[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1038 Introduced in House (IH)]







104th CONGRESS
  1st Session
                                H. R. 1038

     To revise and streamline the acquisition laws of the Federal 
                  Government, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 24, 1995

 Mr. Clinger (for himself, Mr. Spence, and Mr. Gilman) introduced the 
   following bill; which was referred to the Committee on Government 
 Reform and Oversight and, in addition, to the Committees on National 
 Security, International Relations, and the Judiciary, for a period to 
      be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL


 
     To revise and streamline the acquisition laws of the Federal 
                  Government, 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 ``Federal Acquisition Reform Act of 
1995''.

SEC. 2. PROCUREMENT INTEGRITY AMENDMENT.

    (a) Amendment of Procurement Integrity Provision.--Section 27 of 
the Office of Federal Procurement Policy Act (41 U.S.C. 423) is amended 
to read as follows:

``SEC. 27. RESTRICTIONS ON DISCLOSING AND OBTAINING CONTRACTOR BID OR 
              PROPOSAL INFORMATION OR SOURCE SELECTION INFORMATION.

    ``(a) Prohibition on Disclosing Procurement Information.--(1) A 
person described in paragraph (2) shall not, other than as provided by 
law, knowingly and willfully disclose contractor bid or proposal 
information or source selection information before the award of a 
Federal agency procurement contract to which the information relates.
    ``(2) Paragraph (1) applies to any person who--
            ``(A) is a present or former officer or employee of the 
        United States, or a person who is acting or has acted for or on 
        behalf of, or who is advising or has advised the United States 
        with respect to, a Federal agency procurement; and
            ``(B) by virtue of that office, employment, or relationship 
        has or had access to contractor bid or proposal information or 
        source selection information.
    ``(b) Prohibition on Obtaining Procurement Information.--A person 
shall not, other than as provided by law, knowingly and willfully 
obtain contractor bid or proposal information or source selection 
information before the award of a Federal agency procurement contract 
to which the information relates.
    ``(c) Prohibition on Disclosing or Obtaining Procurement 
Information in Connection With a Protest.--(1) A person shall not, 
other than as provided by law, knowingly and willfully violate the 
terms of a protective order described in paragraph (2) by disclosing or 
obtaining contractor bid or proposal information or source selection 
information related to the procurement contract concerned.
    ``(2) Paragraph (1) applies to any protective order issued by the 
Comptroller General or the board of contract appeals of the General 
Services Administration in connection with a protest against the award 
or proposed award of a Federal agency procurement contract.
    ``(d) Penalties and Administrative Actions.--
            ``(1) Criminal penalties.--
                    ``(A) Whoever engages in conduct constituting an 
                offense under subsection (a), (b), or (c) shall be 
                imprisoned for not more than one year or fined as 
                provided under title 18, United States Code, or both.
                    ``(B) Whoever engages in conduct constituting an 
                offense under subsection (a), (b), or (c) for the 
                purpose of either--
                            ``(i) exchanging the information covered by 
                        such subsection for anything of value, or
                            ``(ii) obtaining or giving anyone a 
                        competitive advantage in the award of a Federal 
                        agency procurement contract,

                shall be imprisoned for not more than five years or 
                fined as provided under title 18, United States Code, 
                or both.
            ``(2) Civil penalties.--The Attorney General may bring a 
        civil action in the appropriate United States district court 
        against any person who engages in conduct constituting an 
        offense under subsection (a), (b), or (c). Upon proof of such 
        conduct by a preponderance of the evidence, the person is 
        subject to a civil penalty. An individual who engages in such 
        conduct is subject to a civil penalty of not more than $50,000 
        for each violation plus twice the amount of compensation which 
        the individual received or offered for the prohibited conduct. 
        An organization that engages in such conduct is subject to a 
        civil penalty of not more than $500,000 for each violation plus 
        twice the amount of compensation which the organization 
        received or offered for the prohibited conduct.
            ``(3) Administrative actions.--(A) If a Federal agency 
        receives information that a contractor or a person has engaged 
        in conduct constituting an offense under subsection (a), (b), 
        or (c), the Federal agency shall consider taking one or more of 
        the following actions, as appropriate:
                    ``(i) Cancellation of the Federal agency 
                procurement, if a contract has not yet been awarded.
                    ``(ii) Rescission of a contract with respect to 
                which--
                            ``(I) the contractor or someone acting for 
                        the contractor has been convicted for an 
                        offense under subsection (a), (b), or (c), or
                            ``(II) the head of the agency that awarded 
                        the contract has determined, based upon clear 
                        and convincing evidence, that the contractor or 
                        someone acting for the contractor has engaged 
                        in conduct constituting such an offense.
                    ``(iii) Initiation of suspension or debarment 
                proceedings for the protection of the Government in 
                accordance with procedures in the Federal Acquisition 
                Regulation.
                    ``(iv) Initiation of adverse personnel action, 
                pursuant to the procedures in chapter 75 of title 5, 
                United States Code, or other applicable law or 
                regulation.
            ``(B) If a Federal agency rescinds a contract pursuant to 
        subparagraph (A)(ii), the United States is entitled to recover, 
        in addition to any penalty prescribed by law, the amount 
        expended under the contract.
            ``(C) For purposes of any suspension or debarment 
        proceedings initiated pursuant to subparagraph (A)(iii), 
        engaging in conduct constituting an offense under subsection 
        (a), (b), or (c) affects the present responsibility of a 
        Government contractor or subcontractor.
    ``(e) Definitions.--As used in this section:
            ``(1) The term `contractor bid or proposal information' 
        means any of the following information submitted to a Federal 
        agency as part of or in connection with a bid or proposal to 
        enter into a Federal agency procurement contract, if that 
        information has not been previously made available to the 
        public or disclosed publicly:
                    ``(A) Cost or pricing data (as defined by section 
                2306a(i) of title 10, United States Code, with respect 
to procurements subject to that section, and section 304A(i) of Federal 
Property and Administrative Services Act of 1949 (41 U.S.C. 254b(i), 
with respect to procurements subject to that section).
                    ``(B) Indirect costs and direct labor rates.
                    ``(C) Proprietary information about manufacturing 
                processes, operations, or techniques marked by the 
                contractor in accordance with applicable law or 
                regulation.
                    ``(D) Information marked by the contractor as 
                `contractor bid or proposal information', in accordance 
                with applicable law or regulation.
            ``(2) The term `source selection information' means any of 
        the following information prepared for use by a Federal agency 
        for the purpose of evaluating a bid or proposal to enter into a 
        Federal agency procurement contract, if that information has 
        not been previously made available to the public or disclosed 
        publicly:
                    ``(A) Bid prices submitted in response to a Federal 
                agency solicitation for sealed bids, or lists of those 
                bid prices before public bid opening.
                    ``(B) Proposed costs or prices submitted in 
                response to a Federal agency solicitation, or lists of 
                those proposed costs or prices.
                    ``(C) Source selection plans.
                    ``(D) Technical evaluation plans.
                    ``(E) Technical evaluations of proposals.
                    ``(F) Cost or price evaluations of proposals.
                    ``(G) Competitive range determinations that 
                identify proposals that have a reasonable chance of 
                being selected for award of a contract.
                    ``(H) Rankings of bids, proposals, or competitors.
                    ``(I) The reports and evaluations of source 
                selection panels, boards, or advisory councils.
                    ``(J) Other information marked as `source selection 
                information' based on a case-by-case determination by 
                the head of the agency, his designee, or the 
                contracting officer that its disclosure would 
                jeopardize the integrity or successful completion of 
                the Federal agency procurement to which the information 
                relates.
            ``(3) The term `Federal agency' has the meaning provided 
        such term in section 3 of the Federal Property and 
        Administrative Services Act of 1949 (40 U.S.C. 472).
            ``(4) The term `Federal agency procurement' means the 
        acquisition (by using competitive procedures and awarding a 
        contract) of goods or services (including construction) from 
        non-Federal sources by a Federal agency using appropriated 
        funds.
            ``(5) The term `contracting officer' means a person who, by 
        appointment in accordance with applicable regulations, has the 
        authority to enter into a Federal agency procurement contract 
        on behalf of the Government and to make determinations and 
        findings with respect to such a contract.
            ``(6) The term `protest' means a written objection by an 
        interested party to the award or proposed award of a Federal 
        agency procurement contract, pursuant to section 111 of the 
        Federal Property and Administrative Services Act of 1949 (40 
        U.S.C. 759) or subchapter V of chapter 35 of title 31, United 
        States Code.
    ``(f) Limitation on Protests.--No person may file a protest against 
the award or proposed award of a Federal agency procurement contract 
alleging an offense under subsection (a), (b), or (c), of this section, 
nor may the Comptroller General or the board of contract appeals of the 
General Services Administration consider such an allegation in deciding 
a protest, unless that person reported to the Federal agency 
responsible for the procurement information that the person believed 
constituted evidence of the offense no later than 14 days after the 
person first discovered the possible offense.
    ``(g) Savings Provisions.--This section does not--
            ``(1) restrict the disclosure of information to, or its 
        receipt by, any person or class of persons authorized, in 
        accordance with applicable agency regulations or procedures, to 
        receive that information;
            ``(2) restrict a contractor from disclosing its own bid or 
        proposal information or the recipient from receiving that 
        information;
            ``(3) restrict the disclosure or receipt of information 
        relating to a Federal agency procurement after it has been 
        canceled by the Federal agency before contract award unless the 
        Federal agency plans to resume the procurement;
            ``(4) authorize the withholding of information from, nor 
        restrict its receipt by, Congress, a committee or subcommittee 
        of Congress, the Comptroller General, a Federal agency, or an 
        inspector general of a Federal agency;
            ``(5) authorize the withholding of information from, nor 
        restrict its receipt by, any board of contract appeals of a 
        Federal agency or the Comptroller General in the course of a 
        protest against the award or proposed award of a Federal agency 
        procurement contract; or
            ``(6) limit the applicability of any requirements, 
        sanctions, contract penalties, and remedies established under 
        any other law or regulation.''.
    (b) Regulations.--(1) Proposed revisions to the Federal Acquisition 
Regulation to implement this section shall be published in the Federal 
Register not later than 60 days after the date of the enactment of this 
Act.
    (2) The proposed regulations described in paragraph (1) shall be 
made available for public comment for a period of not less than 60 
days.
    (3) Final regulations shall be published in the Federal Register 
not later than 150 days after the date of the enactment of this Act.
    (c) Repeals.--(1) The following provisions of law are repealed:
            (A) Sections 2397, 2397a, 2397b, and 2397c of title 10, 
        United States Code.
            (B) Section 281 of title 18, United States Code.
            (C) Subsection (c) of section 32 of the Office of Federal 
        Procurement Policy Act (41 U.S.C. 428).
    (2)(A) The table of sections at the beginning of chapter 141 of 
title 10, United States Code, is amended by striking the items relating 
to sections 2397, 2397a, 2397b, and 2397c.
    (B) The table of sections at the beginning of chapter 15 of title 
18, United States Code, is amended by striking the item relating to 
section 281.
    (C) Section 32 of the Office of Federal Procurement Policy Act (41 
U.S.C. 428) is amended by redesignating subsections (d), (e), (f), and 
(g) as subsections (c), (d), (e), and (f), respectively.

SEC. 3. INTERNATIONAL COMPETITIVENESS.

    (a) Repeal of Provision Relating to Research, Development, and 
Production Costs.--Section 21(e) of the Arms Export Control Act (22 
U.S.C. 2761(e)) is amended--
            (1) by inserting ``and'' after the semicolon at the end of 
        paragraph (1)(A);
            (2) by striking out subparagraph (B) of paragraph (1);
            (3) by redesignating subparagraph (C) of paragraph (1) as 
        subparagraph (B);
            (4) by striking out paragraph (2); and
            (5) by redesignating paragraph (3) as paragraph (2).
    (b) Effective Date.--The amendments made by subsection (a) shall be 
effective with respect to sales agreements pursuant to sections 21 and 
22 of the Arms Export Control Act (22 U.S.C. 2761 and 2762) entered 
into on or after the date of the enactment of this Act.
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