Federal Acquisition Improvement Act of 1994

TABLE OF CONTENTS:

Title I: Contract Formation

Subtitle A: Competition Statutes

Subtitle B: Truth in Negotiations

Subtitle C: Research and Development

Subtitle D: Procurement Protests

Subtitle E: Policy, Definitions, and Other Matters

Title II: Contract Administration

Subtitle A: Contract Payment

Subtitle B: Cost Principles

Subtitle C: Audit and Access to Records

Subtitle D: Cost Accounting Standards

Subtitle E: Administration of Contract Provisions

Relating to Price, Delivery, and Product Quality

Subtitle F: Claims and Disputes

Title III: Major Systems and Service Specific Statutes

Subtitle A: Major Systems Statutes

Subtitle B: Testing Statutes

Subtitle C: Civil Reserve Air Fleet

Subtitle D: Miscellaneous

Title IV: Simplified Acquisition Threshold and Socioeconomic,

Small Business, and Miscellaneous Laws

Subtitle A: Simplified Acquisition Threshold

Subtitle B: Socioeconomic and Small Business Laws

Subtitle C: Miscellaneous Acquisition Laws

Title V: Standards of Conduct

Title VI: Defense Trade and Cooperation

Title VII: Commercial Items

Subtitle A: Definitions and Regulations

Subtitle B: Armed Services Acquisitions

Subtitle C: Civilian Agency Acquisitions

Subtitle D: Acquisitions Generally

Title VIII: Miscellaneous Provisions

Title IX: Effective Dates and Regulations

Federal Acquisition Improvement Act of 1994 - Title I: Contract Formation - Subtitle A: Competition Statutes - Part I: Armed Services Acquisitions - Amends the Competition in Contracting Act of 1984 (CICA) and other Federal procurement law with respect to subject agency (National Aeronautics and Space Administration (NASA), Coast Guard, Department of Defense (DOD), and respective military departments) procurement.

(Sec. 1002) Revises competition requirements, among other changes prohibiting purchase or contract class considerations by subject agencies in determining whether the exclusion of a particular source of covered items from competition in procurements to establish alternative sources of supply will result in reduced costs and increased competition or be in the interest of national defense.

(Sec. 1003) Revises certain qualifying circumstances for award of contracts between $100,000 and $1 million under noncompetitive procedures.

(Sec. 1011) Revises solicitation requirements, among other changes requiring the head of a subject agency to: (1) include cost or price as a factor to be considered in evaluating competitive proposals; and (2) disclose certain information to offerors on the importance of other evaluation factors in relation to cost and price.

(Sec. 1012) Relocates provisions concerning purchase option evaluation.

(Sec. 1013) Modifies notice requirements, providing, among other changes, for notice by electronic means.

(Sec. 1014) Provides, under certain conditions, for: (1) debriefings furnishing unsuccessful offerors certain basic information on the contract award; (2) protest files affording offerors reasonable access in protests to the Comptroller General (CG); and (3) award of multiple contracts for the same supply or service.

(Sec. 1016) Authorizes the head of a subject agency to: (1) take certain actions, such as issuing a new solicitation or terminating a contract, if, in connection with a protest, a solicitation, proposed award, or award does not comply with the law; and (2) pay certain costs involved in the protest, including reasonable attorney's fees, subject to prescribed limitations.

(Sec. 1021) Eliminates: (1) certain restrictions on cost and incentive contracts; and (2) annual reports by DOD advocates for competition.

Part II: Civilian Agency Acquisitions - Amends the Federal Property and Administrative Services Act of 1949 (FPASA) to make changes similar to those in part I above with respect to civilian agencies. Provides for: (1) solicitations for contracts to be awarded using sealed bid procedures; (2) multiyear contracts for the acquisition of property and services; and (3) severable contracts for procurement of services for periods crossing fiscal years.

Part III: Acquisitions Generally - Amends the Office of Federal Procurement Policy Act (OFPPA) to: (1) require establishment of policies and procedures for encouraging the consideration of past contract performance in selecting contractors; (2) require the Administrator of the Office of Federal Procurement Policy (Administrator) to prescribe for executive agencies guidance regarding such consideration; (3) repeal certain congressional reporting requirements on executive agency contract competition; and (4) direct the Federal Acquisition Regulatory Council (FAR Council) to promulgate regulations to discourage the use of nonstandard contract clauses on a repetitive basis.

Subtitle B: Truth in Negotiations - Part I: Armed Services Acquisitions - Amends Federal law (Truth in Negotiations Act (TINA)) to revise cost or pricing data requirements to: (1) repeal the sunset date for the requirement that offerors submit cost or pricing data for prime contracts above the $500,000 threshold (thus making it permanent); (2) provide for periodic inflation adjustments in such threshold; and (3) make changes in exceptions to data submission requirements.

(Sec. 1204) Provides for consistent time references with respect to when an agreement on the price of a prime contract is effective for purposes related to contract price reductions because of defective data.

Part II: Civilian Agency Acquisitions - Amends FPASA to replace requirements governing submission of cost or pricing data and commercial pricing for supplies with requirements similar to those under TINA (and the changes made above by this subtitle to TINA) governing submission of such data.

Subtitle C: Research and Development - Extends the competition requirement for awards of DOD research and development (R&D) grants and contracts to nonprofit organizations other than federally funded research and development centers.

Subtitle D: Procurement Protests - Part I: Protests to the Comptroller General - Modifies CICA's procurement protest system by: (1) adding a new definition of "protest"; (2) establishing new time frames for certain actions by the CG and others with respect to protests; (3) allowing the CG, in protests, to recommend agency payment of interested party consultant and expert witness fees, in addition to attorneys' fee currently required; (4) requiring subject agencies to pay recommended amounts or else report to the CG the reasons for failing to do so; (5) directing the CG to report to the Congress on agency implementation of CG recommendations; (6) authorizing the CG to prescribe procedures for time frame calculations and electronic filings and disseminations under the system; and (7) permitting the CG to hold protesters liable for the costs of reviewing frivolous or bad faith protests and to issue protective orders restricting access to certain procurement information.

Part II: Protests in Procurements of Automatic Data Processing - Amends FPASA to: (1) authorize the Administrator of the General Services Administration (GSA) to revoke a delegation of procurement authority after a contract is awarded when the award is connected with a violation of law; (2) require GSA's board of contract appeals (board), upon an interested party's request, to review any decision by a contracting officer alleged to have violated the law or the conditions of delegated authority; and (3) change time frames for final board decisions on protests and hearings for suspending procurement authority.

(Sec. 1434) Authorizes: (1) dismissal of frivolous and bad faith protests; (2) board ordered payment of additional specified fees to prevailing parties; and (3) board imposed procedural sanctions for willful abuses of the board's process during a protest.

(Sec. 1436) Requires public disclosure of any settlement agreement providing for dismissal of a protest and involving an expenditure of appropriated funds. Requires agencies to make any settlement payments from the judgment fund.

(Sec. 1437) Requires board rules and procedures for expeditious protest disposition to include procedures for time frame calculations and electronic transmissions.

(Sec. 1438) Adds to FPASA the new definition of "protest" added above under part I.

(Sec. 1439) Requires the GSA Administrator to collect and compile certain basic data on agency procurement of automatic data processing equipment for oversight purposes.

Subtitle E: Policy, Definitions, and Other Matters - Part I: Armed Services Acquisitions - Revises subject agency procurement law: (1) policy on defense procurement; (2) definitions, adding new terms such as "commercial item," "nondevelopmental item," and "simplified acquisition threshold" with cross references to OFPPA; and (3) provisions on decisions, while retaining requirements on the form and retention of findings.

(Sec. 1503) Consolidates provisions on delegation of procurement functions by a subject agency head.

(Sec. 1505) Makes technical changes with respect to the limitation on undefinitized contractual actions by subject agencies.

(Sec. 1506) Repeals DOD provisions on production special tooling and test equipment.

(Sec. 1507) Gives the Secretary of Defense authority to prescribe regulations on contract bids for a military department.

Part II: Civilian Agency Acquisitions - Adds the new terms specified under part I above to FPASA's definitions with cross references to OFPPA.

(Sec. 1552) Makes changes similar to those above concerning procurement function delegation and decisions for civilian agencies.

(Sec. 1554) States that the laws of the United States are amended to read as if the following had not been enacted: (1) certain general provisions of the Treasury, Postal Service and General Government Appropriations Act, 1993 concerning departments, agencies, and corporations; and (2) certain provisions of a similarly named 1994 appropriations Act concerning independent agencies.

(Sec. 1555) Authorizes the GSA Administrator to provide: (1) to qualified nonprofit agencies for the blind or other severely handicapped under the Javits-Wagner-O'Day Act (JWO), upon request, any of the services he or she is currently authorized to perform for other Federal agencies, mixed ownership corporations, or the District of Columbia (District) under FPASA; and (2) for the use of GSA supply schedules by State or local governments, the District, Puerto Rico, or Indian tribal governments, upon request, and subject to appropriate reimbursement of GSA for administrative costs incurred in such use.

Title II: Contract Administration - Subtitle A: Contract Payment - Part I: Armed Services Acquisitions - Reorganizes contract financing provisions for subject agencies, consolidating and eliminating certain ones with regard to certain navy contracts, revising conditions for progress payments, and providing for conditions for payments for commercial items.

(Sec. 2002) Repeals DOD vouchering requirements.

Part II: Civilian Agency Acquisitions - Makes similar organizational changes with respect to contract financing for executive agencies, adding provisions mirroring those for the military departments which concern action in case of fraud.

Part III: Acquisitions Generally - Amends the Prompt Payment Act to provide for an interest penalty on contract close-out lag-time.

Subtitle B: Cost Principles - Part I: Armed Services Acquisitions - Amends the Defense Procurement Improvement Act of 1985 to: (1) include NASA and the Coast Guard under allowable contractor costs provisions; (2) raise the threshold for coverage under such Act to $500,000 (adjusted periodically for inflation); and (3) exclude contracts for commercial items from coverage under such Act.

(Sec. 2102) Repeals standby profit controls for use during national emergencies.

Part II: Civilian Agency Acquisitions - Amends FPASA to replace requirements for executive agencies on allowable contractor costs with requirements nearly identical to those for DOD amended in part I above (and the changes made by such amendments).

(Sec. 2152) Disallows under covered contracts the costs of entertainment, gifts, or recreation provided by a contractor to its employees unless the FAR Council takes appropriate action after enactment of this Act to specify when they are allowable.

Part III: Acquisitions Generally - Modifies OFPPA requirements on contractor travel expenses.

Subtitle C: Audit and Access to Records - Part I: Armed Services Acquisitions - Consolidates and revises authority for subject agency examination of contractor records.

Part II: Civilian Agency Acquisitions - Relocates and modifies requirements under FPASA for executive agency examination of contractor records, replacing them with requirements nearly identical to those above under part I for subject agencies.

Subtitle D: Cost Accounting Standards - Amends OFPPA to repeal an obsolete deadline for procedures governing actions of the Cost Accounting Standards Board, while retaining provisions authorizing their issuance.

Subtitle E: Administration of Contract Provisions Relating to Price, Delivery, and Product Quality - Revises special qualification requirements for contractors on critical aircraft and ship spare parts contracts.

(Sec. 2402) Specifies certain guidelines and procedures for inclusion in DOD regulations on contractor guarantees with regard to weapon systems. Repeals congressional reporting requirements with regard to waivers of certain weapon system requirements.

Subtitle F: Claims and Disputes - Repeals DOD contract claims certification requirements.

(Sec. 2501) Restricts future payment under law of subject agency contract claims.

(Sec. 2502) Modifies military department shipbuilding contract claims requirements, among other changes repealing requirements on certification resubmission.

Title III: Major Systems and Service Specific Statutes - Subtitle A: Major Systems Statutes - Revises: (1) weapons development and procurement schedules report requirements; (2) selected acquisition report requirements; (3) unit cost report requirements; and (4) major defense acquisition program requirements concerning independent cost and manpower estimates, baseline descriptions, and deviation reporting.

(Sec. 3006) Repeals competitive prototyping and alternative source requirements.

Subtitle B: Testing Statutes - Modifies: (1) major systems and munitions programs requirements concerning survivability and lethality testing, adding additional waiver authority with respect to covered systems (and including a covered product improvement program for a covered system within such authority); (2) major system milestone II and other requirements with regard to determining the quantities to be procured for low-rate initial production; and (3) major defense acquisition program requirements concerning operational testing and evaluation, adding authority for using different operational test and evaluation procedures.

Subtitle C: Civil Reserve Air Fleet - Consolidates and revises civil reserve air fleet requirements, adding provisions for military installation use by fleet contractors, and making other changes, including those with regard to the definition of "contractor."

Subtitle D: Miscellaneous - Removes the limitation on obligation of funds for defense production, warehousing, and supply distribution purposes, requiring instead that the Secretary prescribe regulations governing the performance within DOD of such functions.

(Sec. 3052) Repeals provisions on aviation product evaluation.

(Sec. 3053) Codifies limitations on DOD and military department vessel, aircraft, and vehicle leases, with modifications.

(Sec. 3054) Repeals provisions subjecting navy contracts to the Walsh-Healey Act (WHA).

Title IV: Simplified Acquisition Threshold and Socioeconomic, Small Business, and Miscellaneous Laws - Subtitle A: Simplified Acquisition Threshold - Part I: Establishment of Threshold - Amends OFPPA to: (1) establish new simplified acquisition thresholds (SATs) of $25,000, $100,000 for agencies with Federal Acquisition Computer Network Architecture (FACNET) capability, and double such amounts for contracts awarded and performed outside the United States in support of a contingency operation (all adjusted periodically for inflation), replacing the current small purchase threshold, for use also under FPASA and subject agency procurement law; and (2) direct the Administrator to establish a program for developing and implementing FACNET (an electronic procurement system connecting executive agencies with the private sector) in executive and subject agencies.

Part II: Simplification of Procedures - Amends OFPPA to: (1) require executive agency heads awarding contracts exceeding the micro-purchase threshold (MPT) ($2,500, adjusted periodically for inflation) to ensure that procuring activities comply with Small Business Act (SBA) and other applicable Federal requirements; (2) exempt purchases not exceeding MPT from Buy American Act (BAA) requirements; and (3) revise procurement notice requirements, among other changes exempting from such requirements procurements for which notice is accomplished through FACNET.

(Sec. 4013) Directs the CG to assess and report to the Congress on the SAT's effects on small business participation in procurements below $100,000, and any resulting impact on executive agency procuring activities.

Part III: Inapplicability of Laws to Acquisitions Not in Excess of Simplified Acquisition Threshold - Provides for the applicability of future enacted procurement laws to executive and subject agency contracts not exceeding SAT unless the law specifically refers to this part and states that it modifies or supersedes it.

(Sec. 4031) Exempts executive and subject agency contracts below SAT from various specified requirements, including those for procurement integrity certifications.

Part IV: Conforming Amendments - Amends specified executive and subject agency procurement law to make conforming changes substituting "SAT" as appropriate.

Part V: Revision of Regulations - Requires: (1) the FAR Council to review the FAR to identify and amend, as appropriate, regulations applicable to acquistions below the SAT; and (2) executive agency heads to take similar action regarding applicable supplemental regulations, policies, and procedures.

Subtitle B: Socioeconomic and Small Business Laws - Amends OFPPA to include as additional functions of the Administrator developing certain policies with regard to small businesses.

(Sec. 4102) Directs the Administrator to prescribe certain regulations for subcontractors and suppliers for enforcing contractor compliance with agreed upon payment terms and relevant provisions of Federal law.

Amends: (1) the National Defense Authorization Act for Fiscal Years 1992 and 1993 to specify the types of contracts exempted from similar DOD regulations prescribed pursuant to such Act; and (2) the National Defense Authorization Act for Fiscal Years 1990 and 1991 to extend the test program for negotiation of comprehensive small business subcontracting plans.

(Sec. 4104) Establishes an interagency Small Business Procurement Advisory Council to provide information, including advisory reports, on small business procurement matters to Federal entities.

(Sec. 4105) Expresses the sense of the Congress that contractors performing Federal construction contracts should provide maximum practicable opportunities for the employment of apprentices.

Subtitle C: Miscellaneous Acquisition Laws - Amends subject and civilian agency (FPASA) law to declare that it is the policy of Congress that no legislation should be enacted that requires procurements to be made from a specified non-Federal source, unless the law identifies the non-Federal source involved and states that the procurement contravenes such policy.

Title V: Standards of Conduct - Amends OFPPA to prohibit the use of consultants to conduct evaluations or analyses of any aspect of an acquisition proposal if qualified Federal employees are available for the job.

Requires the FAR Council to review Federal regulations on use of advisory and assistance services and provide Federal agencies with appropriate guidance for determining whether Federal Government expertise is available before contracting for such services to conduct acquisitions.

(Sec. 5003) Amends the Revised Statutes to modify public contract requirements on Members of Congress, eliminating the need for a contract clause, but retaining the prohibition against benefiting from a contract entered into by the United States.

(Sec. 5004) Increases the waiting period required before significant changes proposed for acquisition regulations take effect, unless there are compelling circumstances for an earlier effective date.

Title VI: Defense Trade and Cooperation - Creates an exception to BAA requirements for micro-purchases under OFPPA.

(Sec. 6002) Revises requirements on the procurement of foreign goods to specify, among other changes, new criteria for the Secretary of Defense to consider in determining whether application of BAA is inconsistent with the public interest.

(Sec. 6003) Revises and consolidates miscellaneous limitations on procurement of foreign goods.

Title VII: Commercial Items - Subtitle A: Definitions and Regulations - Amends OFPPA to add new definitions of "commercial item," "nondevelopmental item," "component," and "commercial component."

(Sec. 7002) Requires the FAR to provide: (1) regulations on executive and subject agency acquisition of commercial items; (2) requirements pertaining to market acceptance and the use of warranties, firm fixed price contracts for commercial items and components, and past performance of items and sources as a factor in awarding contracts; and (3) rules permitting reliance on existing quality assurance systems for commercial items.

Repeals DOD provisions for acquisition of commercial and nondevelopmental items.

Subtitle B: Armed Services Acquisitions - Creates a preference under current law for procurement of commercial items by DOD, the Coast Guard, and NASA. Exempts such procurements from: (1) cost or pricing data requirements; and (2) specified provisions of Federal law and regulations thereunder, such as those relating to contingent fee prohibitions and allowable costs.

Subtitle C: Civilian Agency Acquisitions - Makes changes analogous to those under the subtitles above with respect to executive agencies.

Subtitle D: Acquisitions Generally - Amends OFPPA to direct the Administrator to prescribe regulations defining limited circumstances in which flexible deadlines can be used for submitting contract offers for commercial item procurements.

(Sec. 7303) Gives agency competition advocates the added responsibility of promoting the acquisition of commercial items.

(Sec. 7305) Requires a CG review of Federal market research use for a report to the Congress.

Title VIII: Miscellaneous Provisions - Authorizes the Administrator to conduct and report to the Congress on a program for testing alternative and innovative procurement procedures, such as those involving: (1) publication of agency needs before drafting of a solicitation; and (2) screening of sources and competition among capable vendors.

(Sec. 8001) Requires a CG review of each such test and report to the Congress on all test results.

Directs the Administrator to delegate to the Secretary of Transportation authority to conduct a similar test in carrying out acquisitions for one of the modernization programs under the Airway Capital Investment Plan.

Authorizes the Secretary to designate specified defense acquisition programs for participation in the defense acquisition pilot program under the National Defense Authorization Act for Fiscal Year 1991.

(Sec. 8002) Directs the Administrator to study and report to the Congress on participation in non-defense executive agency procurement by small businesses owned and controlled by socially and economically disadvantaged individuals.

Extends defense contract goals for such businesses and other entities to the Coast Guard and NASA.

(Sec. 8004) Amends OFPPA to add as new Administrator functions with respect to the Federal Acquisition Institute the setting of policies and procedures to establish the education and training programs authorized under OFPPA, as well as general functions of providing for Government-wide vendor and procurement employee excellence awards.

(Sec. 8005) Allows funds appropriated for a military department for supplies to be used to acquire technical (currently only design, process, and manufacturing) data and computer software, as well as releases (regardless of when the suit is brought) for past patent or copyright infringement and unauthorized data or software use.

(Sec. 8006) Expresses the sense of the Congress that the FAR Council should consider using negotiated rulemaking or similar techniques for fostering legal compliance, avoiding litigation, and achieving better private sector relations.

(Sec. 8008) Codifies requirements for identifying consulting services funding as a separate budget item.

(Sec. 8009) Designates: (1) FPASA provisions on selection of architects and engineers as the Brooks Architect-Engineers Act; (2) FPASA provsions on automatic data processing as the Brooks Automatic Data Processing Act; and (3) other appropriate provisions as the Javits-Wagner-O'Day Act.

Title IX: Effective Dates and Regulations - Specifies the effective dates of this Act and its amendments.

(Sec. 9003) Requires a CG report to the Congress evaluating how the FAR revisions made pursuant to this Act achieve its purposes.