[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 555 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                 S. 555

 To amend the Federal Property and Administrative Services Act of 1949 
   to clarify procurement protest procedures, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               March 10 (legislative day, March 3), 1993

   Mr. Glenn (for himself, Mr. Pryor, and Mr. Cohen) introduced the 
 following bill; which was read twice and referred to the Committee on 
                          Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend the Federal Property and Administrative Services Act of 1949 
   to clarify procurement protest procedures, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Procurement Protest Clarification 
Act of 1993''.

SEC. 2. SHORT TITLES OF CERTAIN PROVISIONS OF FEDERAL PROPERTY AND 
              ADMINISTRATIVE SERVICES ACT OF 1949.

    (a) Automatic Data Processing Equipment Provisions.--Section 111 of 
the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 
759) is amended by adding at the end the following new subsection:
    ``(i) This section may be cited as the `Brooks Automatic Data 
Processing Act'.''.
    (b) Architectural and Engineering Services Provisions.--Title IX of 
the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 
541-544) is amended by adding at the end the following new section:

``SEC. 905. SHORT TITLE.

    ``This title may be cited as the `Brooks Architect-Engineers 
Act'.''.

SEC. 3. REVOCATION OF DELEGATION.

    Section 111(b)(3) of the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 759(b)(3)) is amended in the third 
sentence by striking out the period and inserting in lieu thereof the 
following: ``, whether before or after award of a contract. The 
authority of the Administrator to revoke a delegation after a contract 
award is limited to those circumstances where there is a finding of a 
violation of law or regulation.''.

SEC. 4. AUTHORITY OF BOARD.

    The first sentence of section 111(f)(1) of the Federal Property and 
Administrative Services Act of 1949 (40 U.S.C. 759(f)(1)) is amended to 
read as follows: ``Upon request of an interested party in connection 
with any procurement that is subject to this section (including any 
such procurement that is subject to delegation of procurement 
authority), the board of contract appeals of the General Services 
Administration (hereinafter in this subsection referred to as the 
`board') shall review, as provided in this subsection, any decision by 
a Federal agency that is alleged to violate a statute, a regulation, or 
the conditions of any delegation of procurement authority.''.

SEC. 5. DISMISSAL; AWARD OF COSTS.

    Section 111(f)(4) of the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 759(f)(4)) is amended by striking 
subparagraph (C) and inserting the following:
    ``(C) The board may dismiss a protest that the board determines--
            ``(i) is frivolous,
            ``(ii) has been brought in bad faith, or
            ``(iii) on its face does not state a valid basis for 
        protest.
    ``(D) If a party violates or fails to comply in good faith with, or 
causes a violation of or failure to comply in good faith with, an order 
or decision of the board, the board may construe the open facts of the 
case related to the violation against such party.''.

SEC. 6. ENTITLEMENT TO COSTS.

    Section 111(f)(5)(C) of the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 759(f)(5)(C)) is amended by striking 
out ``interested'' and inserting in lieu thereof ``prevailing''.

SEC. 7. DISMISSALS.

    Section 111(f)(5) of the Federal Property and Administrative 
Services Act of 1949 (40 U.S.C. 759(f)(5)) is amended by adding at the 
end the following new subparagraphs:
    ``(D) Any agreement that provides for or contemplates the dismissal 
of a protest, and involves the direct or indirect expenditure of 
appropriated funds, shall be submitted to the board and, subject to 
board protective order, made a part of the public record before 
dismissal of the protest. Where an agency is a party to a settlement 
agreement, the agreement submitted to the board shall be accompanied by 
a memorandum, signed by the contracting officer, describing in detail 
the procurement; the grounds for protest; the Government's position 
regarding the grounds for protest; the terms of the settlement; and the 
agency's position regarding the propriety of the award or proposed 
award of the contract at issue in the protest.
    ``(E) Payment of amounts due from an agency under subparagraph (C) 
or under the terms of a settlement agreement under subparagraph (D) 
shall be made from the appropriation made by section 1304 of title 31, 
United States Code, for the payment of judgments, and the agency shall 
reimburse that appropriation account out of funds available for the 
procurement.''.

SEC. 8. DEFINITIONS.

    (a) Protest.--Section 111(f)(9)(A) of the Federal Property and 
Administrative Services Act of 1949 (40 U.S.C. 759(f)(9)(A)) is amended 
to read as follows:
            ``(A) the term `protest' means a written objection by an 
        interested party--
                    ``(i) to a solicitation or other request by a 
                Federal agency for bids, proposals, or offers for a 
                contract for the procurement of property or services;
                    ``(ii) to the cancellation of such a solicitation 
                or other request;
                    ``(iii) to an award or proposed award of such a 
                contract; or
                    ``(iv) to a termination or cancellation of an award 
                of such a contract, if that termination or cancellation 
                was in whole or in part based on actual or alleged 
                improprieties concerning the award of the contract;''.
    (b) Interested Party.--(1) Section 111(f)(9)(B) of the Federal 
Property and Administrative Services Act of 1949 (40 U.S.C. 
759(f)(9)(B)) is amended to read as follows:
            ``(B) the term `interested party' means--
                    ``(i) with respect to a contract or proposed 
                contract described in subparagraph (A), an actual or 
                prospective bidder or offeror for that particular 
                contract or proposed contract, including a contract 
                awardee as intervenor, whose economic interest would be 
                affected, as determined by the board--
                            ``(I) by the action which is the subject of 
                        the protest; and
                            ``(II) by any relief that the board may 
                        order; or
                    ``(ii) with respect to a solicitation or other 
                request by a Federal agency for bids, proposals or 
                offers described in subparagraph (A), a vendor whose 
                economic interest would be affected, as determined by 
                the board, by specifications in the solicitation or 
                other request for bids, proposals, or offers that are 
                alleged to be restrictive of competition; and''.
    (2)(A) Section 111(f)(9)(B)(ii) of the Federal Property and 
Administrative Services Act of 1949, as added by paragraph (1) of this 
subsection (relating to the definition of an interested party) is 
amended to read as follows:
            ``(ii) with respect to a solicitation or other request by a 
        Federal agency for bids, proposals or offers described in 
        subparagraph (A), a prospective bidder or offeror whose 
        economic interest would be affected, as determined by the 
        board, by specifications in the solicitation or other requests 
        for bids, proposals, or offers that are alleged to be 
        restrictive of competition; and''.
    (B) The amendment made by subparagraph (A) shall be effective on 
and after the date occurring 3 years after the date of the enactment of 
this Act.
    (3) No later than 42 months after the date of the enactment of this 
Act, the Comptroller General shall conduct a study and submit a report 
to the Committee on Governmental Affairs of the Senate and the 
Committee of Government Operations of the House of Representatives on 
the experiences of the Board of Contract Appeals of the General 
Services Administration in applying the provisions of section 
111(f)(9)(B)(ii) of the Federal Property and Administrative Services 
Act of 1949. The comments of such board shall be included in such 
report.
    (c) Prevailing Party.--Section 111(f)(9) of the Federal Property 
and Administrative Services Act of 1949 is further amended by adding at 
the end thereof the following new subparagraph:
            ``(C) the term `prevailing party' means a party which 
        succeeds in demonstrating that a challenged agency action 
        violates a statute or regulation or the conditions of any 
        delegation of procurement authority issued pursuant to this 
        section, thereby resulting in a determination by the board 
        under paragraph (5)(B).''.

SEC. 9. OVERSIGHT OF ACQUISITION OF AUTOMATIC DATA PROCESSING EQUIPMENT 
              BY FEDERAL AGENCIES.

    Section 111 of the Federal Property and Administrative Services Act 
of 1949 (40 U.S.C. 759), as amended by this Act, is further amended by 
inserting after subsection (g) the following new subsection:
    ``(h)(1) The Administrator shall collect and compile data regarding 
the procurement of automatic data processing equipment under this 
section. That data shall include, at a minimum, with regard to each 
procurement--
            ``(A) the procuring agency;
            ``(B) the contractor;
            ``(C) the automatic data processing equipment and services 
        procured;
            ``(D) the manufacturer of the equipment procured;
            ``(E) the amount of the contract to the extent that the 
        amount is not proprietary information;
            ``(F) the type of contract used;
            ``(G) the extent of competition for award;
            ``(H) compatibility restrictions;
            ``(I) significant modifications of the contract; and
            ``(J) contract price to the extent that the price is not 
        proprietary information.
    ``(2) The head of each Federal agency shall report to the 
Administrator in accordance with regulations issued by the 
Administrator all information required to be compiled by the 
Administrator under paragraph (1).
    ``(3) The Administrator shall--
            ``(A) carry out a systematic review and conduct periodic 
        audits of information received under this subsection;
            ``(B) use such information as appropriate to determine the 
        compliance of Federal agencies with the requirements of this 
        section; and
            ``(C) have the option to suspend the delegation to an 
        agency of authority to lease and purchase automatic data 
        processing equipment upon any failure by the head of the agency 
        to report to the Administrator in accordance with this 
        subsection.''.

SEC. 10. POST-AWARD DEBRIEFINGS.

    (a) Amendment to Office of Federal Procurement Policy Act.--The 
Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.) is 
amended by adding at the end thereof the following new section:

``SEC. 29. POST-AWARD DEBRIEFINGS.

    ``(a) Debriefing.--When a contract is awarded on a basis other than 
price alone, unsuccessful offerors, upon their written request, shall 
be debriefed and furnished the basis for the selection decision and 
contract award. Unsuccessful offerors shall request such debriefing 
within 10 days after the contract award. Agencies shall debrief such 
offerors within 10 days of such a request. Where such an offeror 
requests such a debriefing, the time period for a protesting party to 
obtain a suspension of the Administrator's procurement authority or 
delegation of procurement authority under section 111(f)(2) of the 
Federal Property and Administrative Services Act of 1949 (40 U.S.C. 
759(f)(2)) shall be deemed to commence with the conduct of the 
debriefing.
    ``(b) Information Provided.--A debriefing under subsection (a) 
shall provide to the offeror requesting the debriefing--
            ``(1) the Government's evaluation of the significant weak 
        or deficient factors in the offeror's proposal;
            ``(2) the overall evaluated cost of the awardee and of the 
        debriefed offeror;
            ``(3) the overall ranking of all offerors, and the total 
        technical and cost scores of all offerors;
            ``(4) a synopsis of the rationale for the award;
            ``(5) in the case of a proposal that incorporates 
        commercially available equipment, the make and model of 
        commercially available equipment incorporated in the proposal 
        of the awardee; and
            ``(6) reasonable responses to questions posed by the 
        debriefed offeror as to whether source selection procedures set 
        forth in the solicitation, the source selection plan, 
        applicable regulations, and other applicable authorities were 
        followed by the Government.
    ``(c) Information Not Provided.--A debriefing under subsection (a) 
shall not make point-by-point comparisons with other offerors' 
proposals and shall not disclose any information that is not subject to 
disclosure under section 552 of title 5, United States Code, including 
information relating to--
            ``(1) trade secrets;
            ``(2) privileged or confidential manufacturing processes 
        and techniques; and
            ``(3) commercial and financial information that is 
        privileged or confidential, including cost breakdowns, profit, 
        indirect cost rates, and similar information.
    ``(d) Notification of Disclosure.--Each solicitation shall notify 
participating offerors that the categories of information described in 
subsection (b) may be disclosed by the Government in post-award 
debriefings.
    ``(e) Post-Award Information.--If, within 12 months after an award, 
as a result of a successful procurement protest or otherwise, the 
agency seeks to fulfill the requirement under the awarded contract 
through either a new round of proposals or best and final offers from 
among the original offerors, the agency shall provide to each such 
offeror--
            ``(1) all information provided in debriefings under this 
        section regarding the winning vendor's proposal; and
            ``(2) all comparable information with respect to those 
        offerors.
    ``(f) Contract File.--The contracting officer shall include a 
summary of the debriefing in the contract file.''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect 270 days after the date of the enactment of this Act.

SEC. 11. EFFECTIVE DATE.

    Except as otherwise provided in this Act, the amendments made by 
this Act shall take effect 90 days after the date of the enactment of 
this Act.

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