[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4066 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
2d Session
S. 4066
To improve Federal technology procurement, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 22, 2024
Mr. Peters (for himself and Mr. Cruz) introduced the following bill;
which was read twice and referred to the Committee on Homeland Security
and Governmental Affairs
_______________________________________________________________________
A BILL
To improve Federal technology procurement, 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 Improvement in Technology
Procurement Act'' or the ``FIT Procurement Act''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The Government Accountability Office (GAO) has
conducted a trend analysis of Government-wide contracting for
each of the last several fiscal years. These analyses show that
the Federal dollars obligated through contracts has been
steadily increasing.
(2) Contract spending accounts for more than 80 percent of
the Federal information technology budget.
(3) Spending on information security, software, cloud
computing, data center solutions and services, software as a
service, and artificial intelligence technologies is projected
to grow significantly.
(4) Rapid technological developments and increased
Government demand create a need for a Federal acquisition
workforce with an understanding of technology and related
procurement considerations.
(5) Federal agencies are challenged to shorten the
procurement cycle to meet agency technology requirements.
Technology acquired through procurements that take years from
requirements development to implementation may be obsolete by
the time it is fielded.
(6) While Federal contracting dollars are increasing year
over year, and the number of new business applications filed is
at an all-time high, the number of Federal contractors
receiving contract awards is shrinking. This trend could impair
the Federal Government's access to innovative commercial
technologies.
SEC. 3. DEFINITIONS.
In this Act:
(1) Acquisition workforce.--The term ``acquisition
workforce'' means employees of an executive agency who are
responsible for procurement, contracting, program or project
management that involves the performance of acquisition-related
functions, or others as designated by the Chief Acquisition
Officer, senior procurement executive, or head of the
contracting activity.
(2) Administrator.--The term ``Administrator'' means the
Administrator for Federal Procurement Policy.
(3) Cross-functional.--The term ``cross-functional'' means
a structure in which individuals with different functional
expertise or from different areas of an organization work
together as a team.
(4) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 133 of title 41, United
States Code.
(5) Experiential learning.--The term ``experiential
learning'' means on-the-job experiences or simulations that
serve to enhance workforce professional skills.
(6) Information and communications technology.--The term
``information and communications technology''--
(A) has the meaning given the term in section 4713
of title 41, United States Code; and
(B) includes information and communications
technologies covered by definitions contained in the
Federal Acquisition Regulation, including definitions
added after the date of the enactment of this Act by
the Federal Acquisition Regulatory Council pursuant to
notice and comment.
(7) Relevant committees of congress.--The term ``relevant
committees of Congress'' means the Committee on Homeland
Security and Governmental Affairs of the Senate and the
Committee on Oversight and Accountability of the House of
Representatives.
SEC. 4. ACQUISITION WORKFORCE.
(a) Experiential Learning.--Not later than 18 months after the date
of the enactment of this Act, the Federal Acquisition Institute shall
incorporate experiential learning into the Federal Credentials Program,
the Federal Acquisition Certification-Contracting Officer's
Representative (FAC-COR) Program, and the Federal Acquisition
Certification for Program and Project Managers (FAC-P/PM) Program, or
any successor programs.
(b) Training on Information and Communications Technology
Acquisition.--
(1) In general.--Not later than 18 months after the date of
the enactment of this Act, the Federal Acquisition Institute,
in coordination with the Administrator, the Administrator of
General Services, the Federal Chief Information Officer, the
Chief Information Officers Council, and the United States
Digital Service, and in consultation with others as determined
to be appropriate by the Director of the Federal Acquisition
Institute, shall develop and implement or otherwise provide a
cross-functional information and communications technology
acquisition training program for acquisition workforce members
involved in acquiring information and communications
technology. The training shall--
(A) include learning objectives related to market
research, communicating with industry and industry
perspectives on the procurement process, including how
investment decisions are impacted by Government
communication and engagement, developing requirements,
acquisition planning, best practices for developing and
executing outcome-based contracts, and source selection
strategy, evaluating proposals, and awarding and
administering contracts for information and
communications technology;
(B) include learning objectives that provide a
basic understanding of key technologies Federal
agencies need, such as cloud computing, artificial
intelligence and artificial intelligence-enabled
applications, and cybersecurity solutions;
(C) include learning objectives that encourage the
use of commercial or commercially available off-the-
shelf (COTS) technologies to the greatest extent
practicable;
(D) include case studies of lessons learned from
Federal information and communications technology
procurements and contracts, and related matters as
deemed relevant by the Director of the Federal
Acquisition Institute;
(E) include experiential learning opportunities,
and opportunities to practice acquisition teaming
involving collaboration of team members with varied
relevant domain expertise to complete acquisition-
related tasks, including tasks with accelerated
timelines;
(F) include continuous learning recommendations and
resources to keep the skills of acquisition workforce
members current, including tools that help adopt or
adapt the use of innovative acquisition practices or
other flexible business practices commonly used in
commercial buys;
(G) be made available to acquisition workforce
members designated by a Chief Acquisition Officer,
senior procurement executive, or head of the
contracting activity to participate in the training
program; and
(H) inform executive agencies about streamlined and
alternative procurement methods for procurement of
information and communications technology, including--
(i) simplified procedures for certain
commercial products and commercial services in
accordance with subpart 13.5 of the Federal
Acquisition Regulation, prize competitions
under the America COMPETES Reauthorization Act
of 2010 (Public Law 111-358), commercial
solutions opening authorities as provided in
section 5 of this Act or under separate
authority, competitive programs that encourage
businesses to engage in Federal research or
research and development with the potential for
commercialization, and joint venture
partnerships;
(ii) innovative procurement techniques
designed to streamline the procurement process
and lower barriers to entry, such as use of
oral presentations and product demonstrations
instead of lengthy written proposals,
appropriately leveraging performance and
outcomes-based contracting, and other
techniques discussed on the Periodic Table of
Acquisition Innovations or other similar
successor knowledge management portals; and
(iii) information on appropriate use,
examples and templates, and any other
information determined relevant by the
Administrator to assist contracting officers
and other members of the acquisition workforce
in using the procedures described in clauses
(i) and (ii).
(2) Report.--Not later than 2 years after the date of the
enactment of this Act, the Director of the Federal Acquisition
Institute shall provide to the relevant committees of Congress,
the Chief Acquisition Officers Council, and the Chief
Information Officers Council--
(A) a report on the Director's progress in
developing and implementing or otherwise providing the
information and communications technology acquisition
training described in paragraph (1); and
(B) a list of any congressionally mandated
acquisition training that the Director determines to be
outdated or no longer necessary for other reasons.
(3) Duration.--The training program shall be updated as
appropriate as technology advances, but at least every 2 years
after implementation, and offered for a minimum of 7 years
following the date of implementation of the training program.
(c) Acquisition Workforce Training Fund.--
(1) Finding.--Congress finds that the Acquisition Workforce
Training Fund should be utilized in order to ensure that the
Federal acquisition workforce--
(A) continues to adapt to fundamental changes in
Federal Government acquisition of property and
services; and
(B) acquires new skills and knowledge to enable it
to contribute effectively in the changing environment
of the 21st century.
(2) Increased credits to fund.--Section 1703(i)(3) of title
41, United States Code, is amended by striking ``Five percent''
and inserting ``Seven and a half percent''.
(d) Harmonization of Acquisition Workforce Training Requirements.--
The responsibility for the requirement in subsection (b)(1) of section
2 of the AI Training Act (Public Law 117-207; 41 U.S.C. 1703 note) is
reassigned from the Director of the Office of Management and Budget to
the Administrator of General Services.
SEC. 5. INNOVATIVE PROCUREMENT METHODS.
(a) Expansion of Commercial Solutions Opening Authority.--Section
880 of the National Defense Authorization Act for Fiscal Year 2017
(Public Law 114-328; 41 U.S.C. 3301 note) is amended--
(1) in the section heading, by striking ``pilot programs
for authority to acquire innovative commercial products'' and
inserting ``programs for authority to acquire innovative
commercial products and commercial services'';
(2) in subsection (a)--
(A) in paragraph (1), by inserting ``and commercial
services'' after ``commercial products'';
(B) in paragraph (2), by adding at the end the
following new subparagraph:
``(C) The head of an executive agency approved for
the program, on a temporary or permanent basis, by the
Director of the Office of Management and Budget.''; and
(C) in paragraph (3), by adding at the end the
following new subparagraph:
``(C) An executive agency approved for the program
by the Director of the Office of Management and
Budget.'';
(3) by amending subsection (d) to read as follows:
``(d) Guidance.--The head of an agency shall issue guidance for the
implementation of the program under this section within that agency.
Such guidance shall be issued in consultation with the Office of
Management and Budget and shall be posted for access by the public. The
guidance shall also include requirements for each general solicitation
to be posted publicly through a means that provides access to the
notice of general solicitation through the System for Award Management
or subsequent Government-wide point of entry, with classified
solicitations posted to the appropriate Government portal.'';
(4) by amending subsection (e) to read as follows:
``(e) Reporting and Data Collection.--The head of an agency shall
report information on contracts made using procedures under this
section to the Office of Management and Budget as determined by the
Director of the Office of Management and Budget. The Administrator for
Federal Procurement Policy shall collect and analyze data on the use of
the authority under this section for the purposes of--
``(1) developing and sharing best practices;
``(2) gathering information on the implementation of the
authority and related policy issues; and
``(3) informing the Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Accountability of the House of Representatives on
the use of the authority.'';
(5) in subsection (f)--
(A) in paragraph (1)(B), by striking ``; and'' and
inserting a semicolon;
(B) by redesignating paragraph (2) as paragraph
(3); and
(C) by inserting after paragraph (1) the following
new paragraph:
``(2) the term `executive agency' has the meaning given the
term in section 133 of title 41, United States Code; and'';
(6) by striking subsection (g); and
(7) by striking ``pilot'' each place it appears.
(b) Clerical Amendment.--The table of contents in section 2(b) of
such Act and the table of contents preceding subtitle A of title VIII
of such Act are each amended by striking the item relating to section
880 and inserting the following new item:
``Sec. 880. Programs for authority to acquire innovative commercial
products, commercial technologies, and
commercial services using general
solicitation competitive procedures.''.
(c) Increase in Simplified Acquisition Threshold.--
(1) Finding.--Congress finds that the threshold under which
agencies may use simplified acquisition procedures to reduce
costs, improve opportunities for qualified businesses, promote
efficiency and economy, and avoid unnecessary burdens for
agencies and their contractors should be updated.
(2) Amendment.--
(A) In general.--Section 134 of title 41, United
States Code, is amended by striking ``$250,000'' and
inserting ``$500,000''.
(B) Authority to apply provisions below the
threshold.--The Federal Acquisition Regulatory Council
may apply a provision that would not otherwise be
applicable below the threshold as amended by
subparagraph (A) upon a written determination that it
would not be in the best interest of the Federal
Government to exempt contracts and subcontracts in
amounts not greater than such amended threshold from
such provision, such as for national security reasons.
(d) Multiple Award Schedule Program Competitive Procedures.--
(1) Finding.--Congress finds that the competition standard
established by the Administrator of General Services for the
multiple award schedule program of the General Services
Administration should be updated and made consistent with the
competition standard for other procurement methods, such as
simplified acquisitions and negotiated procurements. The term
``best value'' is defined in the Federal Acquisition Regulation
as meaning the expected outcome of an acquisition that, in the
Government's estimation, provides the greatest overall benefit
in response to the requirement.
(2) Amendments.--
(A) Civilian contracts.--Section 152(3)(B) of title
41, United States Code, is amended to read as follows:
``(B) contracts and orders under such program
result in the award of best value products and services
for the Federal Government;''.
(B) Defense contracts.--Section 3012(3)(B) of title
10, United States Code, is amended to read as follows:
``(B) contracts and orders under such program
result in the award of best value products and services
for the Federal Government;''.
(3) Guidance.--The Federal Acquisition Regulatory Council
shall provide guidance to Federal agencies on appropriate use
of the best value competition standard for the multiple award
schedule program as part of the implementing regulations
promulgated in connection with the amendments made by paragraph
(2).
(e) Advances for Commercial Technology Subscriptions and Tenancy.--
(1) Finding.--Congress finds that the authority to make
advance payments should be updated for purposes of enabling the
most cost-effective acquisition of cloud computing, data center
solutions and services, and other information and
communications technology acquired on a subscription,
reservation, or tenancy basis.
(2) Authority to pay advances.--Section 3324(d) of title
31, United States Code, is amended--
(A) in paragraph (1)(C), by striking ``; and'' and
inserting a semicolon;
(B) in paragraph (2)--
(i) by inserting ``or commercially
available content'' after ``publication''; and
(ii) by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following new
paragraph:
``(3) charges for information and communications technology
subscriptions, reservations, or tenancy, which means the
sharing of computing resources in a private or public
environment, including cloud environments, for which the
ordering agency defines appropriate access and security
standards.''.
SEC. 6. INCREASING COMPETITION IN FEDERAL CONTRACTING.
(a) Use of Past Performance.--Not later than 1 year after the date
of the enactment of this Act, the Administrator shall issue guidance,
including examples and templates where appropriate, on--
(1) when a wider range of projects, such as commercial or
non-government, as well as Government projects, should be
accepted as relevant past performance, in order to have
increased competition among eligible firms with capability to
perform a requirement, such as a requirement without much
precedent;
(2) a means by which an agency may validate non-government
past performance references, such as by requiring an official
of an entity providing past performance references to attest to
their authenticity and by providing verifiable contact
information for the references; and
(3) use of alternative evaluation methods other than past
performance that may be appropriate for a requirement without
much precedent, such as demonstrations and testing of
technologies as part of the proposal process.
(b) Ensuring a Capable Federal Vendor Base.--
(1) Working group.--Not later than 90 days after the date
of the enactment of this Act, the Administrator shall convene a
working group or an appropriate existing body (in this section
referred to as the ``working group''), to make recommendations
to address the Federal Government's shrinking vendor base and
related matters.
(2) Membership.--The working group convened under paragraph
(1) shall be chaired by the Administrator or a designee of the
Administrator and include, at a minimum, representatives from
the following departments and agencies:
(A) The General Services Administration.
(B) The Department of Homeland Security.
(C) The Department of Commerce.
(D) The Department of Defense.
(E) The Department of Health and Human Services.
(F) The Small Business Administration.
(G) Any other agencies or organizations as
determined appropriate by the Administrator.
(3) Consultation.--The working group shall obtain input
from the public, including from the APEX Accelerators program
(formerly known as Procurement Technical Assistance Center
(PTAC) network) and other contractor representatives, to
identify Federal procurement policies and regulations that are
obsolete, overly burdensome or restrictive, not adequately
harmonized, or otherwise serve to create barriers to
participation in Federal contracting or unnecessarily increase
bid and proposal costs.
(4) Examination of actions.--The working group shall
consider the input obtained under paragraph (3) and any other
information determined to be relevant by the working group to
identify legislative, regulatory, and other actions to remove
barriers to qualified vendors in the procurement process, in
order to build the Federal vendor base, increase competition,
and address related matters.
(5) Implementation.--Not later than 2 years after the date
of the enactment of this Act, the Administrator shall, in
consultation with the Federal Acquisition Regulatory Council,
the Chief Acquisition Officers Council, the working group, and
other agencies as appropriate, implement the regulatory and
other non-legislative actions identified under paragraph (4),
as determined necessary by the Administrator, to remove
barriers to entry for those seeking to participate in Federal
Government procurement.
(6) Briefing.--Not later than 2 years after the date of the
enactment of this Act, the Administrator shall brief the
relevant committees of Congress on the legislative actions
identified under paragraph (4), and the actions implemented
under paragraph (5).
SEC. 7. INCENTIVIZING EMPLOYEE STOCK OWNERSHIP PLANS FOR BUSINESS
GROWTH.
(a) Pilot Program To Use Noncompetitive Procedures for Certain
Follow-On Contracts to Qualified Businesses Wholly-Owned Through an
Employee Stock Ownership Plan (ESOP).--
(1) Establishment.--The Administrator may expand the pilot
program authorized by section 874 of the National Defense
Authorization Act for Fiscal Year 2022 (Public Law 117-81; 10
U.S.C. 3204 note) for Government-wide use, including by
coordinating as necessary with the Federal Acquisition
Regulatory Council to make related amendments to the Federal
Acquisition Regulation.
(2) Follow-on contracts.--Notwithstanding the requirements
of section 3301 of title 41, United States Code, for purposes
of carrying out a Government-wide ESOP pilot program
established under paragraph (1), the products or services to be
procured by an executive agency under a follow-on contract with
a qualified business wholly-owned through an ESOP for the
continued development, production, or provision of products or
services that are the same as or substantially similar to the
products or services procured under a prior contract may be
procured through procedures other than competitive procedures
if the performance of the qualified business on the prior
contract was rated as satisfactory (or the equivalent) or
better.
(3) Limitation.--A qualified business wholly-owned through
an ESOP may have a single opportunity for award of a sole-
source follow-on contract under this subsection, unless the
senior procurement executive of the executive agency awarding
the contract approves a waiver of such limitation.
(b) Verification and Reporting of Qualified Businesses Wholly-Owned
Through an Employee Stock Ownership Plan.--Under a pilot program
established under this section, the Administrator shall establish
procedures--
(1) for businesses to verify status as a qualified business
wholly-owned through an ESOP for the purposes of this section
by using existing Federal reporting mechanisms;
(2) for a qualified businesses wholly-owned through an ESOP
to certify that not more than 50 percent of the amount paid
under the contract will be expended on subcontracts, including
similarly situated ESOPs if determined appropriate by the
Administrator, subject to such necessary and reasonable waivers
as the implementing guidance or regulations may prescribe; and
(3) to record and provide to relevant committees of
Congress upon request information on each follow-on contract
awarded under authority of this subsection, including details
relevant to the nature of such contract and the qualified
business wholly-owned through an ESOP that received the
contract.
(c) Sunset.--A pilot program established under this section shall
expire on the date that is 5 years after the date of the enactment of
this Act.
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