"(2) fail to exercise due diligence to ensure that none of the funds, including goods and services, received under a covered contract, grant, or cooperative agreement of an executive agency are provided directly or indirectly to a covered person or entity.
"(b)
"(1)
"(2)
"(3)
"(c)
"(1) Restrict the award of contracts, grants, or cooperative agreements of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contract, grant, or cooperative agreement would provide funds received under such contract, grant, or cooperative agreement directly or indirectly to a covered person or entity.
"(2) Terminate for default any contract, grant, or cooperative agreement of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contractor, or the recipient of the grant or cooperative agreement, has failed to exercise due diligence to ensure that none of the funds received under the contract, grant, or cooperative agreement are provided directly or indirectly to a covered person or entity.
"(3) Void in whole or in part any contract, grant, or cooperative agreement of the executive agency concerned upon a written determination by the head of contracting activity or other appropriate official that the contract, grant, or cooperative agreement provides funds directly or indirectly to a covered person or entity.
"(d)
"(1)
"(A) the clause described in paragraph (2) shall be included in each covered contract, grant, and cooperative agreement of an executive agency that is awarded on or after the date that is 270 days after the date of the enactment of this Act; and
"(B) to the maximum extent practicable, each covered contract, grant, and cooperative agreement of an executive agency that is awarded before the date of the enactment of this Act shall be modified to include the clause described in paragraph (2).
"(2)
"(A) requires the contractor, or the recipient of the grant or cooperative agreement, to exercise due diligence to ensure that none of the funds, including goods and services, received under the contract, grant, or cooperative agreement are provided directly or indirectly to a covered person or entity; and
"(B) notifies the contractor, or the recipient of the grant or cooperative agreement, of the authority of the head of contracting activity, or other appropriate official, to terminate or void the contract, grant, or cooperative agreement, in whole or in part, as provided in subsection (c).
"(3)
"(A) A contract, grant, or cooperative agreement that is void is unenforceable as contrary to public policy.
"(B) A contract, grant, or cooperative agreement that is void in part is unenforceable as contrary to public policy with regard to a segregable task or effort under the contract, grant, or cooperative agreement.
"(4)
"(e)
"(1) To require that any head of contracting activity, or other appropriate official, taking an action under subsection (c) to terminate, void, or restrict a contract, grant, or cooperative agreement notify in writing the contractor or recipient of the grant or cooperative agreement, as applicable, of the action.
"(2) To permit the contractor or recipient of a grant or cooperative agreement subject to an action taken under subsection (c) to terminate or void the contract, grant, or cooperative agreement, as the case may be, an opportunity to challenge the action by requesting an administrative review of the action under the procedures of the executive agency concerned not later than 30 days after receipt of notice of the action.
"(f)
"(1)
"(2)
"(g)
"(1)
"(2)
"(h)
"(1)
"(2)
"(3)
"(i)
"(1)
"(A) For each instance in which an executive agency exercised the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (c), based on a notification under subsection (b), the following:
"(i) The executive agency taking such action.
"(ii) An explanation of the basis for the action taken.
"(iii) The value of the contract, grant, or cooperative agreement voided or terminated.
"(iv) The value of all contracts, grants, or cooperative agreements of the executive agency in force with the person or entity concerned at the time the contract, grant, or cooperative agreement was terminated or voided.
"(B) For each instance in which an executive agency did not exercise the authority to terminate, void, or restrict a contract, grant, and cooperative agreement pursuant to subsection (c), based on a notification under subsection (b), the following:
"(i) The executive agency concerned.
"(ii) An explanation of the basis for not taking the action.
"(2)
"(A) be submitted in unclassified form, but with a classified annex; or
"(B) be submitted in classified form.
"(j)
"(k)
"(l)
"(m)
"(1)
"(2)
"(3)
"(n)
"SEC. 842. ADDITIONAL ACCESS TO RECORDS.
"(a)
"(1)
"(2)
"(3)
"(4)
"(b)
"(1)
"(2)
"(3)
"(c)
"(1)
"(2)
"SEC. 843. DEFINITIONS.
"In this subtitle:
"(1)
"(A) the Committee on Armed Services, the Committee on Homeland Security and Governmental Affairs, the Committee on Foreign Relations, and the Committee on Appropriations of the Senate; and
"(B) the Committee on Armed Services, the Committee on Oversight and Government Reform, the Committee on Foreign Affairs, and the Committee on Appropriations of the House of Representatives.
"(2)
"(3)
"(4)
"(A) The United States Africa Command.
"(B) The United States Central Command.
"(C) The United States European Command.
"(D) The United States Pacific Command.
"(E) The United States Southern Command.
"(F) The United States Transportation Command.
"(5)
"(6)
"(7)
"(8)
"(9)
Rapid Acquisition and Deployment Procedures for United States Special Operations Command
"(a)
"(1) urgently needed to react to an enemy threat or to respond to significant and urgent safety situations;
"(2) needed to avoid significant risk of loss of life or mission failure; or
"(3) needed to avoid collateral damage risk where the absence of collateral damage is a requirement for mission success.
"(b)
"(1) A process for streamlined communication between the Commander of the United States Special Operations Command and the acquisition and research and development communities, including-
"(A) a process for the Commander to communicate needs to the acquisition community and the research and development community; and
"(B) a process for the acquisition community and the research and development community to propose items that meet the needs communicated by the Commander.
"(2) Procedures for demonstrating, rapidly acquiring, and deploying items proposed pursuant to paragraph (1)(B), including-
"(A) a process for demonstrating performance and evaluating for current operational purposes the existing capability of an item;
"(B) a process for developing an acquisition and funding strategy for the deployment of an item; and
"(C) a process for making deployment determinations based on information obtained pursuant to subparagraphs (A) and (B).
"(c)
"(1)
"(A) an operational assessment in accordance with expedited procedures prescribed by the Director of Operational Testing and Evaluation; and
"(B) a requirement to provide information to the deployment decision-making authority about any deficiency of the item in meeting the original requirements for the item (as stated in an operational requirements document or similar document).
"(2)
"(3)
"(d)
"(e)
"(f)
"(g)
"(1)
"(2)
Consideration of Corrosion Control in Preliminary Design Review
Equipment Disposal
"(1)
"(2)
Department of Defense Policy on Contractor Profits
"(a)
"(b)
"(1) Appropriate levels of profit needed to sustain competition in the defense industry, taking into account contractor investment and cash flow.
"(2) Appropriate adjustments to address contract and performance risk assumed by the contractor, taking into account the extent to which such risk is passed on to subcontractors.
"(3) Appropriate incentives for superior performance in delivering quality products and services in a timely and cost-effective manner, taking into account such factors as prime contractor cost reduction, control of overhead costs, subcontractor cost reduction, subcontractor management, and effective competition (including the use of small business) at the subcontract level.
"(c)
Extension of Contractor Conflict of Interest Limitations
"(a)
"(1) Functions other than acquisition functions that are closely associated with inherently governmental functions (as that term is defined in section 2383(b)(3) of title 10, United States Code).
"(2) Personal services contracts (as that term is defined in section 2330a(g)(5) [2330a(h)(5)] of title 10, United States Code).
"(3) Contracts for staff augmentation services (as that term is defined in section 808(d)(3) of the National Defense Authorization Act for Fiscal Year 2012 (
"(b)
"(c)
"(1) the findings and recommendations of the review; and
"(2) the basis for such findings and recommendations."
Responsibility Within Department of Defense for Operational Contract Support
"(a)
"(b)
"(1) specify the officials, offices, and components of the Department within the chain of authority and responsibility described in subsection (a);
"(2) identify for each official, office, and component specified under paragraph (1)-
"(A) requirements for policy, planning, and execution of contract support for operational contract support, including, at a minimum, requirements in connection with-
"(i) coordination of functions, authorities, and responsibilities related to operational contract support, including coordination with relevant Federal agencies;
"(ii) assessments of total force data in support of Department force planning scenarios, including the appropriateness of and necessity for the use of contractors for identified functions;
"(iii) determinations of capability requirements for nonacquisition community operational contract support, and identification of resources required for planning, training, and execution to meet such requirements; and
"(iv) determinations of policy regarding the use of contractors by function, and identification of the training exercises that will be required for operational contract support (including an assessment [of] whether or not such exercises will include contractors); and
"(B) roles, authorities, responsibilities, and lines of supervision for the achievement of the requirements identified under subparagraph (A); and
"(3) ensure that the chain of authority and responsibility described in subsection (a) is appropriately aligned with, and appropriately integrated into, the structure of the Department for the conduct of overseas contingency operations, including the military departments, the Joint Staff, and the commanders of the unified combatant commands."
Data Collection on Contract Support for Future Overseas Contingency Operations Involving Combat Operations
"(a)
"(b)
"(1) The total number of contracts entered into as of the date of any report.
"(2) The total number of such contracts that are active as of such date.
"(3) The total value of contracts entered into as of such date.
"(4) The total value of such contracts that are active as of such date.
"(5) An identification of the extent to which the contracts entered into as of such date were entered into using competitive procedures.
"(6) The total number of contractor personnel working under contracts entered into as of the end of each calendar quarter during the one-year period ending on such date.
"(7) The total number of contractor personnel performing security functions under contracts entered into as of the end of each calendar quarter during the one-year period ending on such date.
"(8) The total number of contractor personnel killed or wounded under any contracts entered into.
"(c)
"(1)
"(A) identify each such data system and assess the resources needed to sustain such system;
"(B) determine if all such data systems are interoperable, use compatible data standards, and meet the requirements of section 2222 of title 10, United States Code; and
"(C) make recommendations on the steps that the Department of Defense, the Department of State, and the United States Agency for International Development should take to ensure that all such data systems-
"(i) meet the requirements of the guidance issued pursuant to subsections (a) and (b);
"(ii) are interoperable, use compatible data standards, and meet the requirements of section 2222 of such title; and
"(iii) are supported by appropriate business processes and rules to ensure the timeliness and reliability of data.
"(2)
"(A) The congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives].
"(B) The Committee on Foreign Relations and the Committee on Homeland Security and Governmental Affairs of the Senate.
"(C) The Committee on Foreign Affairs and the Committee on Oversight and Government Reform of the House of Representatives."
Requirements for Risk Assessments Related to Contractor Performance
"(a)
"(b)
"(1)
"(2)
"(A) the operation is not expected to continue for more than one year; and
"(B) the total amount of obligations for contracts for support of the operation for the covered agency is not expected to exceed $250,000,000.
"(3)
"(A) the operation has continued for more than one year; or
"(B) the total amount of obligations for contracts for support of the operation for the covered agency exceeds $250,000,000.
"(c)
"(1) The goals and objectives of the operation (such as risks from contractor behavior or performance that may injure innocent members of the local population or offend their sensibilities).
"(2) The continuity of the operation (such as risks from contractors refusing to perform or being unable to perform when there may be no timely replacements available).
"(3) The safety of military and civilian personnel of the United States if the presence or performance of contractor personnel creates unsafe conditions or invites attack.
"(4) The safety of contractor personnel employed by the covered agency.
"(5) The managerial control of the Government over the operation (such as risks from over-reliance on contractors to monitor other contractors or inadequate means for Government personnel to monitor contractor performance).
"(6) The critical organic or core capabilities of the Government, including critical knowledge or institutional memory of key operations areas and subject-matter expertise.
"(7) The ability of the Government to control costs, avoid organizational or personal conflicts of interest, and minimize waste, fraud, and abuse.
"(d)
"(1) For each high-risk area identified in the comprehensive risk assessment for the operation performed under subsection (b)-
"(A) specific actions to mitigate or reduce such risk, including the development of alternative capabilities to reduce reliance on contractor performance of critical functions;
"(B) measurable milestones for the implementation of planned risk mitigation or risk reduction measures; and
"(C) a process for monitoring, measuring, and documenting progress in mitigating or reducing risk.
"(2) A continuing process for identifying and addressing new and changed risks arising in the course of the operation, including the periodic reassessment of risks and the development of appropriate risk mitigation or reduction plans for any new or changed high-risk area identified.
"(e)
"(1) Private security functions, as that term is defined in section 864(a)(6) of the National Defense Authorization Act for Fiscal Year 2008 [
"(2) Training and advising Government personnel, including military and security personnel, of a host nation.
"(3) Conducting intelligence or information operations.
"(4) Any other functions that are closely associated with inherently governmental functions, including the functions set forth in section 7.503(d) of the Federal Acquisition Regulation.
"(5) Any other functions that are deemed critical to the success of the operation.
"(f)
Requirement for Focus on Urgent Operational Needs and Rapid Acquisition
"(a)
"(1)
"(2)
"(b)
"(1) Acting as an advocate within the Department of Defense for issues related to the Department's ability to rapidly respond to urgent operational needs, including programs funded and carried out by the military departments.
"(2) Improving visibility of urgent operational needs throughout the Department, including across the military departments, the Defense Agencies, and all other entities and processes in the Department that address urgent operational needs.
"(3) Ensuring that tools and mechanisms are used to track, monitor, and manage the status of urgent operational needs within the Department, from validation through procurement and fielding, including a formal feedback mechanism for the Armed Forces to provide information on how well fielded solutions are meeting urgent operational needs.
"(c)
Procurement of Tents or Other Temporary Structures
"(a)
"(b)
Inclusion of Data on Contractor Performance in Past Performance Databases for Source Selection Decisions
"(a)
"(b)
"(1) establish standards for the timeliness and completeness of past performance submissions for purposes of databases described in subsection (a);
"(2) assign responsibility and management accountability for the completeness of past performance submissions for such purposes; and
"(3) ensure that past performance submissions for such purposes are consistent with award fee evaluations in cases where such evaluations have been conducted.
"(c)
"(1) That affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases in accordance with subsection (a).
"(2) That such contractors are afforded up to 14 calendar days, from the date of delivery of the information provided in accordance with paragraph (1), to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases.
"(3) That agency evaluations of contractor past performance, including any information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1).
"(d)
"(e)
Detection and Avoidance of Counterfeit Electronic Parts
"(a)
"(b)
"(1) establish Department-wide definitions of the terms 'counterfeit electronic part' and 'suspect counterfeit electronic part', which definitions shall include previously used parts represented as new;
"(2) issue or revise guidance applicable to Department components engaged in the purchase of electronic parts to implement a risk-based approach to minimize the impact of counterfeit electronic parts or suspect counterfeit electronic parts on the Department, which guidance shall address requirements for training personnel, making sourcing decisions, ensuring traceability of parts, inspecting and testing parts, reporting and quarantining counterfeit electronic parts and suspect counterfeit electronic parts, and taking corrective actions (including actions to recover costs as described in subsection (c)(2));
"(3) issue or revise guidance applicable to the Department on remedial actions to be taken in the case of a supplier who has repeatedly failed to detect and avoid counterfeit electronic parts or otherwise failed to exercise due diligence in the detection and avoidance of such parts, including consideration of whether to suspend or debar a supplier until such time as the supplier has effectively addressed the issues that led to such failures;
"(4) establish processes for ensuring that Department personnel who become aware of, or have reason to suspect, that any end item, component, part, or material contained in supplies purchased by or for the Department contains counterfeit electronic parts or suspect counterfeit electronic parts provide a report in writing within 60 days to appropriate Government authorities and to the Government-Industry Data Exchange Program (or a similar program designated by the Secretary); and
"(5) establish a process for analyzing, assessing, and acting on reports of counterfeit electronic parts and suspect counterfeit electronic parts that are submitted in accordance with the processes under paragraph (4).
"(c)
"(1)
"(2)
"(A) covered contractors who supply electronic parts or products that include electronic parts are responsible for detecting and avoiding the use or inclusion of counterfeit electronic parts or suspect counterfeit electronic parts in such products and for any rework or corrective action that may be required to remedy the use or inclusion of such parts; and
"(B) the cost of counterfeit electronic parts and suspect counterfeit electronic parts and the cost of rework or corrective action that may be required to remedy the use or inclusion of such parts are not allowable costs under Department contracts, unless-
"(i) the covered contractor has an operational system to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts that has been reviewed and approved by the Department of Defense pursuant to subsection (e)(2)(B);
"(ii) the counterfeit electronic parts or suspect counterfeit electronic parts were provided to the covered contractor as Government property in accordance with part 45 of the Federal Acquisition Regulation or were obtained by the covered contractor in accordance with regulations described in paragraph (3); and
"(iii) the covered contractor discovers the counterfeit electronic parts or suspect counterfeit electronic parts and provides timely notice to the Government pursuant to paragraph (4).
"(3)
"(A) require that the Department and Department contractors and subcontractors at all tiers-
"(i) obtain electronic parts that are in production or currently available in stock from the original manufacturers of the parts or their authorized dealers, or from suppliers identified as trusted suppliers in accordance with regulations issued pursuant to subparagraph (C) or (D) who obtain such parts exclusively from the original manufacturers of the parts or their authorized dealers;
"(ii) obtain electronic parts that are not in production or currently available in stock from suppliers identified as trusted suppliers in accordance with regulations issued pursuant to subparagraph (C) or (D); and
"(iii) obtain electronic parts from alternate suppliers if such parts are not available from original manufacturers, their authorized dealers, or suppliers identified as trusted suppliers in accordance with regulations prescribed pursuant to subparagraph (C) or (D);
"(B) establish requirements for notification of the Department, and for inspection, testing, and authentication of electronic parts that the Department or a Department contractor or subcontractor obtains from any source other than a source described in clause (i) or (ii) of subparagraph (A), if obtaining the electronic parts in accordance with such clauses is not possible;
"(C) establish qualification requirements, consistent with the requirements of section 2319 of title 10, United States Code, pursuant to which the Department may identify as trusted suppliers those that have appropriate policies and procedures in place to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts; and
"(D) authorize Department contractors and subcontractors to identify and use additional trusted suppliers, provided that-
"(i) the standards and processes for identifying such trusted suppliers comply with established industry standards;
"(ii) the contractor or subcontractor assumes responsibility for the authenticity of parts provided by such suppliers as provided in paragraph (2); and
"(iii) the selection of such trusted suppliers is subject to review, audit, and approval by appropriate Department officials.
"(4)
"(5)
"(d)
"(e)
"(1)
"(2)
"(A) require covered contractors that supply electronic parts or systems that contain electronic parts to establish policies and procedures to eliminate counterfeit electronic parts from the defense supply chain, which policies and procedures shall address-
"(i) the training of personnel;
"(ii) the inspection and testing of electronic parts;
"(iii) processes to abolish counterfeit parts proliferation;
"(iv) mechanisms to enable traceability of parts;
"(v) use of trusted suppliers;
"(vi) the reporting and quarantining of counterfeit electronic parts and suspect counterfeit electronic parts;
"(vii) methodologies to identify suspect counterfeit parts and to rapidly determine if a suspect counterfeit part is, in fact, counterfeit;
"(viii) the design, operation, and maintenance of systems to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts; and
"(ix) the flow down of counterfeit avoidance and detection requirements to subcontractors; and
"(B) establish processes for the review and approval of contractor systems for the detection and avoidance of counterfeit electronic parts and suspect counterfeit electronic parts, which processes shall be comparable to the processes established for contractor business systems under section 893 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (
"(f)
"(1) The term 'covered contractor' has the meaning given that term in section 893(f)(2) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011.
"(2) The term 'electronic part' means an integrated circuit, a discrete electronic component (including, but not limited to, a transistor, capacitor, resistor, or diode), or a circuit assembly.
"(g)
"(1)
"(2)
"(3)
[
Reach-Back Contracting Authority for Operation Enduring Freedom and Operation New Dawn
"(a)
"(b)
"(c)
"(1) The term 'overseas increased micro-purchase threshold' means the amount specified in paragraph (1)(B) of section 1903(b) of title 41, United States Code.
"(2) The term 'overseas increased simplified acquisition threshold' means the amount specified in paragraph (2)(B) of section 1903(b) of title 41, United States Code."
Competition and Review of Contracts for Property or Services in Support of a Contingency Operation
"(a)
"(1) establish goals for competition in contracts awarded by the Secretary of Defense for the procurement of property or services to be used outside the United States in support of a contingency operation; and
"(2) develop processes by which to measure and monitor such competition, including in task-order categories for services, construction, and supplies.
"(b)
Contracts for Commercial Imaging Satellite Capacities
"(a)
"(b)
"(1) the Secretary submits to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] written certification that the waiver is in the national security interests of the United States; and
"(2) a period of 30 days has elapsed following the date on which the certification under paragraph (1) is submitted.
"(c)
Review of Acquisition Process for Rapid Fielding of Capabilities in Response to Urgent Operational Needs
"(a)
"(1)
"(2)
"(A) the Department's review of the improvement;
"(B) if the improvement is being implemented by the Department, a schedule for implementing the improvement; and
"(C) if the improvement is not being implemented by the Department, an explanation of why the improvement is not being implemented.
"(3)
"(A) Providing a streamlined, expedited, and tightly integrated iterative approach to-
"(i) the identification and validation of urgent operational needs;
"(ii) the analysis of alternatives and identification of preferred solutions;
"(iii) the development and approval of appropriate requirements and acquisition documents;
"(iv) the identification and minimization of development, integration, and manufacturing risks;
"(v) the consideration of operation and sustainment costs;
"(vi) the allocation of appropriate funding; and
"(vii) the rapid production and delivery of required capabilities.
"(B) Clearly defining the roles and responsibilities of the Office of the Secretary of Defense, the Joint Chiefs of Staff, the military departments, and other components of the Department of Defense for carrying out all phases of the process.
"(C) Designating a senior official within the Office of the Secretary of Defense with primary responsibility for making recommendations to the Secretary on the use of the authority provided by subsections (c) and (d) of section 806 of the Bob Stump National Defense Authorization Act for Fiscal Year 2003 [
"(D) Establishing a target date for the fielding of a capability pursuant to each validated urgent operational need.
"(E) Implementing a system for-
"(i) documenting key process milestones, such as funding, acquisition, fielding, and assessment decisions and actions; and
"(ii) tracking the cost, schedule, and performance of acquisitions conducted pursuant to the process.
"(F) Establishing a formal feedback mechanism for the commanders of the combatant commands to provide information to the Joint Chiefs of Staff and senior acquisition officials on how well fielded solutions are meeting urgent operational needs.
"(G) Establishing a dedicated source of funding for the rapid fielding of capabilities in response to urgent operational needs.
"(H) Issuing guidance to provide for the appropriate transition of capabilities acquired through rapid fielding into the traditional budget, requirements, and acquisition process for purposes of contracts for follow-on production, sustainment, and logistics support.
"(I) Such other improvements as the Secretary considers appropriate.
"(b)
"(1)
"(2)
"(A) apply to the rapid fielding of capabilities in response to joint urgent operational need statements and to other urgent operational needs statements generated by the military departments and the combatant commands;
"(B) identify officials responsible for making determinations described in paragraph (1);
"(C) establish appropriate time periods for making such determinations;
"(D) set forth standards and criteria for making such determinations based on considerations of urgency, risk, and life-cycle management;
"(E) establish appropriate thresholds for the applicability of the review process, or of elements of the review process; and
"(F) authorize appropriate officials to make exceptions from standards and criteria established under subparagraph (D) in exceptional circumstances.
"(3)
"(A) can be fielded within a period of two to 24 months;
"(B) do not require substantial development effort;
"(C) are based on technologies that are proven and available; and
"(D) can appropriately be acquired under fixed price contracts.
"(4)
Standards and Certification for Private Security Contractors
"(a)
"(1) determine whether the private sector has developed-
"(A) operational and business practice standards applicable to private security contractors; and
"(B) third-party certification processes for determining whether private security contractors adhere to standards described in subparagraph (A); and
"(2) review any standards and processes identified pursuant to paragraph (1) to determine whether the application of such standards and processes will make a substantial contribution to the successful performance of private security functions in areas of combat operations or other significant military operations.
"(b)
"(1) establish criteria for defining standard practices for the performance of private security functions, which shall reflect input from industry representatives as well as the Inspector General of the Department of Defense; and
"(2) establish criteria for weapons training programs for contractors performing private security functions, including minimum requirements for weapons training programs of instruction and minimum qualifications for instructors for such programs.
"(c)
"(1)
"(2)
"(d)
"(1)
"(A) a contract of the Department of Defense for the performance of services;
"(B) a subcontract at any tier under such a contract; or
"(C) a task order or delivery order issued under such a contract or subcontract.
"(2)
"(3)
"(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.
"(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.
"(e)
Pilot Program on Acquisition of Military Purpose Nondevelopmental Items
"(a)
"(1)
"(2)
"(b)
"(1) shall be a firm, fixed price contract, or a firm, fixed price contract with an economic price adjustment clause;
"(2) shall be in an amount not in excess of $100,000,000, including all options;
"(3) shall provide-
"(A) for the delivery of an initial lot of production quantities of completed items not later than nine months after the date of the award of such contract; and
"(B) that failure to make delivery as provided for under subparagraph (A) may result in the termination of such contract for default; and
"(4) shall be-
"(A) exempt from the requirement to submit certified cost or pricing data under section 2306a of title 10, United States Code, and the cost accounting standards under chapter 15 of title 41, United States Code; and
"(B) subject to the requirement to provide data other than certified cost or pricing data for the purpose of price reasonableness determinations, as provided in section 2306a(d) of title 10, United States Code.
"(c)
"(d)
"(1)
"(A) The contractor.
"(B) The item or items to be acquired.
"(C) The military purpose to be served by such item or items.
"(D) The amount of the contract.
"(E) The actions taken by the Department of Defense to ensure that the price paid for such item or items is fair and reasonable.
"(2)
"(A) enabled the Department to acquire items that otherwise might not have been available to the Department;
"(B) assisted the Department in the rapid acquisition and fielding of capabilities needed to meet urgent operational needs; and
"(C) protected the interests of the United States in paying fair and reasonable prices for the item or items acquired.
"(e)
"(1) The term 'military purpose nondevelopmental item' means a nondevelopmental item that meets a validated military requirement, as determined in writing by the responsible program manager, and has been developed exclusively at private expense. For purposes of this paragraph, an item shall not be considered to be developed exclusively at private expense if development of the item was paid for in whole or in part through-
"(A) independent research and development costs or bid and proposal costs that have been reimbursed directly or indirectly by a Federal agency or have been submitted to a Federal agency for reimbursement; or
"(B) foreign government funding.
"(2) The term 'nondevelopmental item'-
"(A) has the meaning given that term in section 110 of title 41, United States Code; and
"(B) also includes previously developed items of supply that require modifications other than those customarily available in the commercial marketplace if such modifications are consistent with the requirement in subsection (b)(3)(A).
"(3) The term 'nontraditional defense contractor' has the meaning given that term in section 2302(9) of title 10, United States Code (as added by subsection (g)).
"(4) The terms 'independent research and developments costs' and 'bid and proposal costs' have the meaning given such terms in section 31.205–18 of the Federal Acquisition Regulation.
"(f)
"(1)
"(2)
Contractor Business Systems
"(a)
"(b)
"(1) include system requirements for each type of contractor business system covered by the program;
"(2) establish a process for reviewing contractor business systems and identifying significant deficiencies in such systems;
"(3) identify officials of the Department of Defense who are responsible for the approval or disapproval of contractor business systems;
"(4) provide for the approval of any contractor business system that does not have a significant deficiency; and
"(5) provide for-
"(A) the disapproval of any contractor business system that has a significant deficiency; and
"(B) reduced reliance on, and enhanced scrutiny of, data provided by a contractor business system that has been disapproved.
"(c)
"(1) In the event a contractor business system is disapproved pursuant to subsection (b)(5), appropriate officials of the Department of Defense will be available to work with the contractor to develop a corrective action plan defining specific actions to be taken to address the significant deficiencies identified in the system and a schedule for the implementation of such actions.
"(2) An appropriate official of the Department of Defense may withhold up to 10 percent of progress payments, performance-based payments, and interim payments under covered contracts from a covered contractor, as needed to protect the interests of the Department and ensure compliance, if one or more of the contractor business systems of the contractor has been disapproved pursuant to subsection (b)(5) and has not subsequently received approval.
"(3) The amount of funds to be withheld under paragraph (2) shall be reduced if a contractor adopts an effective corrective action plan pursuant to paragraph (1) and is effectively implementing such plan.
"(d)
"(e)
"(f)
"(1) The term 'contractor business system' means an accounting system, estimating system, purchasing system, earned value management system, material management and accounting system, or property management system of a contractor.
"(2) The term 'covered contractor' means a contractor that is subject to the cost accounting standards under chapter 15 of title 41, United States Code.
"(3) The term 'covered contract' means a contract that is subject to the cost accounting standards promulgated pursuant to section 1502 of title 41, United States Code, that could be affected if the data produced by a contractor business system has a significant deficiency.
"(4) The term 'significant deficiency', in the case of a contractor business system, means a shortcoming in the system that materially affects the ability of officials of the Department of Defense and the contractor to rely upon information produced by the system that is needed for management purposes.
"(g)
"(1)
"(A) the Defense Contract Audit Agency has sufficient legal resources and expertise to conduct its work in compliance with applicable Department of Defense policies and procedures; and
"(B) such resources and expertise are provided in a manner that is consistent with the audit independence of the Defense Contract Audit Agency.
"(2)
Life-Cycle Management and Product Support
Contract Authority for Advanced Component Development or Prototype Units
"(a)
"(1) the provision of advanced component development, prototype, or initial production of technology developed under the contract; or
"(2) the delivery of initial or additional items if the item or a prototype thereof is created as the result of work performed under the contract.
"(b)
"(1)
"(2)
"(3)
"(A) The amount that is three times the dollar value of the work previously performed under the contract.
"(B) $20,000,000.
"(4)
"(5)
"(c)
"(1) the number of times a contract line item or contract option was exercised under such authority, the dollar amount of each such line item or option, and the scope of each such line item or option;
"(2) the circumstances that rendered the military department or defense agency unable to solicit and award a follow-on development or production contract in a timely fashion, but for the use of such authority;
"(3) the extent to which such authority affected competition and technology transition; and
"(4) such recommendations as the Secretary considers appropriate, including any recommendations regarding the modification or extension of such authority."
Congressional Earmarks
"(a)
"(1)
"(2)
"(A) An identification of each covered earmark that has been included in a national defense authorization Act for three or more consecutive fiscal years as of the date of the enactment of this Act.
"(B) A description of the extent to which competitive or merit-based procedures were used to award funding, or to enter into a contract, grant, or other agreement, pursuant to each covered earmark.
"(C) An identification of the specific contracting vehicle used for each covered earmark.
"(D) In the case of any covered earmark for which competitive or merit-based procedures were not used to award funding, or to enter into the contract, grant, or other agreement, a statement of the reasons competitive or merit-based procedures were not used.
"(b)
"(c)
"(1) The term 'congressional earmark' means any congressionally directed spending item (Senate) or congressional earmark (House of Representatives) on a list published in compliance with rule XLIV of the Standing Rules of the Senate or rule XXI of the Rules of the House of Representatives.
"(2) The term 'covered earmark' means any congressional earmark identified in the joint explanatory statement to accompany the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (
"(3) The term 'national defense authorization Act' means an Act authorizing funds for a fiscal year for the military activities of the Department of Defense, and for other purposes."
Consideration of Trade-Offs Among Cost, Schedule, and Performance Objectives in Department of Defense Acquisition Programs
"(1)
"(2)
"(A) Department of Defense officials responsible for acquisition, budget, and cost estimating functions are provided an appropriate opportunity to develop estimates and raise cost and schedule matters before performance objectives are established for capabilities for which the Chairman of the Joint Requirements Oversight Council is the validation authority; and
"(B) the process for developing requirements is structured to enable incremental, evolutionary, or spiral acquisition approaches, including the deferral of technologies that are not yet mature and capabilities that are likely to significantly increase costs or delay production until later increments or spirals."
Awards for Department of Defense Personnel for Excellence in the Acquisition of Products and Services
"(a)
"(b)
"(1) Procedures for the nomination by the personnel of the military departments and the Defense Agencies of individuals and teams of members of the Armed Forces and civilian personnel of the Department of Defense for eligibility for recognition under the program.
"(2) Procedures for the evaluation of nominations for recognition under the program by one or more panels of individuals from the Government, academia, and the private sector who have such expertise, and are appointed in such manner, as the Secretary shall establish for purposes of the program.
"(c)
Trusted Defense Systems
"(a)
"(1) identify vulnerabilities at multiple levels of the electronics and information processing systems of the selected programs, including microcircuits, software, and firmware;
"(2) prioritize the potential vulnerabilities and effects of the various elements and stages of the system supply chain to identify the most effective balance of investments to minimize the effects of compromise;
"(3) provide recommendations regarding ways of managing supply chain risk for covered acquisition programs; and
"(4) identify the appropriate lead person, and supporting elements, within the Department of Defense for the development of an integrated strategy for managing risk in the supply chain for covered acquisition programs.
"(b)
"(1) An identification of various methods of verifying the trust of semiconductors, including methods under development at the Defense Agencies, government laboratories, institutions of higher education, and in the private sector.
"(2) A determination of the methods identified under paragraph (1) that are most suitable for the Department of Defense.
"(3) An assessment of the additional research and technology development needed to develop methods of verifying the trust of semiconductors that meet the needs of the Department of Defense.
"(4) Any other matters that the Under Secretary considers appropriate.
"(c)
"(1)
"(A) for managing risk-
"(i) in the supply chain of electronics and information processing systems for covered acquisition programs; and
"(ii) in the procurement of semiconductors; and
"(B) that ensures dependable, continuous, long-term access and trust for all mission-critical semiconductors procured from both foreign and domestic sources.
"(2)
"(A) address the vulnerabilities identified by the assessment under subsection (a);
"(B) reflect the priorities identified by such assessment;
"(C) provide guidance for the planning, programming, budgeting, and execution process in order to ensure that covered acquisition programs have the necessary resources to implement all appropriate elements of the strategy;
"(D) promote the use of verification tools, as appropriate, for ensuring trust of commercially acquired systems;
"(E) increase use of trusted foundry services, as appropriate; and
"(F) ensure sufficient oversight in implementation of the plan.
"(d)
"(1) develop policy requiring that trust assurance be a high priority for covered acquisition programs in all phases of the electronic component supply chain and integrated circuit development and production process, including design and design tools, fabrication of the semiconductors, packaging, final assembly, and test;
"(2) develop policy requiring that programs whose electronics and information systems are determined to be vital to operational readiness or mission effectiveness are to employ trusted foundry services to fabricate their custom designed integrated circuits, unless the Secretary specifically authorizes otherwise;
"(3) incorporate the strategies and policies of the Department of Defense regarding development and use of trusted integrated circuits into all relevant Department directives and instructions related to the acquisition of integrated circuits and programs that use such circuits; and
"(4) take actions to promote the use and development of tools that verify the trust in all phases of the integrated circuit development and production process of mission-critical parts acquired from non-trusted sources.
"(e)
"(1) the assessments required by subsections (a) and (b);
"(2) the strategy required by subsection (c); and
"(3) a description of the policies developed and actions taken under subsection (d).
"(f)
"(1) The term 'covered acquisition programs' means an acquisition program of the Department of Defense that is a major system for purposes of section 2302(5) of title 10, United States Code.
"(2) The terms 'trust' and 'trusted' refer, with respect to electronic and information processing systems, to the ability of the Department of Defense to have confidence that the systems function as intended and are free of exploitable vulnerabilities, either intentionally or unintentionally designed or inserted as part of the system at any time during its life cycle.
"(3) The term 'trusted foundry services' means the program of the National Security Agency and the Department of Defense, or any similar program approved by the Secretary of Defense, for the development and manufacture of integrated circuits for critical defense systems in secure industrial environments."
Increase of Domestic Breeding of Military Working Dogs Used by the Department of Defense
"(a)
"(1) identify the number of military working dogs required to fulfill the various missions of the Department of Defense for which such dogs are used, including force protection, facility and check point security, and explosives and drug detection;
"(2) take such steps as are practicable to ensure an adequate number of military working dog teams are available to meet and sustain the mission requirements identified in paragraph (1);
"(3) ensure that the Department's needs and performance standards with respect to military working dogs are readily available to dog breeders and trainers; and
"(4) coordinate with other Federal, State, or local agencies, nonprofit organizations, universities, or private sector entities, as appropriate, to increase the training capacity for military working dog teams.
"(b)
"(c)
Comprehensive Audit of Spare Parts Purchases and Depot Overhaul and Maintenance of Equipment for Operations in Iraq and Afghanistan
"(a)
"(1) Department of Defense contracts, subcontracts, and task and delivery orders for-
"(A) depot overhaul and maintenance of equipment for the military in Iraq and Afghanistan; and
"(B) spare parts for military equipment used in Iraq and Afghanistan; and
"(2) Department of Defense in-house overhaul and maintenance of military equipment used in Iraq and Afghanistan.
"(b)
"(1)
"(2)
"(c)
"(d)
"(e)
Motor Carrier Fuel Surcharges
"(a)
"(b)
"(c)
"(d)
Sales of Commercial Items to Nongovernmental Entities
Investigation of Waste, Fraud, and Abuse in Wartime Contracts and Contracting Processes in Iraq and Afghanistan
"(a)
"(1) Department of Defense contracts, subcontracts, and task and delivery orders for the logistical support of coalition forces in Iraq and Afghanistan; and
"(2) Federal agency contracts, subcontracts, and task and delivery orders for the performance of security and reconstruction functions in Iraq and Afghanistan.
"(b)
"(1) The Department of Defense Inspector General shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(1), consistent with the requirements of subsection (g), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
"(2) The Special Inspector General for Iraq Reconstruction shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(2) relating to Iraq, consistent with the requirements of subsection (h), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
"(3) The Special Inspector General for Afghanistan Reconstruction shall develop a comprehensive plan for a series of audits of contracts, subcontracts, and task and delivery orders covered by subsection (a)(2) relating to Afghanistan, consistent with the requirements of subsection (h), in consultation with other Inspectors General specified in subsection (c) with regard to any contracts, subcontracts, or task or delivery orders over which such Inspectors General have jurisdiction.
"(c)
"(d)
"(e)
"(f)
"(g)
"(1) The manner in which contract requirements were developed.
"(2) The procedures under which contracts or task or delivery orders were awarded.
"(3) The terms and conditions of contracts or task or delivery orders.
"(4) The staffing and method of performance of contractors, including cost controls.
"(5) The efficacy of Department of Defense management and oversight, including the adequacy of staffing and training of officials responsible for such management and oversight.
"(6) The flow of information from contractors to officials responsible for contract management and oversight.
"(h)
"(1) The manner in which contract requirements were developed and contracts or task and delivery orders were awarded.
"(2) The manner in which the Federal agency exercised control over the performance of contractors.
"(3) The extent to which operational field commanders were able to coordinate or direct the performance of contractors in an area of combat operations.
"(4) The degree to which contractor employees were properly screened, selected, trained, and equipped for the functions to be performed.
"(5) The nature and extent of any incidents of misconduct or unlawful activity by contractor employees.
"(6) The nature and extent of any activity by contractor employees that was inconsistent with the objectives of operational field commanders.
"(7) The extent to which any incidents of misconduct or unlawful activity were reported, documented, investigated, and (where appropriate) prosecuted.
"(i)
Contracts in Iraq and Afghanistan and Private Security Contracts in Areas of Other Significant Military Operations
"(1)
"(2)
"(A) Any contract that is awarded on or after the date that is 120 days after the date of the enactment of this Act.
"(B) Any task or delivery order that is issued on or after the date that is 120 days after the date of the enactment of this Act pursuant to a contract that is awarded before, on, or after the date that is 120 days after the date of the enactment of this Act.
"(3)
"(A) Any contract described in paragraph (2)(A).
"(B) Any task or delivery order described in paragraph (2)(B)."
"(1)
"(A) The Horn of Africa region.
"(B) Yemen.
"(C) The Philippines.
"(2)
"(1)
"(2)
"SEC. 861. MEMORANDUM OF UNDERSTANDING ON MATTERS RELATING TO CONTRACTING.
"(a)
"(b)
"(1) Identification of the major categories of contracts in Iraq or Afghanistan being awarded by the Department of Defense, the Department of State, or the United States Agency for International Development.
"(2) Identification of the roles and responsibilities of each department or agency for matters relating to contracting for contracts in Iraq or Afghanistan.
"(3) Responsibility for establishing procedures for, and the coordination of, movement of contractor personnel in Iraq or Afghanistan.
"(4) Identification of common databases that will serve as repositories of information on contracts in Iraq or Afghanistan and contractor personnel in Iraq or Afghanistan, including agreement on the elements to be included in the databases, including, at a minimum-
"(A) with respect to each contract-
"(i) a brief description of the contract (to the extent consistent with security considerations);
"(ii) the total value of the contract; and
"(iii) whether the contract was awarded competitively; and
"(B) with respect to contractor personnel-
"(i) the total number of personnel employed on contracts in Iraq or Afghanistan;
"(ii) the total number of personnel performing security functions under contracts in Iraq or Afghanistan; and
"(iii) the total number of personnel working under contracts in Iraq or Afghanistan who have been killed or wounded.
"(5) Responsibility for maintaining and updating information in the common databases identified under paragraph (4).
"(6) Responsibility for the collection and referral to the appropriate Government agency of any information relating to offenses under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice) or chapter 212 of title 18, United States Code (commonly referred to as the Military Extraterritorial Jurisdiction Act), including a clarification of responsibilities under section 802(a)(10) of title 10, United States Code (article 2(a) of the Uniform Code of Military Justice), as amended by section 552 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (
"(7) Mechanisms for ensuring that contractors are required to report offenses described in paragraph (6) that are alleged to have been committed by or against contractor personnel to appropriate investigative authorities.
"(8) Responsibility for providing victim and witness protection and assistance to contractor personnel in connection with alleged offenses described in paragraph (6).
"(9) Development of a requirement that a contractor shall provide to all contractor personnel who will perform work on a contract in Iraq or Afghanistan, before beginning such work, information on the following:
"(A) How and where to report an alleged offense described in paragraph (6).
"(B) Where to seek the assistance required by paragraph (8).
"(c)
"(d)
"(1)
"(2)
"(3)
"(4)
"SEC. 862. CONTRACTORS PERFORMING PRIVATE SECURITY FUNCTIONS IN AREAS OF COMBAT OPERATIONS OR OTHER SIGNIFICANT MILITARY OPERATIONS.
"(a)
"(1)
"(2)
"(A) a process for registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations or other significant military operations;
"(B) a process for authorizing and accounting for weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations or other significant military operations;
"(C) a process for the registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors performing private security functions in an area of combat operations or other significant military operations;
"(D) a process under which contractors are required to report all incidents, and persons other than contractors are permitted to report incidents, in which-
"(i) a weapon is discharged by personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) personnel performing private security functions in an area of combat operations or other significant military operations are killed or injured;
"(iii) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;
"(iv) a weapon is discharged against personnel performing private security functions in an area of combat operations or other significant military operations or personnel performing such functions believe a weapon was so discharged; or
"(v) active, non-lethal countermeasures (other than the discharge of a weapon) are employed by the personnel performing private security functions in an area of combat operations or other significant military operations in response to a perceived immediate threat to such personnel;
"(E) a process for the independent review and, if practicable, investigation of-
"(i) incidents reported pursuant to subparagraph (D); and
"(ii) incidents of alleged misconduct by personnel performing private security functions in an area of combat operations or other significant military operations;
"(F) requirements for qualification, training, screening (including, if practicable, through background checks), and security for personnel performing private security functions in an area of combat operations or other significant military operations;
"(G) guidance to the commanders of the combatant commands on the issuance of-
"(i) orders, directives, and instructions to contractors performing private security functions relating to equipment, force protection, security, health, safety, or relations and interaction with locals;
"(ii) predeployment training requirements for personnel performing private security functions in an area of combat operations or other significant military operations, addressing the requirements of this section, resources and assistance available to contractor personnel, country information and cultural training, and guidance on working with host country nationals and military; and
"(iii) rules on the use of force for personnel performing private security functions in an area of combat operations or other significant military operations;
"(H) a process by which a commander of a combatant command may request an action described in subsection (b)(3); and
"(I) a process by which the training requirements referred to in subparagraph (G)(ii) shall be implemented.
"(3)
"(b)
"(1)
"(2)
"(A) ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with regulations prescribed under subsection (a), including any revisions or updates to such regulations, and follow the procedures established in such regulations for-
"(i) registering, processing, accounting for, and keeping appropriate records of personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) authorizing and accounting of weapons to be carried by, or available to be used by, personnel performing private security functions in an area of combat operations or other significant military operations;
"(iii) registration and identification of armored vehicles, helicopters, and other military vehicles operated by contractors and subcontractors performing private security functions in an area of combat operations or other significant military operations; and
"(iv) the reporting of incidents in which-
"(I) a weapon is discharged by personnel performing private security functions in an area of combat operations or other significant military operations;
"(II) personnel performing private security functions in an area of combat operations or other significant military operations are killed or injured; or
"(III) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel;
"(B) ensure that the contractor and all employees of the contractor or any subcontractor who are responsible for performing private security functions under such contract comply with-
"(i) qualification, training, screening (including, if practicable, through background checks), and security requirements established by the Secretary of Defense for personnel performing private security functions in an area of combat operations or other significant military operations;
"(ii) applicable laws and regulations of the United States and the host country, and applicable treaties and international agreements, regarding the performance of the functions of the contractor;
"(iii) orders, directives, and instructions issued by the applicable commander of a combatant command relating to equipment, force protection, security, health, safety, or relations and interaction with locals; and
"(iv) rules on the use of force issued by the applicable commander of a combatant command for personnel performing private security functions in an area of combat operations or other significant military operations;
"(C) cooperate with any investigation conducted by the Department of Defense pursuant to subsection (a)(2)(E) by providing access to employees of the contractor and relevant information in the possession of the contractor regarding the incident concerned; and
"(D) ensure that the contract clause is included in subcontracts awarded to any subcontractor at any tier who is responsible for performing private security functions under the contract.
"(3)
"(4)
"(5)
"(A) an assessment of the feasibility and advisability of carrying out the pilot program; and
"(B) if the Inspector General determines that carrying out the pilot program is feasible and advisable-
"(i) recommendations on the range of contracts and subcontracts to which the pilot program should apply; and
"(ii) a schedule of fines to be imposed under the pilot program for various types of personnel actions or failures.
"(c)
"(1) ensure that the contractor responsible for performing private security functions under such contract comply with the regulatory requirements prescribed pursuant to subsection (a) and the contract requirements established pursuant to subsection (b); and
"(2) make the determinations required by subsection (d).
"(d)
"(1) shall be included in appropriate databases of past performance and considered in any responsibility determination or evaluation of the past performance of the contractor for the purpose of a contract award decision, as provided in section 1126 of title 41, United States Code;
"(2) in the case of an award fee contract-
"(A) shall be considered in any evaluation of contract performance by the contractor for the relevant award fee period; and
"(B) may be a basis for reducing or denying award fees for such period, or for recovering all or part of award fees previously paid for such period; and
"(3) in the case of a failure to comply that is severe, prolonged, or repeated-
"(A) shall be referred to the suspension or debarment official for the appropriate agency; and
"(B) may be a basis for suspension or debarment of the contractor.
"(e)
"(f)
"(1)
"(2)
"(3)
"(4)
"(5)
"(g)
"(h)
"(1)
"(2)
"SEC. 863. ANNUAL JOINT REPORT ON CONTRACTING IN IRAQ AND AFGHANISTAN.
"(a)
"(b)
"(1) Total number of contracts awarded.
"(2) Total number of active contracts.
"(3) Total value of all contracts awarded.
"(4) Total value of active contracts.
"(5) The extent to which such contracts have used competitive procedures.
"(6) Percentage of contracts awarded on a competitive basis as compared to established goals for competition in contingency contracting actions.
"(7) Total number of contractor personnel working on contracts at the end of each quarter of the reporting period.
"(8) Total number of contractor personnel who are performing security functions at the end of each quarter of the reporting period.
"(9) Total number of contractor personnel killed or wounded.
"(c)
"(1) The sources of information and data used to compile the information required under subsection (b).
"(2) A description of any known limitations of the data reported under subsection (b), including known limitations of the methodology and data sources used to compile the report.
"(3) Any plans for strengthening collection, coordination, and sharing of information on contracts in Iraq and Afghanistan through improvements to the common databases identified under section 861(b)(4).
"(d)
"(e)
"(f)
"(g)
"SEC. 864. DEFINITIONS AND OTHER GENERAL PROVISIONS.
"(a)
"(1)
"(2)
"(3)
"(A) a contract of a Federal agency for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862;
"(B) a subcontract at any tier under such a contract;
"(C) a task order or delivery order issued under such a contract or subcontract;
"(D) a grant for the performance of services in an area of combat operations, as designated by the Secretary of Defense under subsection (c) of section 862; or
"(E) a cooperative agreement for the performance of services in such an area of combat operations.
"(4)
"(A) in the case of a covered contract that is a contract, subcontract, task order, or delivery order, the contractor or subcontractor carrying out the covered contract;
"(B) in the case of a covered contract that is a grant, the grantee; and
"(C) in the case of a covered contract that is a cooperative agreement, the recipient.
"(5)
"(6)
"(A) Guarding of personnel, facilities, or property of a Federal agency, the contractor or subcontractor, or a third party.
"(B) Any other activity for which personnel are required to carry weapons in the performance of their duties.
"(7)
"(A) The Committees on Armed Services of the Senate and the House of Representatives.
"(B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives.
"(C) The Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.
"(D) For purposes of contracts relating to the National Foreign Intelligence Program, the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
"(b)
Enhanced Authority To Acquire Products and Services Produced in Afghanistan
"(a)
"(1) competition is limited to products or services that are from Afghanistan;
"(2) procedures other than competitive procedures are used to award a contract to a particular source or sources from Afghanistan; or
"(3) a preference is provided for products or services that are from Afghanistan.
"(b)
"(1) the product or service concerned is to be used only by the military forces, police, or other security personnel of Afghanistan; or
"(2) it is in the national security interest of the United States to limit competition, use procedures other than competitive procedures, or provide a preference as described in subsection (a) because-
"(A) such limitation, procedure, or preference is necessary to provide a stable source of jobs in Afghanistan; and
"(B) such limitation, procedure, or preference will not adversely affect-
"(i) military operations or stability operations in Afghanistan; or
"(ii) the United States industrial base.
"(c)
"(1) A product is from Afghanistan if it is mined, produced, or manufactured in Afghanistan.
"(2) A service is from Afghanistan if it is performed in Afghanistan by citizens or permanent resident aliens of Afghanistan.
"(3) A source is from Afghanistan if it-
"(A) is located in Afghanistan; and
"(B) offers products or services that are from Afghanistan.
"(d)
[
Prevention of Export Control Violations
"(a)
"(b)
"(c)
"(1) requiring defense contractors (or subcontractors at any tier) to periodically report on measures taken to ensure compliance with the International Traffic in Arms Regulations and the Export Administration Regulations;
"(2) requiring periodic audits of defense contractors (or subcontractors at any tier) to ensure compliance with all provisions of the International Traffic in Arms Regulations and the Export Administration Regulations;
"(3) requiring defense contractors to maintain a corporate training plan to disseminate information to appropriate contractor personnel regarding the applicability of the Arms Export Control Act and the Export Administration Act of 1979; and
"(4) requiring a designated corporate liaison, available for training provided by the United States Government, whose primary responsibility would be contractor compliance with the Arms Export Control Act and the Export Administration Act of 1979.
"(d)
"(1)
"(2)
Quality Control in Procurement of Ship Critical Safety Items and Related Services
"(a)
"(1) Ship critical safety items.
"(2) Modifications, repair, and overhaul of ship critical safety items.
"(b)
"(1) That the head of the design control activity for ship critical safety items establish processes to identify and manage the procurement, modification, repair, and overhaul of such items.
"(2) That the head of the contracting activity for a ship critical safety item enter into a contract for the procurement, modification, repair, or overhaul of such item only with a source on a qualified manufacturers list or a source approved by the design control activity in accordance with section 2319 of title 10, United States Code (as amended by subsection (d)).
"(3) That the ship critical safety items delivered, and the services performed with respect to such items, meet all technical and quality requirements specified by the design control activity.
"(c)
Pilot Program on Time-Certain Development in Acquisition of Major Weapon Systems
"(a)
"(b)
"(1) disciplined decision-making;
"(2) emphasis on technological maturity; and
"(3) appropriate trade-offs between-
"(A) cost and system performance; and
"(B) program schedule.
"(c)
"(1)
"(A) the major weapon system meets the criteria under paragraph (2) in accordance with that paragraph; and
"(B) the Milestone Decision Authority nominates such program to the Secretary of Defense for inclusion in the program.
"(2)
"(A) the certification requirements of section 2366b of title 10, United States Code (as amended by section 805 of this Act), have been met, and no waivers have been granted from such requirements;
"(B) a preliminary design has been reviewed using systems engineering, and the system, as so designed, will meet battlefield needs identified by the relevant combatant commanders after appropriate requirements analysis;
"(C) a representative model or prototype of the system, or key subsystems, has been demonstrated in a relevant environment, such as a well-simulated operational environment;
"(D) an independent cost estimate has been conducted and used as the basis for funding requirements for the acquisition program for the system;
"(E) the budget of the military department responsible for carrying out the acquisition program for the system provides the funding necessary to execute the product development and production plan consistent with the requirements identified pursuant to subparagraph (D);
"(F) an appropriately qualified program manager has entered into a performance agreement with the Milestone Decision Authority that establishes expected parameters for the cost, schedule, and performance of the acquisition program for the system, consistent with a business case for such acquisition program;
"(G) the service acquisition executive and the program manager have developed a strategy to ensure stability in program management until, at a minimum, the delivery of the initial operational capability under the acquisition program for the system has occurred;
"(H) the service acquisition executive, the relevant combatant commanders, and the program manager have agreed that no additional requirements that would be inconsistent with the agreed-upon program schedule will be added during the development phase of the acquisition program for the system; and
"(I) a planned initial operational capability will be delivered to the relevant combatant commanders within a defined period of time as prescribed in regulations by the Secretary of Defense.
"(3)
"(d)
"(e)
"(f)
"(1)
"(2)
"(A) funds made available for any major weapon system included in the pilot program to cover termination liability;
"(B) funds made available for any major weapon system included in the pilot program for award fees that may be earned by contractors; and
"(C) funds appropriated to the special reserve account.
"(3)
"(A) To cover termination liability for any major weapon system included in the pilot program.
"(B) To pay award fees that are earned by any contractor for a major weapon system included in the pilot program.
"(C) To address unforeseen contingencies that could prevent a major weapon system included in the pilot program from meeting critical schedule or performance requirements.
"(4)
"(5)
"(g)
"(1) provide for the use of program status reports based on earned value data to track progress on a major weapon system under the pilot program against baseline estimates applicable to such system at each systems engineering technical review point; and
"(2) grant authority, to the maximum extent practicable, to the program manager for the acquisition program for a major weapon system to make key program decisions and trade-offs, subject to management reviews only if cost or schedule deviations exceed the baselines for such acquisition program by 10 percent or more.
"(h)
"(1) the weapon system receives Milestone C approval; or
"(2) the Secretary determines that the weapon system is no longer in substantial compliance with the criteria in subsection (c)(2) or is otherwise no longer appropriate for inclusion in the pilot program.
"(i)
"(1)
"(2)
"(j)
"(1)
"(2)
"(A) a description of progress under the pilot program, and on each major weapon system included in the pilot program, during the period covered by such report;
"(B) a description of the use of all funds in the special reserve account established under subsection (f); and
"(C) such other matters as the Secretary considers appropriate.
"(k)
[
Linking of Award and Incentive Fees to Acquisition Outcomes
"(a)
"(1) provide for the consideration of any incident described in subsection (b) in evaluations of contractor performance for the relevant award fee period; and
"(2) authorize the Secretary to reduce or deny award fees for the relevant award fee period, or to recover all or part of award fees previously paid for such period, on the basis of the negative impact of such incident on contractor performance.
"(b)
"(1) has been determined, through a criminal, civil, or administrative proceeding that results in a disposition listed in subsection (c), in the performance of a covered contract to have caused serious bodily injury or death to any civilian or military personnel of the Government through gross negligence or with reckless disregard for the safety of such personnel; or
"(2) has been determined, through a criminal, civil, or administrative proceeding that results in a disposition listed in subsection (c), to be liable for actions of a subcontractor of the contractor that caused serious bodily injury or death to any civilian or military personnel of the Government, through gross negligence or with reckless disregard for the safety of such personnel.
"(c)
"(1) In a criminal proceeding, a conviction.
"(2) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.
"(3) In an administrative proceeding, a finding of fault and liability that results in-
"(A) the payment of a monetary fine or penalty of $5,000 or more; or
"(B) the payment of a reimbursement, restitution, or damages in excess of $100,000.
"(4) To the maximum extent practicable and consistent with applicable laws and regulations, in a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the person if the proceeding could have led to any of the outcomes specified in paragraph (1), (2), or (3).
"(5) In an administrative proceeding, a final determination of contractor fault by the Secretary of Defense pursuant to subsection (d).
"(d)
"(1)
"(A) provide for an expeditious independent investigation of the causes of the serious bodily injury or death alleged to have been caused by the contractor as described in that paragraph; and
"(B) make a final determination, pursuant to procedures established by the Secretary for purposes of this subsection, whether the contractor, in the performance of a covered contract, caused such serious bodily injury or death through gross negligence or with reckless disregard for the safety of civilian or military personnel of the Government.
"(2)
"(A) a contractor, in the performance of a covered contract, may have caused the serious bodily injury or death of any civilian or military personnel of the Government; and
"(B) such contractor is not subject to the jurisdiction of United States courts.
"(3)
"(e)
"(1) The term 'contractor' means a company awarded a covered contract and a subcontractor at any tier under such contract.
"(2) The term 'covered contract' means a contract awarded by the Department of Defense for the procurement of goods or services.
"(3) The term 'serious bodily injury' means a grievous physical harm that results in a permanent disability.
"(f)
[
["(1) Any contract entered into on or after the date of the enactment of this Act [Jan. 7, 2011].
["(2) Any task order or delivery order issued on or after the date of the enactment of this Act under a contract entered into before, on, or after that date."]
"(a)
"(b)
"(1) ensure that all new contracts using award fees link such fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance);
"(2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts;
"(3) provide guidance on the circumstances in which contractor performance may be judged to be 'excellent' or 'superior' and the percentage of the available award fee which contractors should be paid for such performance;
"(4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be 'acceptable', 'average', 'expected', 'good', or 'satisfactory';
"(5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract;
"(6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods;
"(7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the military departments and Defense Agencies;
"(8) ensure that the Department of Defense-
"(A) collects relevant data on award and incentive fees paid to contractors; and
"(B) has mechanisms in place to evaluate such data on a regular basis;
"(9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and
"(10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials.
"(c)
"(1)
"(2)
"(A) held in a separate fund or funds of the Department of Defense; and
"(B) allocated to a specific program only upon a determination by an independent board, charged with comparing contractor performance across programs, that such fees have been earned by the contractor for such program.
"(3)
Limitation on Contracts for the Acquisition of Certain Services
"(a)
"(b)
"(1) determines that a waiver is in the national interest; and
"(2) provides to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] an economic analysis as described in subsection (c) at least 30 days before the waiver takes effect.
"(c)
"(1) A clear explanation of the need for the contract.
"(2) An examination of at least two alternatives for fulfilling the requirements that the contract is meant to fulfill, including the following with respect to each alternative:
"(A) A rationale for including the alternative.
"(B) A cost estimate of the alternative and an analysis of the quality of each cost estimate.
"(C) A discussion of the benefits to be realized from the alternative.
"(D) A best value determination of each alternative and a detailed explanation of the life-cycle cost calculations used in the determination.
"(d)
"(1) The term 'military flight simulator' means any major system to simulate the form, fit, and function of a military aircraft that has no commonly available commercial variant.
"(2) The term 'service contract' means any contract entered into by the Department of Defense the principal purpose of which is to furnish services in the United States through the use of service employees.
"(3) The term 'service employees' has the meaning provided in section 6701(3) of title 41, United States Code.
"(e)
"(1) the contract was in effect as of October 17, 2006;
"(2) the number of flight simulators to be acquired under the contract (or renewal, extension, or follow-on) will not result in the total number of flight simulators acquired by the military department concerned through service contracts to exceed the total number of flight simulators to be acquired under all service contracts of such department for such simulators in effect as of October 17, 2006; and
"(3) in the case of a renewal or extension of, or follow-on contract to, the contract, the Secretary of the military department concerned provides to the congressional defense committees a written notice of the decision to exercise an option to renew or extend the contract, or to issue a solicitation for bids or proposals using competitive procedures for a follow-on contract, and an economic analysis as described in subsection (c) supporting the decision, at least 30 days before carrying out such decision."
Congressional Notification of Cancellation of Major Automated Information Systems
"(a)
"(b)
"(1) the specific justification for the proposed cancellation or change;
"(2) a description of the impact of the proposed cancellation or change on the ability of the Department to achieve the objectives of the program proposed for cancellation or change;
"(3) a description of the steps that the Department plans to take to achieve those objectives; and
"(4) other information relevant to the change in acquisition strategy.
"(c)
"(1) The term 'major automated information system' has the meaning given that term in Department of Defense directive 5000.1.
"(2) The term 'approved to be fielded' means having received Milestone C approval."
Joint Policy on Contingency Contracting
"(a)
"(1)
"(2)
"(A) the designation of a senior commissioned officer in each military department with the responsibility for administering the policy;
"(B) the assignment of a senior commissioned officer with appropriate acquisition experience and qualifications to act as head of contingency contracting during combat operations, post-conflict operations, and contingency operations, who shall report directly to the commander of the combatant command in whose area of responsibility the operations occur;
"(C) an organizational approach to contingency contracting that is designed to ensure that each military department is prepared to conduct contingency contracting during combat operations and post-conflict operations;
"(D) a requirement to provide training (including training under a program to be created by the Defense Acquisition University) to contingency contracting personnel in-
"(i) the use of law, regulations, policies, and directives related to contingency contracting operations;
"(ii) the appropriate use of rapid acquisition methods, including the use of exceptions to competition requirements under section 2304 of title 10, United States Code, sealed bidding, letter contracts, indefinite delivery indefinite quantity task orders, set asides under section 8(a) of the Small Business Act (15 U.S.C. 637(a)), undefinitized contract actions, and other tools available to expedite the delivery of goods and services during combat operations or post-conflict operations;
"(iii) the appropriate use of rapid acquisition authority, commanders' emergency response program funds, and other tools unique to contingency contracting; and
"(iv) instruction on the necessity for the prompt transition from the use of rapid acquisition authority to the use of full and open competition and other methods of contracting that maximize transparency in the acquisition process;
"(E) appropriate steps to ensure that training is maintained for such personnel even when they are not deployed in a contingency operation; and
"(F) such steps as may be needed to ensure jointness and cross-service coordination in the area of contingency contracting.
"(b)
"(1)
"(A)
"(B)
"(i) Progress in the development of the joint policy under subsection (a).
"(ii) The ability of the Armed Forces to support contingency contracting.
"(iii) The ability of commanders of combatant commands to request contingency contracting support and the ability of the military departments and the acquisition support agencies to respond to such requests and provide such support, including the availability of rapid acquisition personnel for such support.
"(iv) The ability of the current civilian and military acquisition workforce to deploy to combat theaters of operations and to conduct contracting activities during combat and during post-conflict, reconstruction, or other contingency operations.
"(v) The effect of different periods of deployment on continuity in the acquisition process.
"(2)
"(c)
"(1)
"(2)
"(3)
"(4)
Prohibition on Procurements From Communist Chinese Military Companies
"(a)
"(b)
"(1) in connection with a visit by a vessel or an aircraft of the United States Armed Forces to the People's Republic of China;
"(2) for testing purposes; or
"(3) for purposes of gathering intelligence.
"(c)
"(d)
"(e)
"(1) The term 'Communist Chinese military company' has the meaning provided that term by section 1237(b)(4) of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 [
"(2) The term 'munitions list of the International Trafficking in Arms Regulations' means the United States Munitions List contained in part 121 of subchapter M of title 22 of the Code of Federal Regulations."
[
Development of Deployable Systems To Include Consideration of Force Protection in Asymmetric Threat Environments
"(a)
"(1) an assessment of warfighter survivability and of system suitability against asymmetric threats shall be performed as part of the development of system requirements for any such system; and
"(2) requirements for key performance parameters for force protection and survivability shall be included as part of the documentation of system requirements for any such system.
"(b)
"(1) Any manned system.
"(2) Any equipment intended to enhance personnel survivability.
"(c)
"(d)
Internal Controls for Department of Defense Procurements Through GSA Client Support Centers
"(a)
"(A) review-
"(i) the policies, procedures, and internal controls of each GSA Client Support Center; and
"(ii) the administration of those policies, procedures, and internal controls; and
"(B) for each such Center, determine in writing whether-
"(i) the Center is compliant with defense procurement requirements;
"(ii) the Center is not compliant with defense procurement requirements, but the Center made significant progress during 2004 toward becoming compliant with defense procurement requirements; or
"(iii) neither of the conclusions stated in clauses (i) and (ii) is correct.
"(2) If the Inspectors General determine under paragraph (1) that the conclusion stated in clause (ii) or (iii) of subparagraph (B) of such paragraph is correct in the case of a GSA Client Support Center, those Inspectors General shall, not later than March 15, 2006, jointly-
"(A) conduct a second review regarding that GSA Client Support Center as described in paragraph (1)(A); and
"(B) determine in writing whether that GSA Client Support Center is or is not compliant with defense procurement requirements.
"(b)
"(c)
"(2) After March 15, 2006, no official of the Department of Defense may, except as provided in subsection (d) or (e), order, purchase, or otherwise procure property or services in an amount in excess of $100,000 through any GSA Client Support Center that has not been determined under this section as being compliant with defense procurement requirements.
"(d)
"(2) A written determination with respect to a GSA Client Support Center under paragraph (1) is in effect for the period, not in excess of one year, that the Under Secretary of Defense for Acquisition, Technology, and Logistics shall specify in the written determination. The Under Secretary may extend from time to time, for up to one year at a time, the period for which the written determination remains in effect.
"(e)
"(f)
Data Review
"(1) The Secretary of Defense shall revise the data collection systems of the Department of Defense to ensure that such systems are capable of identifying each procurement that involves a consolidation of contract requirements within the department with a total value in excess of $5,000,000.
"(2) The Secretary shall ensure that appropriate officials of the Department of Defense periodically review the information collected pursuant to paragraph (1) in cooperation with the Small Business Administration-
"(A) to determine the extent of the consolidation of contract requirements in the Department of Defense; and
"(B) to assess the impact of the consolidation of contract requirements on the availability of opportunities for small business concerns to participate in Department of Defense procurements, both as prime contractors and as subcontractors.
"(3) In this subsection:
"(A) The term 'consolidation of contract requirements' has the meaning given that term in [former] section 2382(c)(1) of title 10, United States Code, as added by subsection (a).
"(B) The term 'small business concern' means a business concern that is determined by the Administrator of the Small Business Administration to be a small-business concern by application of the standards prescribed under section 3(a) of the Small Business Act (15 U.S.C. 632(a))."
Quality Control in Procurement of Aviation Critical Safety Items and Related Services
"(a)
"(b)
"(1) That the head of the design control activity for aviation critical safety items establish processes to identify and manage the procurement, modification, repair, and overhaul of aviation critical safety items.
"(2) That the head of the contracting activity for an aviation critical safety item enter into a contract for the procurement, modification, repair, or overhaul of such item only with a source approved by the design control activity in accordance with section 2319 of title 10, United States Code.
"(3) That the aviation critical safety items delivered, and the services performed with respect to aviation critical safety items, meet all technical and quality requirements specified by the design control activity.
"(c)
Competitive Award of Contracts for Reconstruction Activities in Iraq
Demonstration Project for Contractors Employing Persons With Disabilities
"(a)
"(b)
"(c)
"(d)
"(1)
"(A) employs severely disabled individuals at a rate that averages not less than 33 percent of its total workforce over a period prescribed by the Secretary;
"(B) pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206) to the employees who are severely disabled individuals; and
"(C) provides for its employees health insurance and a retirement plan comparable to those provided for employees by business entities of similar size in its industrial sector or geographic region.
"(2)
Procurement of Defense Biomedical Countermeasures
"(a)
"(A) assess current and emerging threats of use of biological, chemical, radiological, and nuclear agents; and
"(B) identify, on the basis of such assessment, those agents that present a material risk of use against the Armed Forces.
"(2) The Secretary shall on an ongoing basis-
"(A) assess the potential consequences to the health of members of the Armed Forces of use against the Armed Forces of the agents identified under paragraph (1)(B); and
"(B) identify, on the basis of such assessment, those agents for which countermeasures are necessary to protect the health of members of the Armed Forces.
"(b)
"(c)
"(2) The Secretary may not identify a specific countermeasure under paragraph (1) unless the Secretary determines that-
"(A) the countermeasure is a qualified countermeasure; and
"(B) it is reasonable to expect that producing and delivering, within 5 years, the quantity of that countermeasure required to meet the needs of the Department (as determined by the Secretary) is feasible.
"(d)
"(2) The Secretary may enter into an interagency agreement with the Secretaries of Homeland Security and Health and Human Services to provide for acquisition by the Secretary of Defense for use by the Armed Forces of biomedical countermeasures procured for the Strategic National Stockpile by the Secretary of Health and Human Services. The Secretary may transfer such funds to the Secretary of Health and Human Services as are necessary to carry out such agreements (including administrative costs of the Secretary of Health and Human Services), and the Secretary of Health and Human Services may expend any such transferred funds to procure such countermeasures for use by the Armed Forces, or to replenish the stockpile. The Secretaries are authorized to establish such terms and conditions for such agreements as the Secretaries determine to be in the public interest. The transfer authority provided under this paragraph is in addition to any other transfer authority available to the Secretary.
"(e)
"(1) The term 'qualified countermeasure' means a biomedical countermeasure-
"(A) that is approved under section 505(a) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) or licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or that is approved under section 515 or cleared under section 510(k) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360e and 360) for use as such a countermeasure to a biological, chemical, radiological, or nuclear agent identified as a material threat under subsection (a); or
"(B) with respect to which the Secretary of Health and Human Services makes a determination that sufficient and satisfactory clinical experience or research data (including data, if available, from preclinical and clinical trials) exists to support a reasonable conclusion that the product will qualify for such approval or licensing for use as such a countermeasure.
"(2) The term 'biomedical countermeasure' means a drug (as defined in section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)(1))), device (as defined in section 201(h) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(h))), or biological product (as defined in section 351(i) of the Public Health Service Act (42 U.S.C. 262(i))) that is-
"(A) used to treat, identify, or prevent harm from any biological, chemical, radiological, or nuclear agent that may cause a military health emergency affecting the Armed Forces; or
"(B) used to treat, identify, or prevent harm from a condition that may result in adverse health consequences or death and may be caused by administering a drug or biological product that is used as described in subparagraph (A).
"(3) The term 'Strategic National Stockpile' means the stockpile established under section 121(a) of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (42 U.S.C. 300hh–12(a)).
"(f)
Encouragement of Small Businesses and Nontraditional Defense Contractors To Submit Proposals Potentially Beneficial for Combating Terrorism
Procurement of Environmentally Preferable Procurement Items
"(a)
"(b)
"(c)
"(d)
"(e)
"(1) The term 'environmentally preferable', in the case of a procurement item, means that the item has a lesser or reduced effect on human health and the environment when compared with competing products that serve the same purpose. The comparison may consider raw materials acquisition, production, manufacturing, packaging, distribution, reuse, operation, maintenance, or disposal of the product.
"(2) The terms 'procurement item' and 'recovered material' have the meanings given such terms in section 1004 of the Solid Waste Disposal Act (42 U.S.C. 6903)."
Policy Regarding Acquisition of Information Assurance and Information Assurance-Enabled Information Technology Products
"(a)
"(b)
"(c)
Logistics Support and Services for Weapon Systems Contractors
Improvement of Software Acquisition Processes
"(a)
"(2) The head of each Defense Agency that manages a major defense acquisition program with a substantial software component shall establish a program to improve the software acquisition processes of that Defense Agency.
"(3) The programs required by this subsection shall be established not later than 120 days after the date of the enactment of this Act [Dec. 2, 2002].
"(b)
"(1) A documented process for software acquisition planning, requirements development and management, project management and oversight, and risk management.
"(2) Efforts to develop appropriate metrics for performance measurement and continual process improvement.
"(3) A process to ensure that key program personnel have an appropriate level of experience or training in software acquisition.
"(4) A process to ensure that each military department and Defense Agency implements and adheres to established processes and requirements relating to the acquisition of software.
"(c)
"(1) prescribe uniformly applicable guidance for the administration of all of the programs established under subsection (a) and take such actions as are necessary to ensure that the military departments and Defense Agencies comply with the guidance; and
"(2) assist the Secretaries of the military departments and the heads of the Defense Agencies to carry out such programs effectively by-
"(A) ensuring that the criteria applicable to the selection of sources provides added emphasis on past performance of potential sources, as well as on the maturity of the software products offered by the potential sources; and
"(B) identifying, and serving as a clearinghouse for information regarding, best practices in software development and acquisition in both the public and private sectors.
"(d)
"(1) The term 'Defense Agency' has the meaning given the term in section 101(a)(11) of title 10, United States Code.
"(2) The term 'major defense acquisition program' has the meaning given such term in section 139(a)(2)(B) of title 10, United States Code."
Rapid Acquisition and Deployment Procedures
"(a)
"(1)(A) currently under development by the Department of Defense or available from the commercial sector; or
"(B) require only minor modifications to supplies described in subparagraph (A); and
"(2) urgently needed to react to an enemy threat or to respond to significant and urgent safety situations.
"(b)
"(1) A process for streamlined communications between the Chairman of the Joint Chiefs of Staff, the acquisition community, and the research and development community, including-
"(A) a process for the commanders of the combatant commands and the Joint Chiefs of Staff to communicate their needs to the acquisition community and the research and development community; and
"(B) a process for the acquisition community and the research and development community to propose supplies and associated support services that meet the needs communicated by the combatant commands and the Joint Chiefs of Staff.
"(2) Procedures for demonstrating, rapidly acquiring, and deploying supplies and associated support services proposed pursuant to paragraph (1)(B), including-
"(A) a process for demonstrating performance and evaluating for current operational purposes the existing capability of the supplies and associated support services;
"(B) a process for developing an acquisition and funding strategy for the deployment of the supplies and associated support services; and
"(C) a process for making deployment and utilization determinations based on information obtained pursuant to subparagraphs (A) and (B).
"(c)
"(1)
"(B) In the case of any supplies and associated support services that, as determined in writing by the Secretary of Defense, are urgently needed to eliminate a documented deficiency that impacts an ongoing or anticipated contingency operation and that, if left unfulfilled, could potentially result in loss of life or critical mission failure, the Secretary may use the procedures developed under this section in order to accomplish the rapid acquisition and deployment of the needed supplies and associated support services.
"(C)(i) In the case of any supplies and associated support services that, as determined in writing by the Secretary of Defense without delegation, are urgently needed to eliminate a deficiency that as the result of a cyber attack has resulted in critical mission failure, the loss of life, property destruction, or economic effects, or if left unfilled is likely to result in critical mission failure, the loss of life, property destruction, or economic effects, the Secretary may use the procedures developed under this section in order to accomplish the rapid acquisition and deployment of the needed offensive or defensive cyber capabilities, supplies, and associated support services.
"(ii) In this subparagraph, the term 'cyber attack' means a deliberate action to alter, disrupt, deceive, degrade, or destroy computer systems or networks or the information or programs resident in or transiting these systems or networks.
"(2)
"(B) Upon designation of a senior official under subparagraph (A), the Secretary shall authorize that official to waive any provision of law, policy, directive, or regulation described in subsection (d) that such official determines in writing would unnecessarily impede the rapid acquisition and deployment of the needed supplies and associated support services. In a case in which the needed supplies and associated support services cannot be acquired without an extensive delay, the senior official shall require that an interim solution be implemented and deployed using the procedures developed under this section to minimize adverse consequences resulting from the urgent need.
"(3)
"(B) The authority of this section may only be used to acquire supplies and associated support services-
"(i) in the case of determinations by the Secretary under paragraph (1)(A), in an amount aggregating not more than $200,000,000 during any fiscal year;
"(ii) in the case of determinations by the Secretary under paragraph (1)(B), in an amount aggregating not more than $200,000,000 during any fiscal year; and
"(iii) in the case of determinations by the Secretary under paragraph (1)(C), in an amount aggregating not more than $200,000,000 during any fiscal year.
"(4)
"(B) In the case of a determination by the Secretary under paragraph (1)(B) the Secretary shall notify the congressional defense committees of the determination at least 10 days before the date on which the determination is effective.
"(C) A notice under this paragraph shall include the following:
"(i) The supplies and associated support services to be acquired.
"(ii) The amount anticipated to be expended for the acquisition.
"(iii) The source of funds for the acquisition.
"(D) A notice under this paragraph shall be sufficient to fulfill any requirement to provide notification to Congress for a new start program.
"(E) A notice under this paragraph shall be provided in consultation with the Director of the Office of Management and Budget.
"(5)
"(6)
"(d)
"(A) the establishment of the requirement for the supplies and associated support services;
"(B) the research, development, test, and evaluation of the supplies and associated support services; or
"(C) the solicitation and selection of sources, and the award of the contract, for procurement of the supplies and associated support services.
"(2) Nothing in this subsection authorizes the waiver of-
"(A) the requirements of this section or the regulations implementing this section; or
"(B) any provision of law imposing civil or criminal penalties.
"(e)
"(A) an operational assessment in accordance with procedures prescribed by the Director of Operational Test and Evaluation; and
"(B) a requirement to provide information about any deficiency of the supplies and associated support services in meeting the original requirements for the supplies and associated support services (as stated in a statement of the urgent operational need or similar document) to the deployment decisionmaking authority.
"(2) The process may not include a requirement for any deficiency of supplies and associated support services to be the determining factor in deciding whether to deploy the supplies and associated support services.
"(3) If supplies and associated support services are deployed under the rapid acquisition and deployment procedures prescribed pursuant to this section, or under any other authority, before the completion of operational test and evaluation of the supplies and associated support services, the Director of Operational Test and Evaluation shall have access to operational records and data relevant to such supplies and associated support services in accordance with section 139(e)(3) of title 10, United States Code, for the purpose of completing operational test and evaluation of the supplies and associated support services. The access to the operational records and data shall be provided in a time and manner determined by the Secretary of Defense consistent with requirements of operational security and other relevant operational requirements.
"(f)
"(g)
[
Procurement of Alternative Fueled and Hybrid Light Duty Trucks
"(a)
"(2) The Secretary, in consultation with the Administrator, may waive the policy regarding the procurement of hybrid vehicles in paragraph (1) to the extent that the Secretary determines necessary-
"(A) in the case of trucks that are exempt from the requirements of section 303 of the Energy Policy Act of 1992 for national security reasons under subsection (b)(3)(E) of such section, to meet specific requirements of the Department of Defense for capabilities of light duty trucks;
"(B) to procure vehicles consistent with the standards applicable to the procurement of fleet vehicles for the Federal Government; or
"(C) to adjust to limitations on the commercial availability of light duty trucks that are hybrid vehicles.
"(3) This subsection applies with respect to procurements of light duty trucks in fiscal year 2005 and subsequent fiscal years.
"(b)
"(A) five percent of the total number of such trucks that are procured in each of fiscal years 2005 and 2006 are alternative fueled vehicles or hybrid vehicles; and
"(B) ten percent of the total number of such trucks that are procured in each fiscal year after fiscal year 2006 are alternative fueled vehicles or hybrid vehicles.
"(2) Light duty trucks acquired for the Department of Defense that are counted to comply with section 303 of the Energy Policy Act of 1992 for a fiscal year shall be counted to determine the total number of light duty trucks procured for the Department of Defense for that fiscal year for the purposes of paragraph (1), but shall not be counted to satisfy the requirement in that paragraph.
"(c)
"(d)
"(1) The term 'hybrid vehicle' means a motor vehicle that draws propulsion energy from onboard sources of stored energy that are both-
"(A) an internal combustion or heat engine using combustible fuel; and
"(B) a rechargeable energy storage system.
"(2) The term 'alternative fueled vehicle' has the meaning given that term in section 301 of the Energy Policy Act of 1992 (42 U.S.C. 13211)."
Temporary Emergency Procurement Authority to Facilitate the Defense Against Terrorism or Biological or Chemical Attack
Improvements in Procurements of Services
"(a)
"(1) A performance-based contract or performance-based task order that contains firm fixed prices for the specific tasks to be performed.
"(2) Any other performance-based contract or performance-based task order.
"(3) Any contract or task order that is not a performance-based contract or a performance-based task order.
"[(b) Repealed.
"(c)
"(d)
"(2) The Secretary of each military department and the head of each Defense Agency shall ensure that the personnel of the department or agency, as the case may be, who are responsible for the awarding and management of contracts for services receive appropriate training that is focused specifically on contracting for services.
"(e)
"(1) The term 'performance-based', with respect to a contract, a 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.
"(2) The term 'commercial item' has the meaning given the term in section 4(12) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(12)) [see 41 U.S.C. 103].
"(3) The term 'Defense Agency' has the meaning given the term in section 101(a)(11) of title 10, United States Code."
Program To Increase Business Innovation in Defense Acquisition Programs
"(a)
"(b)
"(c)
"(1) Procedures through which commercial private sector entities, including small-business concerns, may submit proposals recommending cost-saving and innovative ideas to acquisition program managers.
"(2) A review process designed to make recommendations on the merit and viability of the proposals submitted under paragraph (1) at appropriate times during the acquisition cycle.
"(3) Measures to limit potential disruptions to existing contracts and programs from proposals accepted and incorporated into acquisition programs of the Department of Defense.
"(4) Measures to ensure that research and development efforts of small-business concerns are considered as early as possible in a program's acquisition planning process to accommodate potential technology insertion without disruption to existing contracts and programs.
"(e)
Year 2000 Software Conversion
Defense Facility-Wide Pilot Program
"(a)
"(b)
"(2) The Secretary may designate for participation in the pilot program only those facilities that are authorized to be so designated in a law authorizing appropriations for national defense programs that is enacted after the date of the enactment of this Act [Feb. 10, 1996].
"(c)
"(1) All contracts and subcontracts for defense supplies and services that are performed at the facility.
"(2) All Department of Defense contracts and all subcontracts under Department of Defense contracts performed elsewhere that the Secretary determines are directly and substantially related to the production of defense supplies and services at the facility and are necessary for the pilot program.
"(d)
"(1) The number of existing and anticipated contracts and subcontracts performed at the facility-
"(A) for which contractors are required to provide certified cost or pricing data pursuant to section 2306a of title 10, United States Code; and
"(B) which are administered with the application of cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)].
"(2) The relationship of the facility to other organizations and facilities performing under contracts with the Department of Defense and subcontracts under such contracts.
"(3) The impact that the participation of the facility under the pilot program would have on competing domestic manufacturers.
"(4) Such other factors as the Secretary considers appropriate.
"(e)
"(2) The Secretary shall include in the notification regarding a facility designated for participation in the program a management plan addressing the following:
"(A) The proposed treatment of research and development contracts or subcontracts to be performed at the facility during the pilot program.
"(B) The proposed treatment of the cost impact of the use of commercial practices on the award and administration of contracts and subcontracts performed at the facility.
"(C) The proposed method for reimbursing the contractor for existing and new contracts.
"(D) The proposed method for measuring the performance of the facility for meeting the management goals of the Secretary.
"(E) Estimates of the annual amount and the total amount of the contracts and subcontracts covered under the pilot program.
"(3)(A) The Secretary shall ensure that the management plan for a facility provides for attainment of the following objectives:
"(i) A significant reduction of the cost to the Government for programs carried out at the facility.
"(ii) A reduction of the schedule associated with programs carried out at the facility.
"(iii) An increased use of commercial practices and procedures for programs carried out at the facility.
"(iv) Protection of a domestic manufacturer competing for contracts at such facility from being placed at a significant competitive disadvantage by the participation of the facility in the pilot program.
"(B) The management plan for a facility shall also require that all or substantially all of the contracts to be awarded and performed at the facility after the designation of that facility under subsection (b), and all or substantially all of the subcontracts to be awarded under those contracts and performed at the facility after the designation, be-
"(i) for the production of supplies or services on a firm-fixed price basis;
"(ii) awarded without requiring the contractors or subcontractors to provide certified cost or pricing data pursuant to section 2306a of title 10, United States Code; and
"(iii) awarded and administered without the application of cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)].
"(f)
"(1) is within the scope of the pilot program (as described in subsection (c)); and
"(2) is fairly and reasonably priced based on information other than certified cost and pricing data.
"(g)
"(1) to apply any amendment or repeal of a provision of law made in this Act [see Tables for classification] to the pilot program before the effective date of such amendment or repeal; and
"(2) to apply to a procurement of items other than commercial items under such program-
"(A) the authority provided in section 34 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 430) [now 41 U.S.C. 1906] to waive a provision of law in the case of commercial items, and
"(B) any exception applicable under this Act or the Federal Acquisition Streamlining Act of 1994 (
before the effective date of such provision (or amendment) to the extent that the Secretary determines necessary to test the application of such waiver or exception to procurements of items other than commercial items.
"(h)
"(A) A contract that is awarded or modified during the period described in paragraph (2).
"(B) A contract that is awarded before the beginning of such period, that is to be performed (or may be performed), in whole or in part, during such period, and that may be modified as appropriate at no cost to the Government.
"(2) The period referred to in paragraph (1), with respect to a facility designated under subsection (b), is the period that-
"(A) begins 45 days after the date of the enactment of the Act authorizing the designation of that facility in accordance with paragraph (2) of such subsection; and
"(B) ends on September 30, 2000.
"(i)
"(1) Substitution of commercial oversight and inspection procedures for Government audit and access to records.
"(2) Incorporation of commercial oversight, inspection, and acceptance procedures.
"(3) Use of alternative dispute resolution techniques (including arbitration).
"(4) Elimination of contract provisions authorizing the Government to make unilateral changes to contracts."
Elimination of Use of Class I Ozone-Depleting Substances in Certain Military Procurement Contracts
"(a)
"(2)(A)(i) Not later than 60 days after the completion of the first modification, amendment, or extension after June 1, 1993, of a contract referred to in clause (ii), the senior acquisition official (or the designee of that official) shall carry out an evaluation of the contract in order to determine-
"(I) whether the contract includes a specification or standard that requires the use of a class I ozone-depleting substance or can be met only through the use of such a substance; and
"(II) in the event of a determination that the contract includes such a specification or standard, whether the contract can be carried out through the use of an economically feasible substitute for the ozone-depleting substance or through the use of an economically feasible alternative technology for a technology involving the use of the ozone-depleting substance.
"(ii) A contract referred to in clause (i) is any contract in an amount in excess of $10,000,000 that-
"(I) was awarded before June 1, 1993; and
"(II) as a result of the modification, amendment, or extension described in clause (i), will expire more than 1 year after the effective date of the modification, amendment, or extension.
"(iii) A contract under evaluation under clause (i) may not be further modified, amended, or extended until the evaluation described in that clause is complete.
"(B) If the acquisition official (or designee) determines that an economically feasible substitute substance or alternative technology is available for use in a contract under evaluation, the appropriate contracting officer shall enter into negotiations to modify the contract to require the use of the substitute substance or alternative technology.
"(C) A determination that a substitute substance or technology is not available for use in a contract under evaluation shall be made in writing by the senior acquisition official (or designee).
"(D) The Secretary of Defense may, consistent with the Federal Acquisition Regulation, adjust the price of a contract modified under subparagraph (B) to take into account the use by the contractor of a substitute substance or alternative technology in the modified contract.
"(3) The senior acquisition official authorized to grant an approval under paragraph (1) and the senior acquisition official and designees authorized to carry out an evaluation and make a determination under paragraph (2) shall be determined under regulations prescribed by the Secretary of Defense. A senior acquisition official may not delegate the authority provided in paragraph (1).
"(4) Each official who grants an approval authorized under paragraph (1) or makes a determination under paragraph (2)(B) shall submit to the Secretary of Defense a report on that approval or determination, as the case may be, as follows:
"(A) Beginning on October 1, 1993, and continuing for 8 calendar quarters thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding quarter not later than 30 days after the end of such quarter.
"(B) Beginning on January 1, 1997, and continuing for 4 years thereafter, by submitting a report on the approvals granted or determinations made under such authority during the preceding year not later than 30 days after the end of such year.
"(5) The Secretary shall promptly transmit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives each report submitted to the Secretary under paragraph (4). The Secretary shall transmit the report in classified and unclassified forms.
"(b)
"(c)
"(1) The term 'class I ozone-depleting substance' means any substance listed under section 602(a) of the Clean Air Act (42 U.S.C. 7671a(a)).
"(2) The term 'Federal Acquisition Regulation' means the single Government-wide procurement regulation issued under section 1303(a) of title 41, United States Code."
Payment Protections for Subcontractors and Suppliers
"(a)
"(1)
"(i) Whether requests for progress payments or other payments have been submitted by the contractor to the Department of Defense in connection with that contract.
"(ii) Whether final payment to the contractor has been made by the Department of Defense in connection with that contract.
"(B) This paragraph shall apply with respect to any Department of Defense contract that is in effect on the date which is 270 days after the date of enactment of this Act [Dec. 5, 1991] or that is awarded after such date.
"(2)
"(i) The name and address of the surety or sureties on the payment bond.
"(ii) The penal amount of the payment bond.
"(iii) A copy of the payment bond.
"(B) Subparagraph (A) applies to-
"(i) a subcontractor or supplier having a subcontract, purchase order, or other agreement to furnish labor or material for the performance of a Department of Defense contract with respect to which a payment bond has been furnished to the United States pursuant to the Miller Act; and
"(ii) a prospective subcontractor or supplier offering to furnish labor or material for the performance of such a Department of Defense contract.
"(C) With respect to the information referred to in subparagraphs (A)(i) and (A)(ii), the regulations shall include authority for such information to be provided verbally to the subcontractor or supplier.
"(D) With respect to the information referred to in subparagraph (A)(iii), the regulations may impose reasonable fees to cover the cost of copying and providing requested bonds.
"(E) This paragraph shall apply with respect to any Department of Defense contract covered by the Miller Act that is in effect on the date which is 270 days after the date of enactment of this Act [Dec. 5, 1991] or that is awarded after such date.
"(3)
"(B) This paragraph shall apply with respect to any Department of Defense contract covered by the Miller Act for which a solicitation is issued after the expiration of the 60-day period beginning on the effective date of the regulations promulgated under this subsection.
"(4)
"(i) With respect to a construction contract, whether the contractor has made progress payments to the subcontractor or supplier in compliance with chapter 39 of title 31, United States Code.
"(ii) With respect to a contract other than a construction contract, whether the contractor has made progress or other payments to the subcontractor or supplier in compliance with the terms of the subcontract, purchase order, or other agreement with the prime contractor.
"(iii) With respect to either a construction contract or a contract other than a construction contract, whether the contractor has made final payment to the subcontractor or supplier in compliance with the terms of the subcontract, purchase order, or other agreement with the prime contractor.
"(iv) With respect to either a construction contract or a contract other than a construction contract, whether any certification of payment of the subcontractor or supplier accompanying the contractor's payment request to the Government is accurate.
"(B) If the contracting officer determines that the prime contractor is not in compliance with any matter referred to in clause (i), (ii), or (iii) of subparagraph (A), the contracting officer may, under procedures established in the regulations-
"(i) encourage the prime contractor to make timely payment to the subcontractor or supplier; or
"(ii) reduce or suspend progress payments with respect to amounts due to the prime contractor.
"(C) If the contracting officer determines that a certification referred to in clause (iv) of subparagraph (A) is inaccurate in any material respect, the contracting officer shall, under procedures established in the regulations, initiate appropriate administrative or other remedial action.
"(D) This paragraph shall apply with respect to any Department of Defense contract that is in effect on the date of promulgation of the regulations under this subsection or that is awarded after such date.
"(b)
"(c)
"(d)
"(e)
"(2) In addition to such other related matters as the Comptroller General considers appropriate, the matters to be assessed pursuant to paragraph (1) are the following:
"(A) Timely payment of progress or other periodic payments to subcontractors and suppliers by prime contractors on Federal contracts by-
"(i) identifying all existing statutory and regulatory provisions, categorized by types of contracts covered by such provisions;
"(ii) evaluating the feasibility and desirability of requiring that a prime contractor (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) be required to-
"(I) include in its subcontracts a payment term requiring payment within 7 days (or some other fixed term) after receiving payment from the Government; and
"(II) submit with its payment request to the Government a certification that it has timely paid its subcontractors in accordance with their subcontracts from funds previously received as progress payments and will timely make required payments to such subcontractors from the proceeds of the progress payment covered by the certification;
"(iii) evaluating the feasibility and desirability of requiring that all prime contractors (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) furnish with its payment request to the Government proof of payment of the amounts included in such payment request for payments made to subcontractors and suppliers;
"(iv) evaluating the feasibility and desirability of requiring a prime contractor to establish an escrow account at a federally insured financial institution and requiring direct disbursements to subcontractors and suppliers of amounts certified by the prime contractor in its payment request to the Government as being payable to such subcontractors and suppliers in accordance with their subcontracts; and
"(v) evaluating the feasibility and desirability of requiring direct disbursement of amounts certified by a prime contractor as being payable to its subcontractors and suppliers in accordance with their subcontracts (using techniques such as joint payee checks, escrow accounts, or direct payment by the Government), if the contracting officer has determined that the prime contractor is failing to make timely payments to its subcontractors and suppliers.
"(B) Payment protection of subcontractors and suppliers through the use of payment bonds or alternatives methods by-
"(i) evaluating the effectiveness of the modifications to part 28.2 of the Federal Acquisition Regulation Part 28.2 (48 C.F.R. 28.200) relating to the use of individual sureties, which became effective February 26, 1990;
"(ii) evaluating the effectiveness of requiring payment bonds pursuant to the Miller Act as a means of affording protection to construction subcontractors and suppliers relating to receiving-
"(I) timely payment of progress payments due in accordance with their subcontracts; and
"(II) ultimate payment of such amounts due;
"(iii) evaluating the feasibility and desirability of increasing the payment bond amounts required under the Miller Act from the current maximum amounts to an amount equal to 100 percent of the amount of the contract;
"(iv) evaluating the feasibility and desirability of requiring payment bonds for supply and services contracts (other than construction), and, if feasible and desirable, the amounts of such bonds; and
"(v) evaluating the feasibility and desirability of using letters of credit issued by federally insured financial institutions (or other alternatives) as substitutes for payment bonds in providing payment protection to subcontractors and suppliers on construction contracts (and other contracts).
"(C) Any evaluation of feasibility and desirability carried out pursuant to subparagraph (A) or (B) shall include the appropriateness of-
"(i) any differential treatment of, or impact on, small business concerns as opposed to concerns other than small business concerns;
"(ii) any differential treatment of subcontracts relating to commercial products entered into by the contractor in furtherance of its non-Government business, especially those subcontracts entered into prior to the award of a contract by the Government; and
"(iii) extending the protections regarding payment to all tiers of subcontractors or restricting them to first-tier subcontractors and direct suppliers.
"(3) The report required by paragraph (1) shall include a description of the results of the assessment carried out pursuant to paragraph (2) and may include recommendations pertaining to any of the following:
"(A) Statutory and regulatory changes providing payment protections for subcontractors and suppliers (other than a construction prime contractor subject to the provisions of sections 3903(b) and 3905 of title 31, United States Code) that the Comptroller General believes to be desirable and feasible.
"(B) Proposals to assess the desirability and utility of a specific payment protection on a test basis.
"(C) Such other recommendations as the Comptroller General considers appropriate in light of the matters assessed pursuant to paragraph (2).
"(4) The report required by paragraph (1) shall be submitted not later than by February 1, 1993, to the Committees on Armed Services and on Small Business [now the Committee on Small Business and Entrepreneurship of the Senate] of the Senate and House of Representatives.
"(f)
"(2) The report required by paragraph (1) shall be submitted to the Secretary of Defense not later than March 1, 1993. The report may include recommendations by the Inspector General on ways to improve the effectiveness of existing methods of preventing false statements.
"(g)
Advisory Panel on Streamlining and Codifying Acquisition Laws
Mentor-Protege Pilot Program
"(1)
"(2)
"(a)
"(b)
"(1) enhance the capabilities of disadvantaged small business concerns to perform as subcontractors and suppliers under Department of Defense contracts and other contracts and subcontracts; and
"(2) increase the participation of such business concerns as subcontractors and suppliers under Department of Defense contracts, other Federal Government contracts, and commercial contracts.
"(c)
"(2) A disadvantaged small business concern eligible for the award of Federal contracts may obtain assistance from a mentor firm upon entering into an agreement with the mentor firm as provided in subsection (e). A disadvantaged small business concern may not be a party to more than one agreement concurrently, and the authority to enter into agreements under subsection (e) shall only be available to such concern during the 5-year period beginning on the date such concern enters into the first such agreement. A disadvantaged small business concern receiving such assistance shall be known, for the purposes of the program, as a 'protege firm'.
"(3) In entering into an agreement pursuant to subsection (e), a mentor firm may rely in good faith on a written representation of a business concern that such business concern is a disadvantaged small business concern. The Small Business Administration shall determine the status of such business concern as a disadvantaged small business concern in the event of a protest regarding the status of such business concern. If at any time the business concern is determined by the Small Business Administration not to be a disadvantaged small business concern, assistance furnished such business concern by the mentor firm after the date of the determination may not be considered assistance furnished under the program.
"(d)
"(1) the mentor firm is not affiliated with the protege firm prior to the approval of that agreement; and
"(2) the mentor firm demonstrates that it-
"(A) is qualified to provide assistance that will contribute to the purpose of the program;
"(B) is of good financial health and character and does not appear on a Federal list of debarred or suspended contractors; and
"(C) can impart value to a protege firm because of experience gained as a Department of Defense contractor or through knowledge of general business operations and government contracting, as demonstrated by evidence that-
"(i) during the fiscal year preceding the fiscal year in which the mentor firm enters into the agreement, the total amount of the Department of Defense contracts awarded such mentor firm and the subcontracts awarded such mentor firm under Department of Defense contracts was equal to or greater than $100,000,000; or
"(ii) the mentor firm demonstrates the capability to assist in the development of protege firms, and is approved by the Secretary of Defense pursuant to criteria specified in the regulations prescribed pursuant to subsection (k).
"(e)
"(1) A developmental program for the protege firm, in such detail as may be reasonable, including-
"(A) factors to assess the protege firm's developmental progress under the program;
"(B) a description of the quantitative and qualitative benefits to the Department of Defense from the agreement, if applicable; and
"(C) goals for additional awards that [the] protege firm can compete for outside the Mentor-Protege Program.
"(2) A program participation term for any period of not more than three years, except that the term may be a period of up to five years if the Secretary of Defense determines in writing that unusual circumstances justify a program participation term in excess of three years.
"(3) Procedures for the protege firm to terminate the agreement voluntarily and for the mentor firm to terminate the agreement for cause.
"(f)
"(1) Assistance, by using mentor firm personnel, in-
"(A) general business management, including organizational management, financial management, and personnel management, marketing, and overall business planning;
"(B) engineering and technical matters such as production, inventory control, and quality assurance; and
"(C) any other assistance designed to develop the capabilities of the protege firm under the developmental program referred to in subsection (e).
"(2) Award of subcontracts on a noncompetitive basis to the protege firm under the Department of Defense or other contracts.
"(3) Payment of progress payments for performance of the protege firm under such a subcontract in amounts as provided for in the subcontract, but in no event may any such progress payment exceed 100 percent of the costs incurred by the protege firm for the performance.
"(4) Advance payments under such subcontracts.
"(5) Loans.
"(6) Assistance obtained by the mentor firm for the protege firm from one or more of the following-
"(A) small business development centers established pursuant to section 21 of the Small Business Act (15 U.S.C. 648);
"(B) entities providing procurement technical assistance pursuant to chapter 142 of title 10, United States Code; or
"(C) a historically Black college or university or a minority institution of higher education.
"(g)
"(2)(A) The Secretary of Defense may provide to a mentor firm reimbursement for the costs of the assistance furnished to a protege firm pursuant to paragraphs (1) and (6) of subsection (f) (except as provided in subparagraph (D)) as provided for in a line item in a Department of Defense contract under which the mentor firm is furnishing products or services to the Department, subject to a maximum amount of reimbursement specified in such contract, except that this sentence does not apply in a case in which the Secretary of Defense determines in writing that unusual circumstances justify reimbursement using a separate contract.
"(B) The determinations made in annual performance reviews of a mentor firm's mentor-protege agreement shall be a major factor in the determinations of amounts of reimbursement, if any, that the mentor firm is eligible to receive in the remaining years of the program participation term under the agreement.
"(C) The total amount reimbursed under this paragraph to a mentor firm for costs of assistance furnished in a fiscal year to a protege firm may not exceed $1,000,000, except in a case in which the Secretary of Defense determines in writing that unusual circumstances justify a reimbursement of a higher amount.
"(D) The Secretary may not reimburse any fee assessed by the mentor firm for services provided to the protege firm pursuant to subsection (f)(6) or for business development expenses incurred by the mentor firm under a contract awarded to the mentor firm while participating in a joint venture with the protege firm.
"(3)(A) Costs incurred by a mentor firm in providing assistance to a protege firm that are not reimbursed pursuant to paragraph (2) shall be recognized as credit in lieu of subcontract awards for purposes of determining whether the mentor firm attains a subcontracting participation goal applicable to such mentor firm under a Department of Defense contract, under a contract with another executive agency, or under a divisional or company-wide subcontracting plan negotiated with the Department of Defense or another executive agency.
"(B) The amount of the credit given a mentor firm for any such unreimbursed costs shall be equal to-
"(i) four times the total amount of such costs attributable to assistance provided by entities described in subsection (f)(6);
"(ii) three times the total amount of such costs attributable to assistance furnished by the mentor firm's employees; and
"(iii) two times the total amount of any other such costs.
"(C) Under regulations prescribed pursuant to subsection (k), the Secretary of Defense shall adjust the amount of credit given a mentor firm pursuant to subparagraphs (A) and (B) if the Secretary determines that the firm's performance regarding the award of subcontracts to disadvantaged small business concerns has declined without justifiable cause.
"(4) A mentor firm shall receive credit toward the attainment of a subcontracting participation goal applicable to such mentor firm for each subcontract for a product or service awarded under such contract by a mentor firm to a business concern that, except for its size, would be a small business concern owned and controlled by socially and economically disadvantaged individuals, but only if-
"(A) the size of such business concern is not more than two times the maximum size specified by the Administrator of the Small Business Administration for purposes of determining whether a business concern furnishing such product or service is a small business concern; and
"(B) the business concern formerly had a mentor-protege agreement with such mentor firm that was not terminated for cause.
"(h)
"(2) Notwithstanding section 8 of the Small Business Act (15 U.S.C. 637), the Small Business Administration may not determine a disadvantaged small business concern to be ineligible to receive any assistance authorized under the Small Business Act on the basis that such business concern has participated in the Mentor-Protege Program or has received assistance pursuant to any developmental assistance agreement authorized under such program.
"(3) The Small Business Administration may not require a firm that is entering into, or has entered into, an agreement under subsection (e) as a protege firm to submit the agreement, or any other document required by the Secretary of Defense in the administration of the Mentor-Protege Program, to the Small Business Administration for review, approval, or any other purpose.
"(i)
"(j)
"(2) No reimbursement may be paid, and no credit toward the attainment of a subcontracting goal may be granted, under subsection (g) for any cost incurred after September 30, 2021.
"(k)
"(l)
"(1) all technical or management assistance provided by mentor firm personnel for the purposes described in subsection (f)(1);
"(2) any new awards of subcontracts on a competitive or noncompetitive basis to the protege firm under Department of Defense contracts or other contracts, including the value of such subcontracts;
"(3) any extensions, increases in the scope of work, or additional payments not previously reported for prior awards of subcontracts on a competitive or noncompetitive basis to the protege firm under Department of Defense contracts or other contracts, including the value of such subcontracts;
"(4) the amount of any payment of progress payments or advance payments made to the protege firm for performance under any subcontract made under the Mentor-Protege Program;
"(5) any loans made by [the] mentor firm to the protege firm;
"(6) all Federal contracts awarded to the mentor firm and the protege firm as a joint venture, designating whether the award was a restricted competition or a full and open competition;
"(7) any assistance obtained by the mentor firm for the protege firm from one or more-
"(A) small business development centers established pursuant to section 21 of the Small Business Act (15 U.S.C. 648);
"(B) entities providing procurement technical assistance pursuant to chapter 142 of title 10, United States Code; or
"(C) historically Black colleges or universities or minority institutions of higher education;
"(8) whether there have been any changes to the terms of the mentor-protege agreement; and
"(9) a narrative describing the success assistance provided under subsection (f) has had in addressing the developmental needs of the protege firm, the impact on Department of Defense contracts, and addressing any problems encountered.
"(m)
"(n)
"(1) The term 'small business concern' has the meaning given such term under section 3 of the Small Business Act (15 U.S.C. 632).
"(2) The term 'disadvantaged small business concern' means a firm that has less than half the size standard corresponding to its primary North American Industry Classification System code, is not owned or managed by individuals or entities that directly or indirectly have stock options or convertible securities in the mentor firm, and is-
"(A) a small business concern owned and controlled by socially and economically disadvantaged individuals;
"(B) a business entity owned and controlled by an Indian tribe as defined by section 8(a)(13) of the Small Business Act (15 U.S.C. 637(a)(13));
"(C) a business entity owned and controlled by a Native Hawaiian Organization as defined by section 8(a)(15) of the Small Business Act (15 U.S.C. 637(a)(15));
"(D) a qualified organization employing severely disabled individuals;
"(E) a small business concern owned and controlled by women, as defined in section 8(d)(3)(D) of the Small Business Act (15 U.S.C. 637(d)(3)(D));
"(F) a small business concern owned and controlled by service–disabled veterans (as defined in section 8(d)(3) of the Small Business Act [15 U.S.C. 637(d)(3)]); and [sic]
"(G) a qualified HUBZone small business concern (as defined in section 3(p) of the Small Business Act (15 U.S.C. 632(p)); or
"(H) a small business concern that-
"(i) is a nontraditional defense contractor, as such term is defined in section 2302 of title 10, United States Code; or
"(ii) currently provides goods or services in the private sector that are critical to enhancing the capabilities of the defense supplier base and fulfilling key Department of Defense needs.
"(3) The term 'small business concern owned and controlled by socially and economically disadvantaged individuals' has the meaning given such term in section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 637(d)(3)(C)).
"(4) The term 'historically Black college and university' means any of the historically Black colleges and universities referred to in section 2323 of title 10, United States Code.
"(5) The term 'minority institution of higher education' means an institution of higher education with a student body that reflects the composition specified in section 312(b)(3), (4), and (5) of the Higher Education Act of 1965 (20 U.S.C. 1058(b)(3), (4), and (5)).
"(6) The term 'subcontracting participation goal', with respect to a Department of Defense contract, means a goal for the extent of the participation by disadvantaged small business concerns in the subcontracts awarded under such contract, as established pursuant to section 2323 of title 10, United States Code, and section 8(d) of the Small Business Act (15 U.S.C. 637(d)).
"(7) The term 'qualified organization employing the severely disabled' means a business entity operated on a for-profit or nonprofit basis that-
"(A) uses rehabilitative engineering to provide employment opportunities for severely disabled individuals and integrates severely disabled individuals into its workforce;
"(B) employs severely disabled individuals at a rate that averages not less than 20 percent of its total workforce;
"(C) employs each severely disabled individual in its workforce generally on the basis of 40 hours per week; and
"(D) pays not less than the minimum wage prescribed pursuant to section 6 of the Fair Labor Standards Act (29 U.S.C. 206) to those employees who are severely disabled individuals.
"(8) The term 'severely disabled individual' means an individual who is blind (as defined in section 8501 of title 41, United States Code) or a severely disabled individual (as defined in such section).
"(9) The term 'affiliated', with respect to the relationship between a mentor firm and a protege firm, means-
"(A) the mentor firm shares, directly or indirectly, with the protege firm ownership or management of the protege firm;
"(B) the mentor firm has an agreement, at the time the mentor firm enters into a mentor-protege agreement under subsection (e), to merge with the protege firm;
"(C) the owners and managers of the mentor firm are the parent, child, spouse, sibling, aunt, uncle, niece, nephew, grandparent, grandchild, or first cousin of an owner or manager of the protege firm;
"(D) the mentor firm has, during the 2-year period before entering into a mentor-protege agreement, employed any officer, director, principal stock holder, managing member, or key employee of the protege firm;
"(E) the mentor firm has engaged in a joint venture with the protege firm during the 2-year period before entering into a mentor-protege agreement, unless such joint venture was approved by the Small Business Administration prior to making any offer on a contract;
"(F) the mentor firm is, directly or indirectly, the primary party providing contracts to the protege firm, as measured by the dollar value of the contracts; and
"(G) the Small Business Administration has made a determination of affiliation or control under subsection (h)."
[
[
["(1) The amendments made by this section [amending section 831 of
["(2) Section 831 of the National Defense Authorization Act for Fiscal Year 1991, as in effect on September 30, 1999, shall continue to apply with respect to mentor-protege agreements entered into before October 1, 1999."]
[Section 807(b)(2) of
Credit for Indian Contracting in Meeting Certain Minority Subcontracting Goals
Equitable Participation of American Small and Minority-Owned Business in Furnishing of Commodities and Services
Requirement for Substantial Progress on Minority and Small Business Contract Awards
Definitions; Rule of Construction for Duplicate Authorization and Appropriation Provisions of Public Laws 99–500 , 99–591 , and 99–661
"SEC. 2. REFERENCES TO 99TH CONGRESS LAWS
"For purposes of this Act [
"(1) The term 'Defense Authorization Act' means the Department of Defense Authorization Act, 1987 (division A of
"(2) The term 'Defense Appropriations Act' means the Department of Defense Appropriations Act, 1987 (as contained in identical form in section 101(c) of
"(3) The term 'Defense Acquisition Improvement Act' means title X of the Defense Appropriations Act [
"SEC. 6. CONSTRUCTION OF DUPLICATE AUTHORIZATION AND APPROPRIATION PROVISIONS
"(a)
"(A) the identical provisions of those public laws referred to in such paragraph shall be treated as having been enacted only once, and
"(B) in executing to the United States Code and other statutes of the United States the amendments made by such identical provisions, such amendments shall be executed so as to appear only once in the law as amended.
"(2) Paragraph (1) applies with respect to the provisions of the Defense Appropriations Act and the Defense Authorization Act (as amended by sections 3, 4, 5, and 10(a)) referred to across from each other in the following table:
"Section 101(c) of | Section 101(c) of | Division A of
|
---|---|---|
"Title X | Title X | Title IX |
"Sec. 9122 | Sec. 9122 | Sec. 522 |
"Sec. 9036(b) | Sec. 9036(b) | Sec. 1203 |
"Sec. 9115 | Sec. 9115 | Sec. 1311 |
"(b)
"(2) Any reference in a provision of law referred to in paragraph (1) to 'the date of the enactment of this Act' shall be treated as a reference to October 18, 1986."
[For classification of provisions listed in the table, see Tables.]
Contract Goal for Minorities
Minimum Percentage of Competitive Procurements
"(a)
"(b)
Defense Procurement Reform: Congressional Findings and Policy
"(1) direct that officials in the Department of Defense refuse to enter into contracts unless the proposed prices are fair and reasonable;
"(2) continue and accelerate ongoing efforts to improve defense contracting procedures in order to encourage effective competition and assure fair and reasonable prices;
"(3) direct that replenishment parts be acquired in economic order quantities and on a multiyear basis whenever feasible, practicable, and cost effective;
"(4) direct that standard or commercial parts be used whenever such use is technically acceptable and cost effective; and
"(5) vigorously continue reexamination of policies relating to acquisition, pricing, and management of replenishment parts and of technical data related to such parts."
Modification of Regulations and Directives To Accommodate a Policy of Multiyear Procurement
Procurement Requirements for Goods Which Are Not American Goods