Journal of the House of Representatives of the United States

1979 (22 U.S.C. 3601 et seq.) for the operation, maintenance, and improvement of the Panama Canal for fiscal year 1996.

(b) LIMITATIONS.-For fiscal year 1996, the Panama Canal Commission may expend from funds in the Panama Canal Revolving Fund not more than $50,741,000 for administrative expenses, of which

(1) not more than $15,000 may be used for official reception and representation expenses of the Supervisory Board of the Commission;

(2) not more than $10,000 may be used for official reception and representation expenses of the Secretary of the Commission; and

(3) not more than $45,000 may be used for official reception and representation expenses of the Administrator of the Commission.

(c) REPLACEMENT VEHICLES.-Funds available to the Panama Canal Commission shall be available for the purchase of not to exceed 38 passenger motor vehicles (including large heavy-duty vehicles to be used to transport Commission personnel across the isthmus of Panama) at a cost per vehicle of not more than $19,500. A vehicle may be purchased with such funds only as necessary to replace another passenger motor vehicle of the Commission.

SEC. 3503. EXPENDITURES IN ACCORDANCE WITH OTHER LAWS.

Expenditures authorized under this subtitle may be made only in accordance with the Panama Canal Treaties of 1977 and any law of the United States implementing those treaties.

Subtitle B-Reconstitution of Commission as Government Corporation

SEC. 3521. SHORT TITLE.

This subtitle may be cited as the "Panama Canal Amendments Act of 1995".

SEC. 3522. RECONSTITUTION OF COMMISSION AS GOVERNMENT CORPORATION.

(a) IN GENERAL.-Section 1101 of the Panama Canal Act of 1979 (22 U.S.C. 3611) is amended to read as follows:

"ESTABLISHMENT, PURPOSES, OFFICES, AND RESIDENCE OF COMMISSION

"SEC. 1101. (a) For the purposes of managing, operating, and maintaining the Panama Canal and its complementary works, installations and equipment, and of conducting operations incident thereto, in accordance with the Panama Canal Treaty of 1977 and related agreements, the Panama Canal Commission (hereinafter in this Act referred to as the 'Commission') is established as a wholly owned government corporation (as that term is used in chapter 91 of title 31, United States Code) within the executive branch of the Government of the United States. The authority of the President with respect to the Commission shall be exercised through the Secretary of Defense.

"(b) The principal office of the Commission shall be located in the Republic of Panama in one of the areas made available for use of the United States under the Panama Canal Treaty of 1977 and related agreements, but the Commission may establish branch offices in such other places as it considers necessary or appropriate for the conduct of its business. Within the meaning of the laws of the United States relating to venue in civil actions, the Commission is an inhabitant and resident of the District of Columbia and the eastern judicial district of Louisiana.".

(b) CLERICAL AMENDMENT.-The item relating to such section in the table of contents in section 1 of such Act is amended to read as follows: "1101. Establishment, Purposes, Offices, and Residence of Commission.".

SEC. 3523. SUPERVISORY BOARD.

Section 1102 of the Panama Canal Act of 1979 (22 U.S.C. 3612) is amended by striking

out so much as precedes subsection (b) and inserting in lieu thereof the following:

"SUPERVISORY BOARD

"SEC. 1102. (a) The Commission shall be supervised by a Board composed of nine members, one of whom shall be the Secretary of Defense or an officer of the Department of Defense designated by the Secretary. Not less than five members of the Board shall be nationals of the United States and the remaining members of the Board shall be nationals of the Republic of Panama. Three members of the Board who are nationals of the United States shall hold no other office in, and shall not be employed by, the Government of the United States, and shall be chosen for the independent perspective they can bring to the Commission's affairs. Members of the Board who are nationals of the United States shall cast their votes as directed by the Secretary of Defense or a designee of the Secretary of Defense.". SEC. 3524. GENERAL AND SPECIFIC POWERS OF COMMISSION.

(a) IN GENERAL.-The Panama Canal Act of 1979 (22 U.S.C. 3601 et seq.) is amended by inserting after section 1102 the following new sections:

"GENERAL POWERS OF COMMISSION

"SEC. 1102a. (a) The Commission may adopt, alter, and use a corporate seal, which shall be judicially noticed.

"(b) The Commission may by action of the Board of Directors adopt, amend, and repeal bylaws governing the conduct of its general business and the performance of the powers and duties granted to or imposed upon it by law.

"(c) The Commission may sue and be sued in its corporate name, except that—

"(1) the amenability of the Commission to suit is limited by Article VIII of the Panama Canal Treaty of 1977, section 1401 of this Act, and otherwise by law;

"(2) an attachment, garnishment, or similar process may not be issued against salaries or other moneys owed by the Commission to its employees except as provided by section 5520a of title 5, United States Code, and sections 459, 461, and 462 of the Social Security Act (42 U.S.C. 659, 661, 662), or as otherwise specifically authorized by the laws of the United States; and

"(3) the Commission is exempt from the payment of interest on claims and judgments.

"(d) The Commission may enter into contracts, leases, agreements, or other transactions.

"(e) The Commission

"(1) may determine the character of, and necessity for, its obligations and expenditures and the manner in which they shall be incurred, allowed, and paid; and

"(2) may incur, allow, and pay its obligations and expenditures, subject to pertinent provisions of law generally applicable to Government corporations.

"(f) The Commission shall have the priority of the Government of the United States in the payment of debts out of bankrupt estates.

"(g) The authority of the Commission under this section and section 1102B is subject to the Panama Canal Treaty of 1977 and related agreements, and to chapter 91 of title 31, United States Code.

"SPECIFIC POWERS OF COMMISSION "SEC. 1102b. (a) The Commission may manage, operate, and maintain the Panama Canal.

"(b) The Commission may construct or acquire, establish, maintain, and operate such activities, facilities, and appurtenances as necessary and appropriate for the accomplishment of the purposes of this Act, including the following:

"(1) Docks, wharves, piers, and other shoreline facilities.

"(2) Shops and yards.

"(3) Marine railways, salvage and towing facilities, fuel-handling facilities, and motor transportation facilities.

"(4) Power systems, water systems, and a telephone system.

"(5) Construction facilities.

"(6) Living quarters and other buildings. "(7) Warehouses, storehouses, a printing plant, and manufacturing, processing, or service facilities in connection therewith. "(8) Recreational facilities.

"(c) The Commission may use the United States mails in the same manner and under the same conditions as the executive departments of the Federal Government.

"(d) The Commission may take such actions as are necessary or appropriate to carry out the powers specifically conferred upon it.".

(b) CLERICAL AMENDMENT.-The table of contents in section 1 of such Act is amended by inserting after the item relating to section 1102 the following new items: "1102a. General powers of Commission. "1102b. Specific powers of Commission.". SEC. 3525. CONGRESSIONAL REVIEW OF BUDGET. Section 1302 of the Panama Canal Act of 1979 (22 U.S.C. 3712) is amended(1) in subsection (c)—

(A) by striking out "and subject to paragraph (2)" in paragraph (1);

(B) by striking out paragraph (2); and (C) by redesignating paragraph (3) as paragraph (2); and

(2) by striking out subsection (e) and inserting in lieu thereof the following new subsection (e):

"(e) In accordance with section 9104 of title 31, United States Code, Congress shall review the annual budget of the Commission.". SEC. 3526. AUDITS.

(a) IN GENERAL.-Section 1313 of the Panama Canal Act of 1979 (22 U.S.C. 3723) is amended

(1) by striking out the heading for the section and inserting in lieu thereof the following: "AUDITS";

(2) in subsection (a)

(A) by striking out "Financial transactions" and inserting in lieu thereof "Notwithstanding any other provision of law, and subject to subsection (d), financial transactions";

(B) by striking out "pursuant to the Accounting and Auditing Act of 1950 (31 U.S.C. 65 et seq.)";

(D) by striking out "An audit pursuant to such Act" in the last sentence and inserting in lieu thereof "Any such audit"; and

(E) by adding at the end the following new sentence: "An audit performed under this section is subject to the requirements of paragraphs (2), (3), and (5) of section 9105(a) of title 31, United States Code.";

(3) in subsection (b), by striking out "The Comptroller General" in the first sentence and inserting in lieu thereof "Subject to subsection (d), the Comptroller General"; and

(4) by adding at the end the following new subsections:

"(d) At the discretion of the Board provided for in section 1102, the Commission may hire independent auditors to perform, in lieu of the Comptroller General, the audit and reporting functions prescribed in subsections (a) and (b).

"(e) In addition to auditing the financial statements of the Commission, the Comptroller General (or the independent auditor if one is employed pursuant to subsection (d)) shall, in accordance with standards for an examination of a financial forecast estab

lished by the American Institute of Certified Public Accountants, examine and report on the Commission's financial forecast that it will be in a position to meet its financial liabilities on December 31, 1999.".

(b) CLERICAL AMENDMENT.-The item relating to such section in the table of contents in section 1 of such Act is amended to read as follows:

"1313. Audits.".

SEC. 3527. PRESCRIPTION

OF MEASUREMENT RULES AND RATES OF TOLLS. Section 1601 of the Panama Canal Act of 1979 (22 U.S.C. 3791) is amended to read as follows:

"PRESCRIPTION OF MEASUREMENT RULES AND RATES OF TOLLS

"SEC. 1601. The Commission may, subject to the provisions of this Act, prescribe and from time to time change

"(1) the rules for the measurement of vessels for the Panama Canal; and

"(2) the tolls that shall be levied for use of the Panama Canal.".

SEC. 3528. PROCEDURES FOR CHANGES IN RULES OF MEASUREMENT AND RATES OF TOLLS.

Section 1604 of the Panama Canal Act of 1979 (22 U.S.C. 3794) is amended

(1) in subsection (a), by striking out "1601(a)" in the first sentence and inserting in lieu thereof "1601";

(2) by striking out subsection (c) and inserting in lieu thereof the following new subsection (c):

"(c) After the proceedings have been conducted pursuant to subsections (a) and (b), the Commission may change the rules of measurement or rates of tolls, as the case may be. The Commission shall publish notice of any such change in the Federal Register not less than 30 days before the effective date of the change."; and

(3) by striking out subsections (d) and (e) and redesignating subsection (f) as subsection (d).

SEC. 3529. MISCELLANEOUS TECHNICAL AMENDMENTS.

The Panama Canal Act of 1979 is amended

(1) in section 1205 (22 U.S.C. 3645), by striking out "appropriation" in the last sentence and inserting in lieu thereof "fund";

(2) in section 1303 (22 U.S.C. 3713), by striking out "The authority of this section may not be used for administrative expenses.";

(3) in section 1321(d) (22 U.S.C. 3731(d)), by striking out "appropriations or" in the second sentence;

(4) in section 1401(c) (22 U.S.C. 3761(c)), by striking out "appropriated for or" in the first sentence;

(5) in section 1415 (22 U.S.C. 3775), by striking out "appropriated or" in the second sentence; and

(6) in section 1416 (22 U.S.C. 3776), by striking out "appropriated or" in the third sentence.

SEC. 3530. CONFORMING AMENDMENT TO TITLE 31, UNITED STATES CODE. Section 9101(3) of title 31, United States Code, is amended by adding at the end the following:

"(P) the Panama Canal Commission.". DIVISION D-FEDERAL ACQUISITION REFORM

SEC. 4001. SHORT TITLE.

This division may be cited as the "Federal Acquisition Reform Act of 1996".

TITLE XLI-COMPETITION

SEC. 4101. EFFICIENT COMPETITION.

(a) ARMED SERVICES ACQUISITIONS.-Section 2304 of title 10, United States Code, is amended

(1) by redesignating subsection (j) as subsection (k); and

(2) by inserting after subsection (i) the following new subsection (j):

"(j) The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in manner that is consistent with the need to efficiently fulfill the Government's requirements.".

(b) CIVILIAN AGENCY ACQUISITIONS.-Section 303 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253) is amended

(1) by redesignating subsection (h) as subsection (i); and

(2) by inserting after subsection (g) the following new subsection (h):

"(h) The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Government's requirements.".

(c) REVISIONS TO NOTICE THRESHOLDS.-Section 18(a)(1)(B) of the Office of Federal Procurement Policy Act (41 U.S.C. 416(a)(1)(B)) is amended

(A) by striking out "subsection (f)-" and all that follows through the end of the subparagraph and inserting in lieu thereof "subsection (b); and"; and

(B) by inserting after "property or services" the following: "for a price expected to exceed $10,000, but not to exceed $25,000,". SEC. 4102. EFFICIENT APPROVAL PROCEDURES.

(a) ARMED SERVICES ACQUISITIONS.-Section 2304(f)(1)(B) of title 10, United States Code, is amended

(1) in clause (i)—

(A) by striking out "$100,000 (but equal to or less than $1,000,000)" and inserting in lieu thereof "$500,000 (but equal to or less than $10,000,000)"; and

(B) by striking out "(ii), (iii), or (iv)" and inserting in lieu thereof "(ii) or (iii)"; (2) in clause (ii)—

(A) by striking out "$1,000,000 (but equal to or less than $10,000,000)" and inserting in lieu thereof "$10,000,000 (but equal to or less than $50,000,000)"; and

(B) by adding "or" at the end;

(3) by striking out clause (iii); and

(4) by redesignating clause (iv) as clause (iii).

(b) CIVILIAN AGENCY ACQUISITIONS.-Section 303(f)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(1)(B)) is amended

(1) in clause (i)—

(A) by striking out "$100,000 (but equal to or less than $1,000,000)" and inserting in lieu thereof "$500,000 (but equal to or less than $10,000,000)"; and

(B) by striking out "(ii), (iii), or (iv);” and inserting in lieu thereof "(ii) or (iii); and"; (2) in clause (ii)—

(A) by striking out "$1,000,000 (but equal to or less than $10,000,000)" and inserting in lieu thereof "$10,000,000 (but equal to or less than $50,000,000)"; and

(B) by striking out the semicolon after "civilian" and inserting in lieu thereof a comma; and

(3) in clause (iii), by striking out "$10,000,000" and inserting in lieu thereof "$50,000,000".

SEC. 4103. EFFICIENT COMPETITIVE RANGE DE

TERMINATIONS.

(a) ARMED SERVICES ACQUISITIONS.-Paragraph (4) of 2305(b) of title 10, United States Code, is amended

(1) in subparagraph (C), by striking out "(C)", by transferring the text to the end of subparagraph (B), and in that text by striking out "Subparagraph (B)" and inserting in lieu thereof "This subparagraph";

(2) by redesignating subparagraph (B) as subparagraph (C); and

(3) by inserting before subparagraph (C) (as so redesignated) the following new subparagraph (B):

"(B) If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subparagraph (A)(i) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with such criteria.".

(b) CIVILIAN AGENCY ACQUISITIONS.-Section 303B(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253b(d)) is amended

(1) by redesignating paragraph (2) as paragraph (3); and

(2) by inserting before paragraph (3) (as so redesignated) the following new paragraph

(2):

"(2) If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under paragraph (1)(A) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with such criteria.".

SEC. 4104. PREAWARD DEBRIEFINGS.

(a) ARMED SERVICES ACQUISITIONS.-Section 2305(b) of title 10, United States Code, is amended

(1) by striking out subparagraph (F) of paragraph (5);

(2) by redesignating paragraph (6) as paragraph (9); and

(3) by inserting after paragraph (5) the following new paragraphs:

"(6)(A) When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes such an offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within three days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award. The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as practicable but may refuse the request for a debriefing if it is not in the best interests of the Government to conduct a debriefing at that time.

"(B) The contracting officer is required to debrief an excluded offeror in accordance with paragraph (5) of this section only if that offeror requested and was refused a preaward debriefing under subparagraph (A) of this paragraph.

"(C) The debriefing conducted under this subsection shall include

"(i) the executive agency's evaluation of the significant elements in the offeror's offer;

"(ii) a summary of the rationale for the offeror's exclusion; and

"(iii) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.

"(D) The debriefing conducted pursuant to this subsection may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors' proposals.

"(7) The contracting officer shall include a summary of any debriefing conducted under paragraph (5) or (6) in the contract file.

"(8) The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract.".

(b) CIVILIAN AGENCY ACQUISITIONS.-Section 303B of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253b) is amended

(1) by striking out paragraph (6) of subsection (e);

(2) by redesignating subsections (f), (g), (h), and (i) as subsections (i), (j), (k), and (1), respectively; and

(3) by inserting after subsection (e) the following new subsections:

"(f)(1) When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes such an offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within 3 days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award. The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as practicable but may refuse the request for a debriefing if it is not in the best interests of the Government to conduct a debriefing at that time.

"(2) The contracting officer is required to debrief an excluded offeror in accordance with subsection (e) of this section only if that offeror requested and was refused a preaward debriefing under paragraph (1) of this subsection.

"(3) The debriefing conducted under this subsection shall include—

"(A) the executive agency's evaluation of the significant elements in the offeror's offer:

"(B) a summary of the rationale for the offeror's exclusion; and

"(C) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.

"(4) The debriefing conducted pursuant to this subsection may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors' proposals.

"(g) The contracting officer shall include a summary of any debriefing conducted under subsection (e) or (f) in the contract file.

"(h) The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract.".

SEC. 4105. DESIGN-BUILD SELECTION PROCE

DURES.

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

"§ 2305a. Design-build selection procedures

"(a) AUTHORIZATION.-Unless the traditional acquisition approach of design-bidbuild established under the Brooks Architect-Engineers Act (41 U.S.C. 541 et seq.) is used or another acquisition procedure authorized by law is used, the head of an agency shall use the two-phase selection proce

dures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (b) that the procedures are appropriate for use.

"(b) CRITERIA FOR USE.-A contracting officer shall make a determination whether twophase selection procedures are appropriate for use for entering into a contract for the design and construction of a public building, facility, or work when the contracting officer anticipates that three or more offers will be received for such contract, design work must be performed before an offeror can develop a price or cost proposal for such contract, the offeror will incur a substantial amount of expense in preparing the offer, and the contracting officer has considered information such as the following:

"(1) The extent to which the project requirements have been adequately defined. "(2) The time constraints for delivery of the project.

"(3) The capability and experience of potential contractors.

"(4) The suitability of the project for use of the two-phase selection procedures. "(5) The capability of the agency to manage the two-phase selection process. "(6) Other criteria established by the agency.

"(c) PROCEDURES DESCRIBED.-Two-phase selection procedures consist of the following: "(1) The agency develops, either in-house or by contract, a scope of work statement for inclusion in the solicitation that defines the project and provides prospective offerors with sufficient information regarding the Government's requirements (which may include criteria and preliminary design, budget parameters, and schedule or delivery requirements) to enable the offerors to submit proposals which meet the Government's needs. If the agency contracts for development of the scope of work statement, the agency shall contract for architectural and engineering services as defined by and in accordance with the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.).

"(2) The contracting officer solicits phaseone proposals that—

“(A) include information on the offeror's—
"(i) technical approach; and
"(ii) technical qualifications; and
"(B) do not include-

"(i) detailed design information; or
"(ii) cost or price information.

"(3) The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include specialized experience and technical competence, capability to perform, past performance of the offeror's team (including the architect-engineer and construction members of the team) and other appropriate factors, except that costrelated or price-related evaluation factors are not permitted. Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals. The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation.

"(4) The contracting officer selects as the most highly qualified the number of offerors specified in the solicitation to provide the property or services under the contract and requests the selected offerors to submit phase-two competitive proposals that include technical proposals and cost or price information. Each solicitation establishes with respect to phase two

"(A) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work (or both), and

"(B) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with paragraphs (2), (3), and (4) of section 2305(a) of this title.

The contracting officer separately evaluates the submissions described in subparagraphs (A) and (B).

"(5) The agency awards the contract in accordance with section 2305(b)(4) of this title. "(d) SOLICITATION TO STATE NUMBER OF OFFERORS TO BE SELECTED FOR PHASE TWO REQUESTS FOR COMPETITIVE PROPOSALS.-A solicitation issued pursuant to the procedures described in subsection (c) shall state the maximum number of offerors that are to be selected to submit competitive proposals pursuant to subsection (c)(4). The maximum number specified in the solicitation shall not exceed 5 unless the agency determines with respect to an individual solicitation that a specified number greater than 5 is in the Government's interest and is consistent with the purposes and objectives of the two-phase selection process.

"(e) REQUIREMENT FOR GUIDANCE AND REGULATIONS. The Federal Acquisition Regulation shall include guidance

"(1) regarding the factors that may be considered in determining whether the twophase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;

"(2) regarding the factors that may be used in selecting contractors; and

"(3) providing for a uniform approach to be used Government-wide.".

(2) The table of sections at the beginning of chapter 137 of such title is amended by adding after the item relating to section 2305 the following new item:

"2305a. Design-build selection procedures.".

(b) CIVILIAN AGENCY ACQUISITIONS.-(1) Title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) is amended by inserting after section 303L the following new section: "SEC. 303M. DESIGN-BUILD SELECTION PROCE

DURES.

"(a) AUTHORIZATION.-Unless the traditional acquisition approach of design-bidbuild established under the Brooks Architect-Engineers Act (title IX of this Act) is used or another acquisition procedure authorized by law is used, the head of an executive agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (b) that the procedures are appropriate for use.

"(1) The extent to which the project requirements have been adequately defined. "(2) The time constraints for delivery of the project.

"(3) The capability and experience of potential contractors.

"(4) The suitability of the project for use of the two-phase selection procedures.

"(5) The capability of the agency to manage the two-phase selection process.

"(6) Other criteria established by the agen

cy.

"(2) The contracting officer solicits phaseone proposals that

"(A) include information on the offeror's"(i) technical approach; and

"(ii) technical qualifications; and

"(B) do not include

"(i) detailed design information; or "(ii) cost or price information.

"(A) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work (or both), and

"(B) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with subsections (b), (c), and (d) of section 303A.

The contracting officer separately evaluates the submissions described in subparagraphs (A) and (B).

"(5) The agency awards the contract in accordance with section 303B of this title.

"(d) SOLICITATION TO STATE NUMBER OF OFFERORS TO BE SELECTED FOR PHASE TWO REQUESTS FOR COMPETITIVE PROPOSALS.-Ą solicitation issued pursuant to the procedures described in subsection (c) shall state the maximum number of offerors that are to be selected to submit competitive proposals pursuant to subsection (c)(4). The maximum number specified in the solicitation shall not exceed 5 unless the agency determines with respect to an individual solicitation that a specified number greater than 5 is in the Government's interest and is consistent with the purposes and objectives of the two-phase selection process.

"(e) REQUIREMENT FOR GUIDANCE AND REGULATIONS. The Federal Acquisition Regulation shall include guidance

"(1) regarding the factors that may be considered in determining whether the twophase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;

029-065_vol1 D-00--7

"(2) regarding the factors that may be used in selecting contractors; and

"(3) providing for a uniform approach to be used Government-wide.".

(2) The table of sections at the beginning of such Act is amended by inserting after the item relating to section 303L the following new item:

"Sec. 303M. Design-build selection procedures.".

TITLE XLII-COMMERCIAL ITEMS SEC. 4201. COMMERCIAL ITEM EXCEPTION TO REQUIREMENT FOR CERTIFIED COST OR PRICING DATA. (a) ARMED SERVICES ACQUISITIONS.-(1) Subsections (b), (c), and (d) of section 2306a of title 10, United States Code, are amended to read as follows:

"(b) EXCEPTIONS.

"(1) IN GENERAL.-Submission of certified cost or pricing data shall not be required under subsection (a) in the case of a contract, a subcontract, or modification of a contract or subcontract

"(A) for which the price agreed upon is based on

"(i) adequate price competition; or

"(ii) prices set by law or regulation; "(B) for the acquisition of a commercial item; or

"(2) MODIFICATIONS OF CONTRACTS AND SUBCONTRACTS FOR COMMERCIAL ITEMS.-In the case of a modification of a contract or subcontract for a commercial item that is not covered by the exception to the submission of certified cost or pricing data in paragraph (1)(A) or (1)(B), submission of certified cost or pricing data shall not be required under subsection (a) if—

"(A) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1)(A) or (1)(B); and

"(B) the modification would not change the contract or subcontract, as the case may be, from a contract or subcontract for the acquisition of a commercial item to a contract or subcontract for the acquisition of an item other than a commercial item.

"(c) COST OR PRICING DATA ON BELOWTHRESHOLD CONTRACTS.

"(1) AUTHORITY TO REQUIRE SUBMISSION.— Subject to paragraph (2), when certified cost or pricing data are not required to be submitted by subsection (a) for a contract, subcontract, or modification of a contract or subcontract, such data may nevertheless be required to be submitted by the head of the procuring activity, but only if the head of the procuring activity determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract. In any case in which the head of the procuring activity requires such data to be submitted under this subsection, the head of the procuring activity shall justify in writing the reason for such requirement.

"(2) EXCEPTION.-The head of the procuring activity may not require certified cost or pricing data to be submitted under this paragraph for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in subparagraph (A) or (B) of subsection (b)(1).

"(3) DELEGATION OF AUTHORITY PROHIBITED. The head of a procuring activity may not delegate functions under this paragraph. "(d) SUBMISSION OF OTHER INFORMATION."(1) AUTHORITY TO REQUIRE SUBMISSION.— When certified cost or pricing data are not

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required to be submitted under this section for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the exceptions in subsection (b)(1)(A), the data submitted shall include, at a minimum, appropriate information on the prices at which the same item or similar items have previously been sold that is adequate for evaluating the reasonableness of the price for the procurement.

"(2) LIMITATIONS ON AUTHORITY.-The Federal Acquisition Regulation shall include the following provisions regarding the types of information that contracting officers may require under paragraph (1):

"(A) Reasonable limitations on requests for sales data relating to commercial items. "(B) A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial items from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations.

"(C) A statement that any information received relating to commercial items that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.”.

(2) Section 2306a of such title is further amended

(A) by striking out subsection (h); and (B) by redesignating subsection (i) as subsection (h).

(b) CIVILIAN AGENCY ACQUISITIONS.-(1) Subsections (b), (c) and (d) of section 304A of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 254b) are amended to read as follows:

"(b) EXCEPTIONS.

"(1) IN GENERAL.-Submission of certified cost or pricing data shall not be required under subsection (a) in the case of a contract, a subcontract, or a modification of a contract or subcontract

"(A) for which the price agreed upon is based on

"(i) adequate price competition; or "(ii) prices set by law or regulation; "(B) for the acquisition of a commercial item; or

"(C) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this section may be waived and justifies in writing the reasons for such determination. “(2) MODIFICATIONS OF CONTRACTS AND SUBCONTRACTS FOR COMMERCIAL ITEMS.-In the case of a modification of a contract or subcontract for a commercial item that is not covered by the exception to the submission of certified cost or pricing data in paragraph (1)(A) or (1)(B), submission of certified cost or pricing data shall not be required under subsection (a) if

"(A) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1)(A) or (1)(B); and

"(c) COST OR PRICING DATA ON BELOWTHRESHOLD CONTRACTS.

"(1) AUTHORITY TO REQUIRE SUBMISSION.Subject to paragraph (2), when certified cost or pricing data are not required to be submitted by subsection (a) for a contract, subcontract, or modification of a contract or

subcontract, such data may nevertheless be required to be submitted by the head of the procuring activity, but only if the head of the procuring activity determines that such data are necessary for the evaluation by the agency of the reasonableness of the price of the contract, subcontract, or modification of a contract or subcontract. In any case in which the head of the procuring activity requires such data to be submitted under this subsection, the head of the procuring activity shall justify in writing the reason for such requirement.

'(3) DELEGATION OF AUTHORITY PROHIBITED. The head of a procuring activity may not delegate the functions under this paragraph.

"(d) SUBMISSION OF OTHER INFORMATION.— "(1) AUTHORITY TO REQUIRE SUBMISSION.— When certified cost or pricing data are not required to be submitted under this section for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the exceptions in subsection (b)(1)(A), the data submitted shall include, at a minimum, appropriate information on the prices at which the same item or similar items have previously been sold that is adequate for evaluating the reasonableness of the price for the procurement.

“(2) LIMITATIONS ON AUTHORITY.-The Federal Acquisition Regulation shall include the following provisions regarding the types of information that contracting officers may require under paragraph (1):

"(C) A statement that any information received relating to commercial items that is exempt from disclosure under section 552(b) of title 5 shall not be disclosed by the Federal Government.".

(2) Section 304A of such Act is further amended

(A) by striking out subsection (h); and (B) by redesignating subsection (i) as subsection (h).

SEC. 4202. APPLICATION OF SIMPLIFIED PROCEDURES TO CERTAIN COMMERCIAL ITEMS.

(a) ARMED SERVICES ACQUISITIONS.—(1) Section 2304(g) of title 10, United States Code, is amended

(A) in paragraph (1), by striking out "shall provide for special simplified procedures for purchases of" and all that follows through the end of the paragraph and inserting in lieu thereof the following: "shall provide for

"(A) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and

"(B) special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the

property or services sought and on market research, that offers will include only commercial items."; and

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

"(4) The head of an agency shall comply with the Federal Acquisition Regulation provisions referred to in section 31(g) of the Office of Federal Procurement Policy Act (41 U.S.C. 427).".

(2) Section 2305 of title 10, United States Code, is amended in subsection (a)(2) by inserting after "(other than for" the following: "a procurement for commercial items using special simplified procedures or".

(b) CIVILIAN AGENCY ACQUISITIONS.-(1) Section 303(g) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)) is amended

"(A) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and

"(B) special simplified procedures for purchases of property and services for amounts. greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial items."; and

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

"(5) An executive agency shall comply with the Federal Acquisition Regulation provisions referred to in section 31(g) of the Office of Federal Procurement Policy Act (41 U.S.C. 427)."

(2) Section 303A of such Act (41 U.S.C. 253a) is amended in subsection (b) by inserting after "(other than for" the following: "a procurement for commercial items using special simplified procedures or".

(1) in subsection (a), by striking out "shall provide for special simplified procedures for purchases of" and all that follows through the end of the subsection and inserting in lieu thereof the following: "shall provide for

"(1) special simplified procedures for purchases of property and services for amounts not greater than the simplified acquisition threshold; and

"(2) special simplified procedures for purchases of property and services for amounts greater than the simplified acquisition threshold but not greater than $5,000,000 with respect to which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial items."; and

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

"(g) SPECIAL RULES FOR COMMERCIAL ITEMS. The Federal Acquisition Regulation shall provide that, in the case of a purchase of commercial items using special simplified procedures, an executive agency

"(1) shall publish a notice in accordance with section 18 and, as provided in subsection (b)(4) of such section, permit all responsible sources to submit a bid, proposal, or quotation (as appropriate) which shall be considered by the agency;

"(2) may not conduct the purchase on a sole source basis unless the need to do so is justified in writing and approved in accordance with section 2304 of title 10, United

States Code, or section 303 of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253), as applicable; and

"(3) shall include in the contract file a written description of the procedures used in awarding the contract and the number of offers received.".

(d) SIMPLIFIED NOTICE.-(1) Section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416) is amended

(A) in subsection (a)(6), by inserting before "submission" the following: "issuance of solicitations and the"; and

(B) in subsection (b)(6), by striking out "threshold-" and inserting in lieu thereof "threshold, or a contract for the procurement of commercial items using special simplified procedures-".

(e) EFFECTIVE DATE.-The authority to issue solicitations for purchases of commercial items in excess of the simplified acquisition threshold pursuant to the special simplified procedures authorized by section 2304(g)(1) of title 10, United States Code, section 303(g)(1) of the Federal Property and Administrative Services Act of 1949, and section 31(a) of the Office of Federal Procurement Policy Act, as amended by this section, shall expire three years after the date on which such amendments take effect pursuant to section 4401(b). Contracts may be awarded pursuant to solicitations that have been issued before such authority expires, notwithstanding the expiration of such author

ity.

SEC. 4203. INAPPLICABILITY OF CERTAIN PROCUREMENT LAWS ΤΟ COMMERCIALLY AVAILABLE OFF-THE-SHELF ITEMS.

(a) LAWS LISTED IN THE FAR.-The Office of Federal Procurement Policy Act (41 U.S.C. 401) et seq.) is amended by adding at the end the following: "SEC. 35. COMMERCIALLY AVAILABLE OFF-THESHELF ITEM ACQUISITIONS: LISTS OF INAPPLICABLE LAWS IN FEDERAL ACQUISITION REGULATION. "(a) LISTS OF INAPPLICABLE PROVISIONS OF LAW. (1) The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to contracts for the procurement of commercially available offthe-shelf items.

"(2) A provision of law that, pursuant to paragraph (3), is properly included on a list referred to in paragraph (1) may not be construed as being applicable to contracts referred to in paragraph (1). Nothing in this section shall be construed to render inapplicable to such contracts any provision of law that is not included on such list.

"(3) A provision of law described in subsection (b) shall be included on the list of inapplicable provisions of law required by paragraph (1) unless the Administrator for Federal Procurement Policy makes a written determination that it would not be in the best interest of the United States to exempt such contracts from the applicability of that provision of law. Nothing in this section shall be construed as modifying or superseding, or as being intended to impair or restrict authorities or responsibilities under

"(A) section 15 of the Small Business Act (15 U.S.C. 644); or

"(B) bid protest procedures developed under the authority of subchapter V of chapter 35 of title 31, United States Code; subsections (e) and (f) of section 2305 of title 10, United States Code; or subsections (h) and (i) of section 303B of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253b).

"(b) COVERED LAW.-Except as provided in subsection (a)(3), the list referred to in subsection (a)(1) shall include each provision of law that, as determined by the Administrator, imposes on persons who have been

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Journal of the House of Representatives of the United States, Teil 1