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(12) The term "nondevelopmental item".
(d) The term "simplified acquisition threshold" has the meaning provided that term in section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403), 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, the term means an amount equal to two times the amount specified for that term in section 4 of such Act.
(e) The term "Federal Acquisition Regulation" means the Federal Acquisition Regulation issued pursuant to section 25(c)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c)(1)). SEC. 310. [41 U.S.C. 260] STATUTES NOT APPLICABLE.
Sections 3709, 3710, and 3735 of the Revised Statutes, as amended, shall not apply to the procurement of property or services made by an executive agency pursuant to this chapter. Any provision of law which authorizes an executive agency (other than an executive agency which is exempted from the provisions of this chapter by section 302(a) of this title), to procure any property or services without advertising or without regard to said section 5 shall be construed to authorize the procurement of such property or services pursuant to the provisions of this title relating to procedures other than sealed-bid procedures.
SEC. 311. [41 U.S.C. 261] ASSIGNMENT AND DELEGATION OF PROCUREMENT FUNCTIONS AND RESPONSIBILITIES.
(a) IN GENERAL.-Except to the extent expressly prohibited by another provision of law, the head of an executive agency may delegate to any other officer or official of that agency, any power under this title.
(b) PROCUREMENTS FOR OR WITH OTHER AGENCIES.-Subject to subsection (a), to facilitate the procurement of property and services covered by this title by each executive agency for any other executive agency, and to facilitate joint procurement by those executive agencies
(1) the head of an executive agency may delegate functions and assign responsibilities relating to procurement to any officer or employee within such agency;
(2) the heads of two or more executive agencies may by agreement delegate procurement functions and assign procurement responsibilities, consistent with section 1535 of title 31, United States Code, and regulations issued under section 1074 of the Federal Acquisition Streamlining Act of 1994, from one executive agency to another of those executive agencies or to an officer or civilian employee of another of those executive agencies; and
(3) the heads of two or more executive agencies may establish joint or combined offices to exercise procurement functions and responsibilities.
SEC. 312. [41 U.S.C. 262] DETERMINATIONS AND DECISIONS.
(a) INDIVIDUAL OR CLASS DETERMINATIONS AND DECISIONS AUTHORIZED.-Determinations and decisions required to be made under this title by the head of an executive agency may be made
for an individual purchase or contract or, except to the extent expressly prohibited by another provision of law, for a class of purchases or contracts. Such determinations and decisions are final.
(b) WRITTEN FINDINGS REQUIRED.—(1) Each determination under section 305(d) or section 304C(c)(2)(B) shall be based on a written finding by the person making the determination or decision. The finding shall set out facts and circumstances that support the determination or decision.
(2) Each finding referred to in paragraph (1) is final.
(3) The head of an executive agency shall maintain for a period of not less than 6 years a copy of each finding referred to in paragraph (1) that is made by a person in that executive agency. The period begins on the date of the determination or decision to which the finding relates.
SEC. 313. [41 U.S.C. 263] PERFORMANCE BASED MANAGEMENT: ACQUI
SITION PROGRAMS. 14
(a) CONGRESSIONAL POLICY.-It is the policy of Congress that the head of each executive agency should achieve, on average, 90 percent of the cost and schedule goals established for major and nonmajor acquisition programs of the agency without reducing the performance or capabilities of the items being acquired.
(b) ESTABLISHMENT OF GOALS. (1) The head of each executive agency shall approve or define the cost, performance, and schedule goals for major acquisition programs of the agency.
(2) The chief financial officer of an executive agency shall evaluate the cost goals proposed for each major acquisition program of the agency.
(c) IDENTIFICATION OF NONCOMPLIANT PROGRAMS.-Whenever it is necessary to do so in order to implement the policy set out in subsection (a), the head of an executive agency shall
(1) determine whether there is a continuing need for programs that are significantly behind schedule, over budget, or not in compliance with performance or capability requirements; and
14 Section 313 was added by section 5051(a) of the Federal Acquisition Streamlining Act of 1994 (P.L. 103-355; 108 Stat. 3351). Subsections (c) and (d) of such section 5051 provide:
(c) ENHANCED SYSTEM OF PERFORMANCE INCENTIVES.-Within one year after the date of the enactment of this Act (Oct. 13, 1994], the Deputy Director for Management of the Office of Management and Budget, in consultation with appropriate officials in other departments and agencies of the Federal Government, shall, to the maximum extent consistent with applicable law(1) establish policies and procedures for the heads of such departments and agencies to designate acquisition positions and manage employees (including the accession, education, training and career development of employees) in the designated acquisition positions; and (2) review the incentives and personnel actions available to the heads of departments and agencies of the Federal Government for encouraging excellence in the acquisition workforce of the Federal Government and provide an enhanced system of incentives for the encouragement of excellence in such workforce which
(A) relates pay to performance (including the extent to which the performance of personnel in such workforce contributes to achieving the cost goals, schedule goals, and performance goals established for acquisition programs pursuant section 313(b) of the Federal Property and Administrative Services Act of 1949, as added by subsection (a)); and
(B) provides for consideration, in personnel evaluations and promotion decisions, of the extent to which the performance of personnel in such workforce contributes to achieving such cost goals, schedule goals, and performance goals.
(d) RECOMMENDED LEGISLATION.-Not later than one year after the date of the enactment of this Act (Oct. 13, 1994], the Administrator for Federal Procurement Policy shall submit to Congress any recommended legislation that the Secretary considers necessary to carry out section 313 of the Federal Property and Administrative Services Act of 1949, as added by subsection (a), and otherwise to facilitate and enhance management of Federal Government acquisition programs and the acquisition workforce of the Federal Government on the basis of performance.
(2) identify suitable actions to be taken, including termination, with respect to such programs.
SEC. 314. [41 U.S.C. 264] RELATIONSHIP OF COMMERCIAL ITEM PROVISIONS TO OTHER PROVISIONS OF LAW. 15
(a) APPLICABILITY OF TITLE.-Unless otherwise specifically provided, nothing in this section, section 314A, or section 314B shall be construed as providing that any other provision of this title relating to procurement is inapplicable to the procurement of commercial items.
(b) LIST OF LAWS INAPPLICABLE TO CONTRACTS FOR THE ACQUISITION OF COMMERCIAL ITEMS.-No contract for the procurement of a commercial item entered into by the head of an executive agency shall be subject to any law properly listed in the Federal Acquisition Regulation (pursuant to section 34 of the Office of Federal Procurement Policy Act).
SEC. 314A. [41 U.S.C. 264a] DEFINITIONS. 16
As used in this title, the terms "commercial item", "nondevelopmental item", "component", and "commercial component" have the meanings provided in section 4 of the Office of Federal Procurement Policy Act.
SEC. 314B. [41 U.S.C. 264b] PREFERENCE FOR ACQUISITION OF COMMERCIAL ITEMS.
(a) PREFERENCE.-The head of each executive agency shall ensure that, to the maximum extent practicable
(1) requirements of the executive agency with respect to a procurement of supplies or services are stated in terms of(A) functions to be performed;
(B) performance required; or
(C) essential physical characteristics;
(2) such requirements are defined so that commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items, may be procured to fulfill such requirements; and
(3) offerors of commercial items and nondevelopmental items other than commercial items are provided an opportunity to compete in any procurement to fill such requirements. (b) IMPLEMENTATION.-The head of each executive agency shall ensure that procurement officials in that executive agency, to the maximum extent practicable
(1) acquire commercial items or nondevelopmental items other than commercial items to meet the needs of the executive agency;
(2) require prime contractors and subcontractors at all levels under the executive agency contracts to incorporate commercial items or nondevelopmental items other than commercial items as components of items supplied to the executive agency;
15 For a provision on regulations implementing sections 314 through 314B, see section 8002 of the Federal Acquisition Streamlining Act of 1994 (P.L. 103-355; 108 Stat. 3386), set forth beginning on page 466.
fe So in law. The heading for section 314A should read “Definitions relating to procurement of commercial items.".
(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items;
(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items in response to the executive agency solicitations;
(5) revise the executive agency's procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial items; and
(6) require training of appropriate personnel in the acquisition of commercial items.
(c) PRELIMINARY MARKET RESEARCH.-(1) The head of an executive agency shall conduct market research appropriate to the circumstances
(A) before developing new specifications for a procurement by that executive agency; and
(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold.
(2) The head of an executive agency shall use the results of market research to determine whether there are commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items available that
(A) meet the executive agency's requirements;
(B) could be modified to meet the executive agency's requirements; or
(C) could meet the executive agency's requirements if those requirements were modified to a reasonable extent.
(3) In conducting market research, the head of an executive agency should not require potential sources to submit more than the minimum information that is necessary to make the determinations required in paragraph (2).
SEC. 315. [41 U.S.C. 265] CONTRACTOR EMPLOYEES: PROTECTION FROM REPRISAL FOR DISCLOSURE OF CERTAIN INFORMATION.
(a) PROHIBITION OF REPRISALS.-An employee of a contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a Member of Congress or an authorized official of an executive agency or the Department of Justice information relating to a substantial violation of law related to a contract (including the competition for or negotiation of a contract).
(b) INVESTIGATION OF COMPLAINTS.-A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint to the Inspector General of the executive agency. Unless the Inspector General determines that the complaint is frivolous, the Inspector General shall investigate the complaint and, upon completion of such investigation, submit a re
port of the findings of the investigation to the person, the contractor concerned, and the head of the agency. In the case of an executive agency that does not have an inspector general, the duties of the inspector general under this section shall be performed by an official designated by the head of the executive agency.
(c) REMEDY AND ENFORCEMENT AUTHORITY. (1) If the head of an executive agency determines that a contractor has subjected a person to a reprisal prohibited by subsection (a), the head of the executive agency may take one or more of the following actions: (A) Order the contractor to take affirmative action to abate the reprisal.
(B) Order the contractor to reinstate the person to the position that the person held before the reprisal, together with the compensation (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(C) Order the contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive agency.
(2) Whenever a person fails to comply with an order issued under paragraph (1), the head of the executive agency shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief and compensatory and exemplary damages.
(3) Any person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the order's conformance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the agency. Review shall conform to chapter 7 of title 5, United States Code.
(d) CONSTRUCTION.-Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a right or remedy otherwise available to the employee.
(e) DEFINITIONS.-In this section:
(1) The term "contract" means a contract awarded by the head of an executive agency.
(2) The term "contractor" means a person awarded a contract with an executive agency.
(3) The term "Inspector General" means an Inspector General appointed under the Inspector General Act of 1978.
SEC. 316. [41 U.S.C. 266] MERIT-BASED AWARD OF GRANTS FOR RESEARCH AND DEVELOPMENT
(a) POLICY.-It is the policy of Congress that an executive agency should not be required by legislation to award a new grant