[Congressional Record Volume 150, Number 78 (Monday, June 7, 2004)]
[Senate]
[Pages S6505-S6507]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS


                          previously submitted

  SA 3230. Ms. COLLINS (for herself, Mr. Bayh, Mr. Roberts, Mr. Reed, 
Mr. Dorgan, and Mr. Biden) submitted an amendment intended to be 
proposed by her to the bill S. 2400, to authorize appropriations for 
fiscal year 2005 for military activities of the Department of Defense, 
for military construction, and for defense activities of the Department 
of Energy, to prescribe personnel strengths for such fiscal year for 
the Armed Services, and for other purposes; which was ordered to lie on 
the table; as follows:

     SEC. 313. ENERGY SAVINGS PERFORMANCE CONTRACTS.

       (a) Contracts Authorized.--The Secretary of Defense may 
     enter into an energy savings performance contract under this 
     section for the sole purpose of achieving energy savings and 
     benefits ancillary to that purpose. The Secretary may incur 
     obligations under the contract to finance energy conservation 
     measures so long as guaranteed savings exceed the debt 
     service requirements.
       (b) Terms and Conditions.--
       (1) Contract period.--Notwithstanding any other provision 
     of law, an energy savings performance contract may be for a 
     period of up to 25 years beginning on the date on which the 
     first payment is made by the Secretary pursuant to the 
     contract. The contract need not include funding of 
     cancellation charges (if any) before cancellation, if--
       (A) the contract was awarded in a competitive manner, using 
     procedures and methods established under this section;
       (B) the Secretary determines that funds are available and 
     adequate for payment of the costs of the contract for the 
     first fiscal year;
       (C) the contract is governed by part 17.1 of the Federal 
     Acquisition Regulation; and
       (D) if the contract contains a clause setting forth a 
     cancellation ceiling in excess of $10,000,000, the Secretary 
     provides notice to Congress of the proposed contract and the 
     proposed cancellation ceiling at least 30 days before the 
     award of the contract.
       (2) Costs and savings.--An energy savings performance 
     contract shall require the contractor to incur the costs of 
     implementing energy savings measures, including at least the 
     cost (if any) incurred in making energy audits, acquiring and 
     installing equipment, and training personnel, in exchange for 
     a share of any energy savings directly resulting from 
     implementation of such measures during the term of the 
     contract.
       (3) Other terms and conditions.--An energy savings 
     performance contract shall require an annual energy audit and 
     specify the terms and conditions of any Government payments 
     and performance guarantees. Any such performance guarantee 
     shall provide that either the Government or the contractor is 
     responsible for maintenance and repair services for any 
     energy related equipment, including computer software 
     systems.
       (c) Limitation on Annual Contract Payments.--Aggregate 
     annual payments by the Secretary to a contractor for energy, 
     operations, and maintenance under an energy savings 
     performance contract may not exceed the amount that the 
     Department of Defense would have paid for energy, operations, 
     and maintenance in the absence of the contract (as estimated 
     through the procedures developed pursuant to this section) 
     during term of the contract. The contract shall provide for a 
     guarantee of savings to the Department, and shall establish 
     payment schedules reflecting such guarantee, taking into 
     account any capital costs under the contract.
       (d) Rulemaking.--Not later than 90 days after the date of 
     the enactment of this Act, the Secretary, with the 
     concurrence of the Federal Acquisition Regulatory Council, 
     shall issue final rules to establish the procedures and 
     methods for use by the Department of Defense to select, 
     monitor, and terminate energy savings performance contracts 
     in accordance with laws governing Federal procurement that 
     will achieve the intent of this section in a cost-effective 
     manner. In developing such procedures and methods, the 
     Secretary, with the concurrence of the Federal Acquisition 
     Regulatory Council, shall determine which existing 
     regulations are inconsistent with the intent of this section 
     and shall formulate substitute regulations consistent with 
     laws governing Federal procurement.
       (e) Implementation Procedures and Methods.--The procedures 
     and methods established by rule under subsection (d) shall--
       (1) provide for the calculation of energy savings based on 
     sound engineering and financial practices;
       (2) allow the Secretary to request statements of 
     qualifications, which shall, at a minimum, include prior 
     experience and capabilities of contractors to perform the 
     proposed types of energy savings services and financial and 
     performance information from firms engaged in providing 
     energy savings services;
       (3) allow the Secretary to presume that a contractor meets 
     the requirements of paragraph (2) if the contractor either--
       (A) has carried out contracts with a value of at least 
     $1,000,000,000 with the Federal Government over the previous 
     10 years; or
       (B) is listed by a Federal agency pursuant to section 
     801(b)(2) of the National Energy Policy Act (42 U.S.C. 
     8287(b)(2));
       (4) allow the Secretary to, from the statements received, 
     designate and prepare a list, with an update at least 
     annually, of those firms that are qualified to provide energy 
     savings services;
       (5) allow the Secretary to select firms from such list to 
     conduct discussions concerning a particular proposed energy 
     savings project, including requesting a technical and price 
     proposal from such selected firms for such project;
       (6) allow the Secretary to select from such firms the most 
     qualified firm to provide energy savings services based on 
     technical and price proposals and any other relevant 
     information;
       (7) allow the Secretary to permit receipt of unsolicited 
     proposals for energy savings performance contracting services 
     from a firm that the Department of Defense has determined is 
     qualified to provide such services under the procedures 
     established pursuant to subsection (d) and require facility 
     managers to place a notice in the Commerce Business Daily 
     announcing they have received such a proposal and invite 
     other similarly qualified firms to submit competing 
     proposals;
       (8) allow the Secretary to enter into an energy savings 
     performance contract with a firm qualified under paragraph 
     (7), consistent with the procedures and methods established 
     pursuant to subsection (d); and
       (9) allow a firm not designated as qualified to provide 
     energy savings services under paragraph (4) to request a 
     review of such decision to be conducted in accordance with 
     procedures, substantially equivalent to procedures 
     established under section 759(f) of title 40, United States 
     Code, to be developed by the board of contract appeals of the 
     General Services Administration.
       (f) Transition Rule for Certain Energy Savings Performance 
     Contracts.--In the case of any energy savings performance 
     contract entered into by the Secretary, or the Secretary of 
     Energy, before October 1, 2003, for services to be provided 
     at Department of Defense facilities, the Secretary may issue 
     additional task orders pursuant to such contract and may make 
     whatever contract modifications the parties to such contract 
     agree are necessary to conform to the provisions of this 
     section.
       (g) Pilot Program for Nonbuilding Applications.--
       (1) In general.--The Secretary may carry out a pilot 
     program to enter into up to 10 energy savings performance 
     contracts for the purpose of achieving energy savings, 
     secondary savings, and benefits incidental to those purposes, 
     in nonbuilding applications.

[[Page S6506]]

       (2) Selection.--The Secretary shall select the contract 
     projects to demonstrate the applicability and benefits of 
     energy savings performance contracting to a range of non-
     building applications.
       (3) Report.--Not later than three years after the date of 
     the enactment of this Act, the Secretary shall submit to 
     Congress a report on the progress and results of the pilot 
     program. The report shall include a description of projects 
     undertaken; the energy and cost savings, secondary savings 
     and other benefits that resulted from such projects; and 
     recommendations on whether the pilot program should be 
     extended, expanded, or authorized.
       (h) Definitions.--In this section:
       (1) Energy savings.--The term ``energy savings'' means a 
     reduction in the cost of energy, from a base cost established 
     through a methodology set forth in the energy savings 
     performance contract, utilized in an existing federally owned 
     building or buildings or other federally owned facilities as 
     a result of--
       (A) the lease or purchase of operating equipment, 
     improvements, altered operation and maintenance, increased 
     capacity or payload, or technical services; or
       (B) the increased efficient use of existing energy sources 
     by cogeneration or heat recovery, excluding any cogeneration 
     process for other than a federally owned building or 
     buildings or other federally owned facilities.
       (2) Energy savings performance contract.--The term ``energy 
     savings performance contract'' means a contract that provides 
     for the performance of services for the design, acquisition, 
     installation, testing, operation, and, where appropriate, 
     maintenance and repair of an identified energy conservation 
     measure or series of measures at one or more locations. Such 
     contracts--
       (A) may provide for appropriate software licensing 
     agreements; and
       (B) shall, with respect to an agency facility that is a 
     public building, as defined in section 13(l) of the Public 
     Buildings Act of 1959 (40 U.S.C. 612(l)), be in compliance 
     with the prospectus requirements and procedures of section 7 
     of the Public Buildings Accountability Act of 1959 (40 U.S.C. 
     606).
       (3) Nonbuilding application.--The term ``nonbuilding 
     application'' means--
       (A) any class of vehicles, devices, or equipment that is 
     transportable under its own power by land, sea, or air that 
     consumes energy from any fuel source for the purpose of such 
     transportability, or to maintain a controlled environment 
     within such vehicle, device, or equipment; or
       (B) any Federally owned equipment used to generate 
     electricity or transport water.
       (4) Secondary savings.--The term ``secondary savings'' 
     means additional energy or cost savings that are a direct 
     consequence of the energy savings that result from the energy 
     efficiency improvements that were financed and implemented 
     pursuant to the energy savings performance contract. Such 
     secondary savings may include energy and cost savings that 
     result from a reduction in the need for fuel delivery and 
     logistical support, personnel cost savings and environmental 
     benefits. In the case of electric generation equipment, 
     secondary savings may include the benefits of increased 
     efficiency in the production of electricity, including 
     revenue received by the Federal Government from the sale of 
     electricity so produced.
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of Defense.
                                 ______
                                 
  SA 3265. Ms. SNOWE (for herself, Mr. Allen, Mr. Coleman, and Mr. 
Kerry) submitted an amendment intended to be proposed by her to the 
bill S. 2400, to authorize appropriations for fiscal year 2005 for 
military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe personnel strengths for such fiscal year for the Armed 
Services, and for other purposes; which was ordered to lie on the 
table; as follows:

       Beginning on page 167, strike line 6 and all that follows 
     through page 169, line 21, and insert the following:
       (B) persons who are representative of labor organizations 
     associated with the defense industry, and persons who are 
     representative of small business concerns or organizations of 
     small business concerns that are involved in Department of 
     Defense contracting and other Federal Government contracting.
       (3) The appointment of the members of the Commission under 
     this subsection shall be made not later than March 1, 2005.
       (4) Members shall be appointed for the life of the 
     Commission. A vacancy in the Commission shall not affect its 
     powers, but shall be filled in the same manner in which the 
     original appointment was made.
       (5) The President shall designate one member of the 
     Commission to serve as the Chairman of the Commission.
       (c) Meetings.--(1) The Commission shall meet at the call of 
     the Chairman.
       (2) A majority of the members of the Commission shall 
     constitute a quorum, but a lesser number may hold hearings.
       (d) Duties.--(1) The Commission shall--
       (A) study the issues associated with the future of the 
     national technology and industrial base in the global 
     economy, particularly with respect to its effect on United 
     States national security; and
       (B) assess the future ability of the national technology 
     and industrial base to attain the national security 
     objectives set forth in section 2501 of title 10, United 
     States Code.
       (2) In carrying out the study and assessment under 
     paragraph (1), the Commission shall consider the following 
     matters:
       (A) Existing and projected future capabilities of the 
     national technology and industrial base.
       (B) The impact on the national technology and industrial 
     base of civil-military integration and the growing dependence 
     of the Department of Defense on the commercial market for 
     defense products and services.
       (C) The effects of domestic source restrictions on the 
     strength of the national technology and industrial base.
       (D) The effects of the policies and practices of United 
     States allies and trading partners on the national technology 
     and industrial base.
       (E) The effects on the national technology and industrial 
     base of laws and regulations related to international trade 
     and the export of defense technologies and dual-use 
     technologies.
       (F) The adequacy of programs that support science and 
     engineering education, including programs that support 
     defense science and engineering efforts at institutions of 
     higher learning, with respect to meeting the needs of the 
     national technology and industrial base.
       (G) The implementation of policies and planning required 
     under subchapter II of chapter 148 of title 10, United States 
     Code, and other provisions of law designed to support the 
     national technology and industrial base.
       (H) The role of the Manufacturing Technology program, other 
     Department of Defense research and development programs, and 
     the utilization of the authorities of the Defense Production 
     Act of 1950 to provide transformational breakthroughs in 
     advanced manufacturing technologies and processes that ensure 
     the strength and productivity of the national technology and 
     industrial base.
       (I) The role of small business concerns in strengthening 
     the national technology and industrial base.
                                 ______
                                 
  SA 3272. Ms. SNOWE submitted an amendment intended to be proposed by 
her to the bill S. 2400, to authorize appropriations for fiscal year 
2005 for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe personnel strengths for such fiscal year for the Armed 
Services, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 195, between lines 10 and 11, insert the following:

     SEC. 868. REQUIREMENT TO PROVIDE DOCUMENTS TO CONGRESS TO 
                   ENHANCE TRANSPARENCY IN DEPARTMENT OF DEFENSE 
                   CONTRACTING.

       (a) Requirement To Provide Requested Documents.--Chapter 
     137 of title 10, United States Code, is amended by adding at 
     the end the following new section:

     ``Sec. 2333. Congressional oversight: submittal of contract 
       documents

       ``(a) Requirement To Provide Requested Documents.--Not 
     later than 14 days after receiving from the chairman or 
     ranking member of a committee of Congress named in subsection 
     (b) a request for documents described in subsection (c) 
     regarding a Department of Defense contract, the Secretary of 
     Defense shall transmit an unredacted copy of each such 
     document to the chairman or ranking member making the 
     request.
       ``(b) Requesting Committees.--The committees of Congress 
     referred to in subsection (a) are as follows:
       ``(1) The Committee on Armed Services of the Senate.
       ``(2) The Committee on Armed Services of the House of 
     Representatives.
       ``(3) The Committee on Small Business and Entrepreneurship 
     of the Senate.
       ``(4) The Committee on Small Business of the House of 
     Representatives.
       ``(5) The Committee on Governmental Affairs of the Senate.
       ``(6) The Committee on Government Reform of the House of 
     Representatives.
       ``(c) Documents To Be Provided.--The requirement under 
     subsection (a) applies to documents, relating to a contract, 
     that are required to be maintained in the contracting office 
     contract file, the contract administration office contract 
     file, and the paying office contract file pursuant to subpart 
     4.8 of the Federal Acquisition Regulation, including--
       ``(1) copies of the contract and all modifications;
       ``(2) orders issued under the contract;
       ``(3) justifications and approvals;
       ``(4) any Government estimate of contract price;
       ``(5) source selection documentation;
       ``(6) cost or price analysis;
       ``(7) audit reports;
       ``(8) justification for type of contract;
       ``(9) authority for deviations from regulations, statutory 
     requirements, or other restrictions;
       ``(10) bills, invoices, vouchers, and supporting documents; 
     and
       ``(11) records of payments or receipts.
       ``(d) Contract Includes Task or Delivery Order.--In this 
     section, the term `contract' includes a task or delivery 
     order under a task or delivery order contract.''.

[[Page S6507]]

       (b) Clerical Amendment.--The table of sections at the 
     beginning of such chapter is amended by adding at the end the 
     following new item:

``2333. Congressional oversight: submittal of contract documents.''.
                                 ______
                                 
  SA 3273. Ms. SNOWE (for herself, Mr. Coleman, and Mr. Kerry) 
submitted an amendment intended to be proposed by her to the bill S. 
2400, to authorize appropriations for fiscal year 2005 for military 
activities of the Department of Defense, for military construction, and 
for defense activities of the Department of Energy, to prescribe 
personnel strengths for such fiscal year for the Armed Services, and 
for other purposes; which was ordered to lie on the table; as follows:

       On page 158, between lines 6 and 7, insert the following:

     SEC. 805. REVISION AND EXTENSION OF AUTHORITY FOR ADVISORY 
                   PANEL ON REVIEW OF GOVERNMENT PROCUREMENT LAWS 
                   AND REGULATIONS.

       (a) Relationship of Recommendations to Small Businesses.--
     Section 1423 of the National Defense Authorization Act for 
     Fiscal Year 2004 (Public Law 106-136; 117 Stat. 1669; 41 
     U.S.C. 405 note) is amended--
       (1) by redesignating subsection (d) as subsection (e); and
       (2) by inserting after subsection (c) the following new 
     subsection (d):
       ``(d) Issues Relating to Small Businesses.--In developing 
     recommendations under subsection (c)(2), the panel shall--
       ``(1) consider the effects of its recommendations on small 
     business concerns; and
       ``(2) include any recommended modifications of laws, 
     regulations, and policies that the panel considers necessary 
     to enhance and ensure competition in contracting that affords 
     small business concerns meaningful opportunity to participate 
     in Federal Government contracts.''.
       (b) Membership.--Subsection (b) of such section is 
     amended--
       (1) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B);
       (2) by inserting ``(1)'' after ``(b) Membership.--''; and
       (3) by adding at the end the following new paragraph:
       ``(2) The Chief Counsel for Advocacy of the Small Business 
     Administration, or a representative of the Chief Counsel 
     designated by the Chief Counsel, shall be an ex officio 
     member of the panel.''.
       (c) Revision and Extension of Reporting Requirement.--
     Subsection (e) of such section, as redesignated by subsection 
     (a)(1), is amended--
       (1) by striking ``Report.--'', and inserting ``Reporting 
     Requirements.--(1)'';
       (2) by striking ``one year after the establishment of the 
     panel'' and inserting ``one year after the date of the 
     enactment of the National Defense Authorization Act for 
     Fiscal Year 2005'';
       (3) by striking ``Services and'' both places it appears and 
     inserting ``Services,'';
       (4) by inserting ``, and Small Business'' after 
     ``Government Reform'';
       (5) by inserting ``, and Small Business and 
     Entrepreneurship'' after ``Governmental Affairs''; and
       (6) by adding at the end the following new paragraph:
       ``(2) If the panel completes the report under paragraph (1) 
     before the date of the enactment of the National Defense 
     Authorization Act for Fiscal Year 2005, the panel may submit 
     the report in accordance with that paragraph, but shall 
     also--
       ``(A) review its findings and recommendations for 
     consistency with subsection (d); and
       ``(B) not later than one year after the date of the 
     enactment of the National Defense Authorization Act for 
     Fiscal Year 2005, submit to the committees of Congress 
     specified in paragraph (1) a supplemental report that 
     contains the conclusions of the panel upon review under 
     subparagraph (A), together with any revised or additional 
     recommendations resulting from the application of subsection 
     (d)(2).''.

                          ____________________