S.2489 - Small Business and Federal Procurement Competition Enhancement Act of 198498th Congress (1983-1984)
Summary: S.2489 — 98th Congress (1983-1984)
(Measure indefinitely postponed in Senate, H. R. 4209 passed in lieu)
Indefinitely postponed in Senate (08/07/1984)
Small Business and Federal Procurement Competition Enhancement Act of 1984 - Amends the Small Business Act to set forth specified evaluation factors to be included by Federal agencies with respect to solicitations for competitive and noncompetitive awards of development or production contracts for a major system. Provides a waiver for certain evaluation factors if the contracting officer determines in writing that such provisions would not be applicable to the production contract or would not be in the best interests of the Government.
Requires an agency before it can establish or enforce any existing prequalification requirement with respect to the awarding of a contract to: (1) prepare a written justification stating the necessity for establishing such requirement and the reasons why free and open competition is not feasible; (2) specify in writing and make available upon request all standards which a contractor, or its product, must satisfy in order to become qualified; (3) specify an estimate of the testing and evaluation costs to be incurred by such contractor to become qualified; (4) ensure that such contractor is provided, upon request, an opportunity to demonstrate its ability to meet such standards; and (5) promptly inform such contractor as to whether qualification has been attained. Provides that a person who is denied an opportunity to demonstrate their ability to meet such standards may not be denied the opportunity to submit and have considered an offer for a contract solely because such person: (1) is not on a qualified bidder's list; or (2) in the case of a contract for the purchase of a product, does not have its product on a qualified product's list. Sets forth the procedures an agency must follow in the event that the number of available qualified sources or products is less than two actual manufacturers or the products of two actual manufacturers, respectively.
Requires the examination and revalidation of a prequalification requirement within seven years after the establishment or enforcement by an agency of such requirement. Prohibits an agency, except in emergency cases, from enforcing such prequalification requirement unless such agency complies with specified requirements.
Requires a report prepared under the direction of the Office of Federal Procurement to be submitted to the Congress not later than July 1, 1985, on the desirability and feasibility of requiring a contractor for a major system to establish and maintain procedures to qualify competing sources for those components of the system likely to be needed in substantial quantities during such system's life.
Sets forth additional information which is to be included in all notices of proposed competitive and noncompetitive civilian and defense procurement actions of $10,000 and above.
Requires an agency to: (1) publicly post at the contracting office, or otherwise make available, a compilation of information relating to procurement actions in excess of $2,500 which would have been synopsized in the Commerce Business Daily if such actions had equalled or exceeded the applicable dollar threshold for publication; and (2) make available to small businesses the solicitation package for on-going procurement actions and permit the copying of such actions.
Declares it to be the policy of the United States that small businesses and small businesses owned and controlled by socially and economically disadvantaged individuals shall, to the maximum extent possible, have the opportunity to participate in the performance of contracts and subcontracts which are in excess of $10,000 and are not for personal services for subsystems, assemblies, components, and related services for major systems. Directs the Comptroller General of the United States, not later than 18 months after the date of enactment of this section, to transmit to the Congress a report evaluating the implementation of such policy and the extent to which it has increased the opportunity of small businesses and small businesses owned and controlled by socially and economically disadvantaged individuals to participate in Government contracts and subcontracts.
Requires an offeror submitting a proposal for a contract to furnish information in such proposal identifying: (1) items that will be delivered to the United States under such contract for which technical data will not be provided to the United States; and (2) technical data delivered to the United States under such contract that will not be provided with restrictions on the Government's right to use such data for its own purposes. Requires a contractor, at a time specified in the contract, to supply information similar to that required of an offeror regarding those items to be delivered to the United States under such contract to which it would be impracticable to ascertain, at the time such contract was entered into, the technical data relating to such items that will not be provided to the United States with unlimited rights. Requires an agency to make the supplying of such information by a contractor a consideration in the selection of such contractor for such contracts.
Requires an agency with responsibility for a major system developed under Government contract, to include certain provisions relating to technical data in all production contracts for such system, in order to foster competitive procurement of supplies and services to maintain such systems. Provides, in accordance with specified Government procurement regulations, a waiver of such provisions if the contracting officer determines in writing that any such provision should not be applicable to the production contract or would not be in the best interests of the Government. Authorizes such agency to include a provision specifying the date after which the United States shall have the right to use or have used for any governmental purpose all technical data required to be delivered to the United States under such contract.
Requires an agency: (1) within one year after the enactment of this Act, to develop a plan for the management of such technical data received under contracts for the development, production, modification, or maintenance of major systems within its jurisdiction; and (2) within five years after the enactment of this Act, to complete implementation of such management plan and include in the system the available technical data for each major system within its jurisdiction. Specifies other matters the management plan shall address.
Requires the Comptroller General, not later than 18 months after the enactment of this Act, to transmit to the Congress a report evaluating the plans of specified Federal agencies for the management of technical data for major systems within their jurisdiction.
Requires a contracting officer to initiate a review of the validity of restrictions on the Government's right to use for its purposes technical data furnished under contract if it is determined such a review is warranted and that compliance with such restriction makes it impracticable to competitively procure the required component. Sets forth procedures for the certification of such restrictions.
Requires the Small Business Administration (SBA) to assign to each major procurement center a breakout procurement center representative who shall: (1) be an advocate both for the breakout of components for competitive procurement while maintaining the system and of supplies and services procured by the center; (2) participate in evaluating the maintenance of a major system during its service life and determine whether requirements are to be procured through other than free and open competition; (3) review procurement method codes that restrict competition among small businesses and to request reevaluation of such restrictions by agency personnel; (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 value-engineering proposals for review by procurement center personnel; and (8) review the procurement practices of the center and make recommendations to the Administrator.
Directs each agency to assign at least one technical advisor to assist each breakout procurement center representative.
Requires a contractor not to: (1) enter into any agreement with a subcontractor, under a contract for the purchase of supplies or services by an agency, that unreasonably restricts sales by such subcontractor directly to the United States of any item or process, including computer software, like those made,or services like those furnished, by such contractor under such contract (or any follow-on production contract); or (2) otherwise unreasonably restrict the ability of a subcontractor to make such sales to the United States.
Prohibits the 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.
Provides that a contract made by an agency for the purchase of spare or replacement parts offered for sale to the general public may not result in a cost to the United States that exceeds the lowest price at which such parts are made available by the contractor to commercial buyers. Requires a contractor, with respect to such contract, to certify that such price is the lowest commercial price for such items, or to submit a written statement specifying the difference between the lowest commercial price of the offeror for such items and the price offered, providing a justification for such difference. Exempts such contracts from such requirements if the contracting officer determines that the use of the lowest commercial price is not appropriate because of: (1) national security reasons; or (2) difference in quantities, quality, delivery, or other conditions of the contract from the commercial contract terms.
Requires the single system of Government-wide procurement regulations, not later than 90 days after the enactment of this Act, to be revised to include provisions specifying the manner in which each agency may negotiate prices for supplies procured from a contractor which does not produce the supplies and does not add value to the total value of such supplies. Requires such regulation to include provisions reasonably limiting the amount of overhead costs which such contractor may allocate to such supplies. Provides for the effective date of such revisions.
Requires each agency to procure supplies in such a quantity as: (1) will result in the total cost and unit cost most advantageous to the United States; and (2) does not exceed the quantity expected to be required by such agency. Requires each solicitation for a supply contract to include a clause requesting each contractor to state an opinion on whether the quantity of such supplies is economically advantageous to the United States and, if applicable, to recommend two quantities which would be more economically advantageous to the United States.
Requires an agency to establish procedures to ensure that personnel appraisal systems of such agency include emphasis on increased competition and achieve cost savings in areas relating to the contracts of such agency.
Amends specified Federal law relating to armed forces procurement provisions to make conforming changes with this Act.
Establishes the Office of the Competition Advocate General within each agency to: (1) review the purchasing and contracting activities of such agency; and (2) identify and report to the head of such agency the opportunities to achieve competition on the basis of price and other factors in the purchases and contracts of such agency, solicitations which include unnecessary detailed or restrictive statements of need which may reduce competition, and other conditions which restrict competition in procurement actions of such agency.
Directs the Competition Advocate General of an agency to: (1) review each proposed noncompetitive procurement involving more than $100,000 before a solicitation for the procurement is issued; and (2) recommend to the procurement officer specific acquisition actions as appropriate. Specifies instances when an agency need not delay the issuance of such solicitation. Provides a waiver for the submission of such solicitation.
Directs the Secretary of Defense, not later than 180 days after the enactment of this Act, to transmit to the Congress a plan to improve the Department of Defense computer capability to store and access data that is needed for the procurement of spare parts.
Specifies the tour of duty for an armed forces officer assigned as a program manager of a major defense acquisition program.
Sets forth the effective dates of this Act.