Summary: H.R.4209 — 98th Congress (1983-1984)All Information (Except Text)

Bill summaries are authored by CRS.

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House agreed to Senate amendment with amendment (10/02/1984)

(House agreed to Senate amendment with an amendment)

Small Business and Federal Procurement Competition Enhancement Act of 1984 - Title I: Purposes and Definitions - Sets forth the purposes of this Act. Amends the Office of Federal Policy Procurement Act to define a "major system" to mean a combination of elements that will function together to produce the capabilities required to fulfill a mission need. Considers a system to be a major system if: (1) the Department of Defense is responsible for the system and the total expenditures for research, development, test and evaluation for the system are estimated to be more than $75,000,000 or the eventual total expenditure for procurement will be more than $300,000,000; (2) a civilian agency is responsible for the system and total expenditures are estimated to exceed the greater of $750,000 or the dollar threshold established by OMB Circular A-109 (relating to major systems acquisitions); or (3) the system is designated a "major system" by the head of the agency responsible for the system. Defines "technical data" to mean recorded information (regardless of the form or method of the recording) of a scientific or technical nature relating to supplies procured by an agency.

Title II: Amendments to the Federal Property and Administrative Services Act of 1949 Planning for Future Competition - Amends the Federal Property and Administrative Service Act of 1949 to require the head of an agency to consider requiring in a solicitation for the award of a development contract for a major system: (1) proposals to incorporate in the design of the major system items which are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source; and (2) with respect to items that are likely to be required in substantial quantities during the system's service life, proposals to incorporate in the design of the major system items which the United States will be able to acquire competitively in the future. Requires the head of an agency to consider requiring in a solicitation for the award of a production contract for a major system proposals identifying opportunities to ensure that the United States will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system.

Defines a "qualification requirement" to mean a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a contract. Requires the head of an agency, before enforcing any qualification requirement to: (1) justify its necessity; (2) specify all requirements which a prospective offeror must satisfy; (3) estimate the costs of testing and evaluation likely to be incurred; and (4) provide a potential offeror an opportunity to demonstrate its ability. Permits an agency to waive certain of the above requirements for up to two years if it is unreasonable to specify the standards for qualification.

Requires the head of an agency, if the number of qualified sources or qualified products available to compete actively for an anticipated future requirement is less than two, to: (1) periodically publish notice in the Commerce Business Daily soliciting additional sources or products, unless such publication would compromise national security; and (2) bear the cost of conducting testing and evaluation for a small business concern or a product manufactured by a small business concern if the agency determines that such additional sources or products are likely to result in cost savings from increased competition.

Requires a contract for property or services entered into by an executive agency which provides for the delivery of technical data to provide that: (1) a contractor or subcontractor shall be prepared to furnish to the contracting officer a written justification for any restriction asserted by the contractor or subcontractor on the right of the United States to use such technical data; and (2) the contracting officer may review the validity of any asserted restriction if the officer determines that reasonable grounds exist to question the current validity of the restriction and that the continued adherence to the restriction by the United States would make it impracticable to procure the item competitively at a later time. Sets forth provisions concerning a contracting officer's challenge to such a restriction, a contractor's response, and the disposition of a challenge.

Prohibits an executive agency, when purchasing supplies commercially through noncompetitive procedures, from paying more than the lowest price at which the supplier sells such supplies to the public. Requires such a supplier to certify that the price is not more than the lowest commercial price or to justify a higher price. Permits exceptions to the requirements of the previous two sentences because of: (1) national security considerations; or (2) differences in quantities, quality, delivery, or other conditions.

Requires each executive agency to procure supplies in such quantity as: (1) will result in the total cost and unit cost most advantageous to the United States, where practicable; and (2) does not exceed the quantity reasonably expected to be required by the agency.

Requires each contract for the purchase of property or services made by an executive agency to provide that the contractor will not: (1) enter into any agreement with a subcontractor that has the effect of unreasonably restricting sales by the subcontractor to the United States; or (2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales to the United States.

Title III: Amendments to the Office of Federal Procurement Policy Act - Requires the legitimate proprietary interest of the United States and of a contractor in technical or other data to be defined in regulations prescribed as part of a "single system of Government-wide procurement regulations" (as defined in the Office of Federal Procurement Policy Act.) Prohibits such regulations from impairing any right of the United States or of any contractor with respect to patents or copyrights or any other right in technical data otherwise established by law. Requires such regulations to provide that executive agencies may not require persons who have developed products or processes offered or to be offered for sale to the public to provide to the United States technical data, except as necessary for operations and maintenance. Requires the regulations to provide the United States with unlimited rights in technical data developed exclusively with Federal funds if delivery of such data: (1) was required as an element of performance under a contract; and (2) is needed to ensure the competitive acquisition of supplies or services. Requires the regulations to provide the United States with an unrestricted, royalty-free right to use, or to have its contractors use, for governmental purposes technical data developed exclusively with Federal funds. Requires the following factors to be considered in prescribing the regulations: (1) whether the technical data was developed exclusively with Federal funds, exclusively at private expense, or in part with Federal funds and in part at private expense; (2) how such regulations can insure that small businesses will be utilized; and (3) the interest of the United States in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture. Sets forth specified provisions relating to technical data that the regulations shall require of a contract for property or services entered into by an executive agency, including provisions: (1) defining the rights of each party regarding the technical data to be delivered; (2) specifying the technical data to be delivered; (3) assuring that the technical data furnished is accurate and complete; and (4) establishing remedies.

Sets forth provisions concerning publication of proposed procurement regulations in the Federal Register.

Revises provisions of the Office of Federal Procurement Policy Act relating to procurement notices. Requires the Secretary of Commerce to publish promptly in the Commerce Business Daily each notice of an executive agency: (1) intending to solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000, or intending to place an order expected to exceed $10,000 under a basic agreement; and (2) awarding a contract for property or services for a price exceeding $25,000, or placing an order under a basic agreement exceeding $25,000. Requires each notice of solicitation to include specified information, including provisions that: (1) state whether the technical data required to respond to the solicitation will not be furnished as part of the solicitation, and identify the Government source from which the technical data may be obtained; and (2) state whether an offeror, its product, or service must meet a qualification requirement in order to be eligible for award, and, if so, identify the office from which the qualification requirement may be obtained.

Title IV: Amendments to the Small Business Act - Amends the Small Business Act to prohibit the Small Business Administration (SBA) from: (1) establishing an exemption from the requirements that Government procurement officers refer questions as to a small business' eligibility as a Government contractor to the SBA for disposition; or (2) refusing to accept such a referral.

Declares it to be the policy of the United States that small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency, including contracts and subcontracts for subsystems, assemblies, components, and related services for major systems. Declares that it is further the policy of the United States that its prime contractors establish procedures to ensure the timely payment of amounts due pursuant to the terms of their subcontracts with such concerns.

Requires the SBA to assign to each major procurement center a breakout procurement center representative who shall: (1) be an advocate for the breakout of components for competitive procurement while maintaining the integrity of the system in which such items are used, and for full and open competition for the procurement of supplies and services by such center; (2) attend any provisioning conference during which determinations are made as to whether requirements are to be procured through other than full and open competition and make recommendations with respect to such requirements to conference members; (3) review restrictions on competition previously imposed on items through acquisition method coding and recommend the prompt reevaluation of such limitations; (4) review restrictions on competition that arise out of restrictions on the Government's rights in technical data and, when appropriate, recommend that the contracting officer initiate a review of the validity of such restriction; (5) obtain and make available to the appropriate procurement center personnel unrestricted technical data for the preparation of a competitive solicitation package for any item of supply or service previously procured noncompetitively due to the unavailability of such data; (6) have access to the unclassified procurement records and other data of the procurement center; (7) receive unsolicited engineering proposals for value analysis; and (8) review technical data acquisition and management systems to assure the maximum availability and access to data needed for the preparation of offers to sell to the United States those supplies to which such data pertain which potential offerors are entitled to receive. Permits a representative to appeal a failure to act favorably on any recommendation made pursuant to the previous sentence. Requires the SBA to assign at least two small business technical advisers to each major procurement center in addition to such other advisers as may be authorized from time to time.

Requires the Administrator of the SBA and the Comptroller General to jointly establish standards for measuring cost savings achieved by breakout procurement center representatives and the extent to which competition has been increased as a result of their efforts. Requires the Administrator to report to Congress annually.

Revises provisions of the Small Business Act relating to procurement notices.

Requires the Secretary of Commerce to publish promptly in the Commerce Business Daily each notice of an executive agency: (1) intending to solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000, or intending to place an order expected to exceed $10,000 under a basic agreement; and (2) awarding a contract for property or services for a price exceeding $25,000, or placing an order under a basic agreement exceeding $25,000. Requires each notice of solicitation to include specified information, including provisions that: (1) state whether the technical data required to respond to the solicitation will not be furnished as part of the solicitation, and identify the Government source from which the technical data may be obtained; and (2) state whether an offeror, its product, or service must meet a qualification requirement in order to be eligible for award, and, if so, identify the office from which the qualification requirement may be obtained. Prohibits an executive agency from awarding a contract using procedures other than competitive procedures unless a written justification for the use of such procedures has been approved: (1) for a contract of an amount between $100,000 and $1,000,000, by the advocate for competition for the procuring activity; (2) for a contract of an amount between $1,000,000 and $10,000,000, by the head of the procuring activity or a delegate who, if a member of the Armed Forces, is a general or flag officer, or, if a civilian is a GS-16 or above; or (3) for a contract of an amount exceeding $10,000,000, by the senior procurement executive of the agency. Requires, in addition, that all other applicable requirements of the Federal Property and Administrative Services Act of 1949 have been satisfied.

Title V: Other Procurement Provisions - Requires the single system of Government-wide procurement regulations to be revised to include or amend provisions relating to the manner in which each executive agency may negotiate prices for supplies to be obtained through the use of other than competitive procedures. Requires the revision to specify the incurred overhead a contractor may appropriately allocate to such supplies. Requires the contractor to identify those supplies which it did not manufacture or to which it did not contribute significant value.

Requires personnel evaluations of agency employees whose primary duties pertain to awarding contracts to address such employees' efforts to further the objectives and purposes of the Federal acquisition system.

Requires the Administrator of the Office of Federal Procurement Policy to submit to Congress a report on the desirability and feasibility of various methods that may be used to qualify competitive sources for subsystems, assemblies, and components acquired as part of a major system established by an agency pursuant to OMB Circular A-109 and likely to be reprocured in substantial quantities during the system's service life.

Makes technical amendments to specified laws.

Repeals provisions of the Defense Procurement Reform Act of 1984 relating to the delegation of certain procurement functions.