There is established in the Department a Performance-Based Organization (hereafter referred to as the "PBO") which shall be a discrete management unit responsible for managing the administrative and oversight functions supporting the programs authorized under subchapter IV of this chapter, as specified in subsection (b).
The purposes of the PBO are—
(A) to improve service to students and other participants in the student financial assistance programs authorized under subchapter IV, including making those programs more understandable to students and their parents;
(B) to reduce the costs of administering those programs;
(C) to increase the accountability of the officials responsible for administering the operational aspects of these programs;
(D) to provide greater flexibility in the management and administration of the Federal student financial assistance programs;
(E) to integrate the information systems supporting the Federal student financial assistance programs;
(F) to implement an open, common, integrated system for the delivery of student financial assistance under subchapter IV; and
(G) to develop and maintain a student financial assistance system that contains complete, accurate, and timely data to ensure program integrity.
Notwithstanding any other provision of this part, the Secretary shall maintain responsibility for the development and promulgation of policy and regulations relating to the programs of student financial assistance under subchapter IV. In the exercise of its functions, the PBO shall be subject to the direction of the Secretary. The Secretary shall—
(A) request the advice of, and work in cooperation with, the Chief Operating Officer in developing regulations, policies, administrative guidance, or procedures affecting the Federal student financial assistance programs authorized under subchapter IV;
(B) request cost estimates from the Chief Operating Officer for system changes required by specific policies proposed by the Secretary; and
(C) assist the Chief Operating Officer in identifying goals for—
(i) the administration of the systems used to administer the Federal student financial assistance programs authorized under subchapter IV; and
(ii) the updating of such systems to current technology.
Subject to paragraph (1), the PBO shall be responsible for the administration of Federal student financial assistance programs authorized under subchapter IV, excluding the development of policy relating to such programs but including the following:
(A) The administrative, accounting, and financial management functions for the Federal student financial assistance programs authorized under subchapter IV, including—
(i) the collection, processing, and transmission of data to students, institutions, lenders, State agencies, and other authorized parties;
(ii) the design and technical specifications for software development and procurement for systems supporting the Federal student financial assistance programs authorized under subchapter IV;
(iii) all software and hardware acquisitions and all information technology contracts related to the administration and management of student financial assistance under subchapter IV;
(iv) all aspects of contracting for the information and financial systems supporting the Federal student financial assistance programs authorized under subchapter IV;
(v) providing all customer service, training, and user support related to the administration of the Federal student financial assistance programs authorized under subchapter IV; and
(vi) ensuring the integrity of the Federal student financial assistance programs authorized under subchapter IV.
(B) Annual development of a budget for the activities and functions of the PBO, in consultation with the Secretary, and for consideration and inclusion in the Department's annual budget submission.
The Secretary may allocate to the PBO such additional functions as the Secretary and the Chief Operating Officer determine are necessary or appropriate to achieve the purposes of the PBO.
Subject to paragraph (1), in carrying out its functions, the PBO shall exercise independent control of its budget allocations and expenditures, personnel decisions and processes, procurements, and other administrative and management functions.
The PBO shall be subject to the usual and customary Federal audit procedures and to review by the Inspector General of the Department.
The Secretary and the Chief Operating Officer shall consult concerning the effects of policy, market, or other changes on the ability of the PBO to achieve the goals and objectives established in the performance plan described in subsection (c).
The Secretary and the Chief Operating Officer may revise the annual performance agreement described in subsection (d)(4) in light of policy, market, or other changes that occur after the Secretary and the Chief Operating Officer enter into the agreement.
Each year, the Secretary and Chief Operating Officer shall agree on, and make available to the public, a performance plan for the PBO for the succeeding 5 years that establishes measurable goals and objectives for the organization.
In developing the 5-year performance plan and any revision to the plan, the Secretary and the Chief Operating Officer shall consult with students, institutions of higher education, Congress, lenders, the Advisory Committee on Student Financial Assistance, and other interested parties not less than 30 days prior to the implementation of the performance plan or revision.
The plan shall include a concise statement of the goals for a modernized system for the delivery of student financial assistance under subchapter IV and identify action steps necessary to achieve such goals. The plan shall address the PBO's responsibilities in the following areas:
Improving service to students and other participants in student financial aid programs authorized under under 1 subchapter IV, including making those programs more understandable to students and their parents.
Reducing the costs of administering those programs.
Improving and integrating the systems that support those programs.
Developing open, common, and integrated systems for programs authorized under under 1 subchapter IV.
Any other areas identified by the Secretary.
Each year, the Chief Operating Officer shall prepare and submit to Congress, through the Secretary, an annual report on the performance of the PBO, including an evaluation of the extent to which the PBO met the goals and objectives contained in the 5-year performance plan described in paragraph (1) for the preceding year. The annual report shall include the following:
(A) An independent financial audit of the expenditures of both the PBO and the programs administered by the PBO.
(B) Financial and performance requirements applicable to the PBO under the Chief Financial Officers Act of 1990 and the Government Performance and Results Act of 1993.
(C) The results achieved by the PBO during the year relative to the goals established in the organization's performance plan.
(D) The evaluation rating of the performance of the Chief Operating Officer and senior managers under subsections (d)(4) and (e)(2), including the amounts of bonus compensation awarded to these individuals.
(E) Recommendations for legislative and regulatory changes to improve service to students and their families, and to improve program efficiency and integrity.
(F) Other such information as the Director of the Office of Management and Budget shall prescribe for performance based organizations.
The Chief Operating Officer, in preparing the report described in paragraph (2), shall establish appropriate means to consult with students, borrowers, institutions, lenders, guaranty agencies, secondary markets, and others involved in the delivery system of student aid under subchapter IV—
(A) regarding the degree of satisfaction with the delivery system; and
(B) to seek suggestions on means to improve the delivery system.
The Secretary shall, upon request, provide a briefing to the members of the authorizing committees on the steps the Department has taken to ensure—
(A) the integrity of the student loan programs; and
(B) that lenders and guaranty agencies are adhering to the requirements of subchapter IV.
The management of the PBO shall be vested in a Chief Operating Officer who shall be appointed by the Secretary to a term of not less than 3 and not more than 5 years, and compensated without regard to chapters 33, 51, and 53 of title 5. The appointment shall be made on the basis of demonstrated management ability and expertise in information technology, including experience with financial systems, and without regard to political affiliation or activity.
The Secretary may reappoint the Chief Operating Officer to subsequent terms of not less than 3 and not more than 5 years, so long as the performance of the Chief Operating Officer, as set forth in the performance agreement described in paragraph (4), is satisfactory.
The Chief Operating Officer may be removed by—
(A) the President; or
(B) the Secretary, for misconduct or failure to meet performance goals set forth in the performance agreement in paragraph (4).
The President or Secretary shall communicate the reasons for any such removal to the authorizing committees.
Each year, the Secretary and the Chief Operating Officer shall enter into an annual performance agreement, that shall set forth measurable organization and individual goals for the Chief Operating Officer.
The final agreement, and any revision to the final agreement, shall be transmitted to the authorizing committees, and made publicly available.
The Chief Operating Officer is authorized to be paid at an annual rate of basic pay not to exceed the maximum rate of basic pay for the Senior Executive Service under section 5382 of title 5, including any applicable locality-based comparability payment that may be authorized under section 5304(h)(2)(B) of such title. The compensation of the Chief Operating Officer shall be considered for purposes of section 207(c)(2)(A) of title 18 to be the equivalent of that described under clause (ii) of section 207(c)(2)(A) of such title.
In addition, the Chief Operating Officer may receive a bonus in an amount that does not exceed 50 percent of such annual rate of basic pay, based upon the Secretary's evaluation of the Chief Operating Officer's performance in relation to the goals set forth in the performance agreement described in paragraph (4).
Payment of a bonus under subparagraph (B) may be made to the Chief Operating Officer only to the extent that such payment does not cause the Chief Operating Officer's total aggregate compensation in a calendar year to equal or exceed the amount of the President's salary under section 102 of title 3.
The Chief Operating Officer may appoint such senior managers as that officer determines necessary without regard to the provisions of title 5 governing appointments in the competitive service.
The senior managers described in subparagraph (A) may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.
Each year, the Chief Operating Officer and each senior manager appointed under this subsection shall enter into an annual performance agreement that sets forth measurable organization and individual goals. The agreement shall be subject to review and renegotiation at the end of each term.
A senior manager appointed under this subsection may be paid at an annual rate of basic pay of not more than the maximum rate of basic pay for the Senior Executive Service under section 5382 of title 5, including any applicable locality-based comparability payment that may be authorized under section 5304(h)(2)(C) of such title. The compensation of a senior manager shall be considered for purposes of section 207(c)(2)(A) of title 18 to be the equivalent of that described under clause (ii) of section 207(c)(2)(A) of such title.
In addition, a senior manager may receive a bonus in an amount such that the manager's total annual compensation does not exceed 125 percent of the maximum rate of basic pay for the Senior Executive Service, including any applicable locality-based comparability payment, based upon the Chief Operating Officer's evaluation of the manager's performance in relation to the goals set forth in the performance agreement described in paragraph (2).
A senior manager shall be removable by the Chief Operating Officer, or by the Secretary if the position of Chief Operating Officer is vacant.
The Chief Operating Officer, in consultation with the Secretary, shall appoint a Student Loan Ombudsman to provide timely assistance to borrowers of loans made, insured, or guaranteed under subchapter IV by performing the functions described in paragraph (3).
The Chief Operating Officer shall disseminate information about the availability and functions of the Ombudsman to students, borrowers, and potential borrowers, as well as institutions of higher education, lenders, guaranty agencies, loan servicers, and other participants in those student loan programs.
The Ombudsman shall—
(A) in accordance with regulations of the Secretary, receive, review, and attempt to resolve informally complaints from borrowers of loans described in paragraph (1), including, as appropriate, attempts to resolve such complaints within the Department of Education and with institutions of higher education, lenders, guaranty agencies, loan servicers, and other participants in the loan programs described in paragraph (1); and
(B) compile and analyze data on borrower complaints and make appropriate recommendations.
Each year, the Ombudsman shall submit a report to the Chief Operating Officer, for inclusion in the annual report under subsection (c)(2), that describes the activities, and evaluates the effectiveness of the Ombudsman during the preceding year.
The PBO shall not be subject to any ceiling relating to the number or grade of employees.
The Chief Operating Officer shall work with the Office of Personnel Management to develop and implement personnel flexibilities in staffing, classification, and pay that meet the needs of the PBO, subject to compliance with title 5.
The Chief Operating Officer may appoint, without regard to the provisions of title 5 governing appointments in the competitive service, technical and professional employees to administer the functions of the PBO. These employees may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.
The PBO shall establish an annual performance management system, subject to compliance with title 5, and consistent with applicable provisions of law and regulations, which strengthens the effectiveness of the PBO by providing for establishing goals or objectives for individual, group, or organizational performance (or any combination thereof), consistent with the performance plan of the PBO and its performance planning procedures, including those established under the Government Performance and Results Act of 1993, and communicating such goals or objectives to employees.
The Secretary shall allocate from funds made available under section 1087h of this title such funds as are appropriate to the functions assumed by the PBO. In addition, there are authorized to be appropriated such sums as may be necessary to carry out the purposes of this part.
(Pub. L. 89–329, title I, §141, as added Pub. L. 105–244, title I, §101(a), Oct. 7, 1998, 112 Stat. 1604; amended Pub. L. 110–315, title I, §§103(b)(2), 117, Aug. 14, 2008, 122 Stat. 3088, 3114; Pub. L. 111–39, title I, §101(b)(5), July 1, 2009, 123 Stat. 1935.)
The Chief Financial Officers Act of 1990, referred to in subsec. (c)(2)(B), is Pub. L. 101–576, Nov. 15, 1990, 104 Stat. 2838. For complete classification of this Act to the Code, see Short Title of 1990 Amendment note set out under section 501 of Title 31, Money and Finance, and Tables.
The Government Performance and Results Act of 1993, referred to in subsecs. (c)(2)(B) and (h), is Pub. L. 103–62, Aug. 3, 1993, 107 Stat. 285, which enacted section 306 of Title 5, Government Organization and Employees, sections 1115 to 1119, 9703, and 9704 of Title 31, Money and Finance, and sections 2801 to 2805 of Title 39, Postal Service, amended section 1105 of Title 31, and enacted provisions set out as notes under sections 1101 and 1115 of Title 31. For complete classification of this Act to the Code, see Short Title of 1993 Amendment note set out under section 1101 of Title 31 and Tables.
A prior section 1018, Pub. L. 89–329, title I, §141, as added Pub. L. 100–418, title VI, §6201, Aug. 23, 1988, 102 Stat. 1514, set out purpose of former part D of this subchapter as being the development of student literacy corps programs, prior to the general amendment of this subchapter by Pub. L. 102–325.
Another prior section 1018, Pub. L. 89–329, title I, §118, as added Pub. L. 96–374, title I, §101(a), Oct. 3, 1980, 94 Stat. 1382, defined terms used in former part D of this subchapter, prior to the general amendment of this subchapter by Pub. L. 99–498.
2009—Subsec. (c)(3). Pub. L. 111–39, §101(b)(5)(A), substituted "under subchapter IV" for "under this subchapter" in introductory provisions.
Subsec. (d)(3). Pub. L. 111–39, §101(b)(5)(B), substituted "authorizing committees" for "appropriate committees of Congress" in concluding provisions.
2008—Subsec. (a)(1). Pub. L. 110–315, §117(1)(A), substituted "administrative and oversight" for "operational".
Subsec. (a)(2)(D). Pub. L. 110–315, §117(1)(B), substituted "and administration" for "of the operational functions".
Subsec. (b)(1)(A). Pub. L. 110–315, §117(2)(A)(i), substituted "the Federal student financial assistance programs authorized under subchapter IV" for "the information systems administered by the PBO, and other functions performed by the PBO".
Subsec. (b)(1)(C). Pub. L. 110–315, §117(2)(A)(ii), added subpar. (C) and struck out former subpar. (C) which read as follows: "assist the Chief Operating Officer in identifying goals for the administration and modernization of the delivery system for student financial assistance under subchapter IV."
Subsec. (b)(2). Pub. L. 110–315, §117(2)(B)(i), in introductory provisions, substituted "the administration of Federal" for "administration of the information and financial systems that support" and "subchapter IV" for "this subchapter".
Subsec. (b)(2)(A). Pub. L. 110–315, §117(2)(B)(ii)(I), substituted "for the Federal student financial assistance programs authorized under subchapter IV" for "of the delivery system for Federal student assistance" in introductory provisions.
Subsec. (b)(2)(A)(i), (ii). Pub. L. 110–315, §117(2)(B)(ii)(II), added cls. (i) and (ii) and struck out former cls. (i) and (ii) which read as follows:
"(i) the collection, processing and transmission of applicant data to students, institutions and authorized third parties, as provided for in section 1090 of this title;
"(ii) design and technical specifications for software development and systems supporting the delivery of student financial assistance under subchapter IV;".
Subsec. (b)(2)(A)(iii). Pub. L. 110–315, §117(2)(B)(ii)(III), substituted "administration" for "delivery".
Subsec. (b)(2)(A)(iv). Pub. L. 110–315, §117(2)(B)(ii)(IV), inserted "the Federal" after "supporting", substituted "authorized under subchapter IV" for "under this subchapter", and struck out "and" after the semicolon.
Subsec. (b)(2)(A)(v). Pub. L. 110–315, §117(2)(B)(ii)(V), substituted "the administration of the Federal student financial assistance programs authorized under subchapter IV; and" for "systems that support those programs."
Subsec. (b)(2)(A)(vi). Pub. L. 110–315, §117(2)(B)(ii)(VI), added cl. (vi).
Subsec. (b)(2)(B). Pub. L. 110–315, §117(2)(B)(iii), substituted "activities and functions" for "operations and services".
Subsec. (c). Pub. L. 110–315, §117(3)(A), substituted "Performance plan, report, and briefing" for "Performance plan and report" in heading.
Subsec. (c)(1)(C)(i). Pub. L. 110–315, §117(3)(B)(i), substituted "under subchapter IV" for "this subchapter".
Subsec. (c)(1)(C)(iii). Pub. L. 110–315, §117(3)(B)(ii), struck out "information and delivery" after "integrating the".
Subsec. (c)(1)(C)(iv). Pub. L. 110–315, §117(3)(B)(i), (iii), substituted "Developing" for "Developing an", "systems" for "delivery and information system", and "under subchapter IV" for "this subchapter".
Subsec. (c)(2)(A). Pub. L. 110–315, §117(3)(C)(i), inserted "the" after "PBO and".
Subsec. (c)(2)(B). Pub. L. 110–315, §117(3)(C)(ii), substituted "Officers" for "Officer".
Subsec. (c)(3). Pub. L. 110–315, §117(3)(D), inserted "students," after "consult with" in introductory provisions.
Subsec. (c)(4). Pub. L. 110–315, §117(3)(E), added par. (4).
Subsec. (d)(1). Pub. L. 110–315, §117(4)(A), struck out after first sentence "The Secretary shall appoint the Chief Operating Officer within 6 months after October 7, 1998."
Subsec. (d)(4)(B). Pub. L. 110–315, §103(b)(2), substituted "authorizing committees" for "Committee on Education and the Workforce of the House of Representatives and the Committee on Labor and Human Resources of the Senate".
Subsec. (d)(5)(B). Pub. L. 110–315, §117(4)(B)(i), substituted "paragraph (4)" for "paragraph (2)".
Subsec. (d)(5)(C). Pub. L. 110–315, §117(4)(B)(ii), struck out "this" before "subparagraph (B)".
Subsec. (f)(2). Pub. L. 110–315, §117(5)(A), substituted "to students, borrowers," for "to borrowers".
Subsec. (f)(3)(A). Pub. L. 110–315, §117(5)(B), substituted "paragraph (1);" for "paragraph (1)(A);".
Subsec. (g)(3). Pub. L. 110–315, §117(6), struck out "not more than 25" before "technical and professional employees".
Subsec. (h). Pub. L. 110–315, §117(7), substituted "effectiveness" for "organizational effectiveness".
Subsecs. (i), (j). Pub. L. 110–315, §117(8)–(10), redesignated subsec. (j) as (i), struck out ", including transition costs" before period at end, and struck out former subsec. (i). Text of former subsec. (i) read as follows: "The Secretary and the Chief Operating Officer, not later than 180 days after October 7, 1998, shall report to Congress on the proposed budget and sources of funding for the operation of the PBO."
Amendment by Pub. L. 111–39 effective as if enacted on the date of enactment of Pub. L. 110–315 (Aug. 14, 2008), see section 3 of Pub. L. 111–39, set out as a note under section 1001 of this title.
Pub. L. 105–244, title VIII, §801, Oct. 7, 1998, 112 Stat. 1803, which directed the Comptroller General and Secretary of Education, in consultation with a study group, to design and conduct a study to identify and evaluate means of establishing a market mechanism for the delivery of certain student loans made pursuant to title IV of the Higher Education Act (20 U.S.C. 1070 et seq.) and to transmit a final report to congressional committees not later than May 15, 2001, was repealed by Pub. L. 110–315, title IX, §931(1), Aug. 14, 2008, 122 Stat. 3456.
Subject to the authority of the Secretary, the Chief Operating Officer of a PBO may exercise the authority of the Secretary to procure property and services in the performance of functions managed by the PBO. For the purposes of this section, the term "PBO" includes the Chief Operating Officer of the PBO and any employee of the PBO exercising procurement authority under the preceding sentence.
Except as provided in this section, the PBO shall abide by all applicable Federal procurement laws and regulations when procuring property and services. The PBO shall—
(1) enter into contracts to carry out the functions set forth in section 1018(b)(2) of this title;
(2) obtain the services of experts and consultants without regard to section 3109 of title 5 and set pay in accordance with such section; and
(3) through the Chief Operating Officer—
(A) to the maximum extent practicable, utilize procurement systems that streamline operations, improve internal controls, and enhance management; and
(B) assess the efficiency of such systems and assess such systems' ability to meet PBO requirements.
The Chief Operating Officer shall, to the extent practicable, maximize the use of performance-based servicing contracts, consistent with guidelines for such contracts published by the Office of Federal Procurement Policy, to achieve cost savings and improve service.
The Chief Operating Officer shall, when appropriate and consistent with the purposes of the PBO, acquire services related to the functions set forth in section 1018(b)(2) of this title from any entity that has the capability and capacity to meet the requirements set by the PBO. The Chief Operating Officer is authorized to pay fees that are equivalent to those paid by other entities to an organization that provides services that meet the requirements of the PBO, as determined by the Chief Operating Officer.
The PBO may use a two-phase process for selecting a source for a procurement of property or services.
The procedures for the first phase of the process for a procurement are as follows:
The contracting officer for the procurement shall publish a notice of the procurement in accordance with section 1708 of title 41 and subsections (e), (f), and (g) of section 637 of title 15, except that the notice shall include only the following:
(i) A general description of the scope or purpose of the procurement that provides sufficient information on the scope or purpose for sources to make informed business decisions regarding whether to participate in the procurement.
(ii) A description of the basis on which potential sources are to be selected to submit offers in the second phase.
(iii) A description of the information that is to be required under subparagraph (B).
(iv) Any additional information that the contracting officer determines appropriate.
Each offeror for the procurement shall submit basic information, such as information on the offeror's qualifications, the proposed conceptual approach, costs likely to be associated with the proposed conceptual approach, and past performance of the offeror, together with any additional information that is requested by the contracting officer.
The contracting officer shall select the offerors that are to be eligible to participate in the second phase of the process. The contracting officer shall limit the number of the selected offerors to the number of sources that the contracting officer determines is appropriate and in the best interests of the Federal Government.
The contracting officer shall conduct the second phase of the source selection process in accordance with sections 3306(a) to (e) and 3308, chapter 37, and section 4702 of title 41.
Only the sources selected in the first phase of the process shall be eligible to participate in the second phase.
The second phase may include a single procurement or multiple procurements within the scope, or for the purpose, described in the notice pursuant to paragraph (2)(A).
The procedures used for selecting a source for a procurement under this subsection shall be considered competitive procedures for all purposes.
Whenever the PBO anticipates that commercial items will be offered for a procurement, the PBO may use (consistent with the special rules for commercial items) the special simplified procedures for the procurement without regard to—
(1) any dollar limitation otherwise applicable to the use of those procedures; and
(2) the expiration of the authority to use special simplified procedures under section 4202(e) of the Clinger-Cohen Act of 1996 (110 Stat. 654; 10 U.S.C. 2304 note).
In carrying out a procurement, the PBO may—
(A) apply a shorter waiting period for the issuance of a solicitation after the publication of a notice under section 1708 of title 41 than is required under subsection (a)(3)(A) of such section; and
(B) notwithstanding subsection (a)(3) of such section, establish any deadline for the submission of bids or proposals that affords potential offerors a reasonable opportunity to respond to the solicitation.
Paragraph (1) does not apply to a procurement of a commercial item.
If an international agreement is applicable to the procurement, any exercise of authority under paragraph (1) shall be consistent with the international agreement.
The PBO may satisfy the requirements of the PBO for a system incrementally by carrying out successive procurements of modules of the system. In doing so, the PBO may use procedures authorized under this subsection to procure any such module after the first module.
A module may not be procured for a system under this subsection unless the module is useful independently of the other modules or useful in combination with another module previously procured for the system.
The PBO may use procedures authorized under paragraph (4) for the procurement of an additional module for a system if—
(A) competitive procedures were used for awarding the contract for the procurement of the first module for the system; and
(B) the solicitation for the first module included—
(i) a general description of the entire system that was sufficient to provide potential offerors with reasonable notice of the general scope of future modules;
(ii) other information sufficient for potential offerors to make informed business judgments regarding whether to submit offers for the contract for the first module; and
(iii) a statement that procedures authorized under this subsection could be used for awarding subsequent contracts for the procurement of additional modules for the system.
If the procurement of the first module for a system meets the requirements set forth in paragraph (3), the PBO may award a contract for the procurement of an additional module for the system using any of the following procedures:
Award of the contract on a single-source basis to a contractor who was awarded a contract for a module previously procured for the system under competitive procedures or procedures authorized under subparagraph (B).
Award of the contract on the basis of offers made by—
(i) a contractor who was awarded a contract for a module previously procured for the system after having been selected for award of the contract under this subparagraph or other competitive procedures; and
(ii) at least one other offeror that submitted an offer for a module previously procured for the system and is expected, on the basis of the offer for the previously procured module, to submit a competitive offer for the additional module.
Award of the contract under any other procedure authorized by law.
Not less than 30 days before issuing a solicitation for offers for a contract for a module for a system under procedures authorized under subparagraph (A) or (B) of paragraph (4), the PBO shall publish in the Commerce Business Daily a notice of the intent to use such procedures to enter into the contract.
Publication of a notice is not required under this paragraph with respect to a use of procedures authorized under paragraph (4) if the contractor referred to in that subparagraph (who is to be solicited to submit an offer) has previously provided a module for the system under a contract that contained cost, schedule, and performance goals and the contractor met those goals.
A notice published under subparagraph (A) with respect to a use of procedures described in paragraph (4) shall contain the information required under section 1708(c) of title 41, other than paragraph (4) of such section, and shall invite the submission of any assertion that the use of the procedures for the procurement involved is not in the best interest of the Federal Government together with information supporting the assertion.
The basis for an award of a contract under this subsection shall be documented. However, a justification pursuant to section 3304(e) of title 41 or section 637(h) of title 15 is not required.
The PBO may award a contract under any other simplified procedures prescribed by the PBO for the selection of sources for the procurement of modules for a system, after the first module, that are not to be procured under a contract awarded on a single-source basis.
The PBO may use special simplified procedures for a procurement of services that are not commercial items if—
(A) the procurement is in an amount not greater than $1,000,000;
(B) the procurement is conducted as a small business set-aside pursuant to section 644(a) of title 15; and
(C) the price charged for supplies associated with the services procured are items of supply expected to be less than 20 percent of the total contract price.
The authority set forth in paragraph (1) may not be used for—
(A) an award of a contract on a single-source basis; or
(B) a contract for construction.
The Chief Operating Officer of the PBO, in consultation with the Administrator for Federal Procurement Policy, shall issue guidance for the use by PBO personnel of the authority provided in this section.
As part of the consultation required under paragraph (1), the Administrator for Federal Procurement Policy shall provide the PBO with guidance that is designed to ensure, to the maximum extent practicable, that the authority under this section is exercised by the PBO in a manner that is consistent with the exercise of the authority by the heads of the other performance-based organizations.
The head of the PBO shall ensure that the procurements of the PBO under this section are carried out in a manner that is consistent with the guidance provided for the PBO under paragraph (2).
No department or agency of the Federal Government may purchase property or services under contracts entered into or administered by a PBO under this section unless the purchase is approved in advance by the senior procurement official of that department or agency who is responsible for purchasing by the department or agency.
Nothing in this section shall be construed to waive laws for the enforcement of civil rights or for the establishment and enforcement of labor standards that are applicable to contracts of the Federal Government.
In this section:
The term "commercial item" has the meaning given the term in section 103 of title 41.
The term "competitive procedures" has the meaning given the term in section 152 of title 41.
The term "single-source basis", with respect to an award of a contract, means that the contract is awarded to a source after soliciting an offer or offers from, and negotiating with, only such source (although such source is not the only source in the marketplace capable of meeting the need) because such source is the most advantageous source for purposes of the award.
The term "special rules for commercial items" means the regulations set forth in the Federal Acquisition Regulation pursuant to sections 1901 and 3305(a) of title 41.
The term "special simplified procedures" means the procedures applicable to purchases of property and services for amounts not greater than the simplified acquisition threshold that are set forth in the Federal Acquisition Regulation pursuant to sections 1901(a)(1) and 3305(a)(1) of title 41.
(Pub. L. 89–329, title I, §142, as added Pub. L. 105–244, title I, §101(a), Oct. 7, 1998, 112 Stat. 1611; amended Pub. L. 110–315, title I, §118, Aug. 14, 2008, 122 Stat. 3116; Pub. L. 115–232, div. A, title VIII, §836(g)(2), Aug. 13, 2018, 132 Stat. 1872.)
Pub. L. 115–232, div. A, title VIII, §836(g)(2), (h), Aug. 13, 2018, 132 Stat. 1872, 1874, made amendments to subsections (e), (f), (h) and (l) of this section, effective Jan. 1, 2020, subject to a savings provision. After Jan. 1, 2020, subsections (e), (f), (h) and (l) of this section will read as follows:
Whenever the PBO anticipates that commercial products or commercial services will be offered for a procurement, the PBO may use (consistent with the special rules for commercial products and commercial services) the special simplified procedures for the procurement without regard to any dollar limitation otherwise applicable to the use of those procedures.
In carrying out a procurement, the PBO may—
(A) apply a shorter waiting period for the issuance of a solicitation after the publication of a notice under section 1708 of title 41 than is required under subsection (a)(3)(A) of such section; and
(B) notwithstanding subsection (a)(3) of such section, establish any deadline for the submission of bids or proposals that affords potential offerors a reasonable opportunity to respond to the solicitation.
Paragraph (1) does not apply to a procurement of a commercial product or a commercial service.
If an international agreement is applicable to the procurement, any exercise of authority under paragraph (1) shall be consistent with the international agreement.
The PBO may use special simplified procedures for a procurement of services that are not commercial services if—
(A) the procurement is in an amount not greater than $1,000,000;
(B) the procurement is conducted as a small business set-aside pursuant to section 644(a) of title 15; and
(C) the price charged for supplies associated with the services procured are items of supply expected to be less than 20 percent of the total contract price.
The authority set forth in paragraph (1) may not be used for—
(A) an award of a contract on a single-source basis; or
(B) a contract for construction.
In this section:
The term "commercial product" has the meaning given the term in section 103 of title 41.
The term "commercial service" has the meaning given the term in section 103a of title 41.
The term "competitive procedures" has the meaning given the term in section 152 of title 41.
The term "single-source basis", with respect to an award of a contract, means that the contract is awarded to a source after soliciting an offer or offers from, and negotiating with, only such source (although such source is not the only source in the marketplace capable of meeting the need) because such source is the most advantageous source for purposes of the award.
The term "special rules for commercial products and commercial services" means the regulations set forth in the Federal Acquisition Regulation pursuant to sections 1901 and 3305(a) of title 41.
The term "special simplified procedures" means the procedures applicable to purchases of property and services for amounts not greater than the simplified acquisition threshold that are set forth in the Federal Acquisition Regulation pursuant to sections 1901(a)(1) and 3305(a)(1) of title 41.
See 2018 Amendment notes below.
Section 4202(e) of the Clinger-Cohen Act of 1996, referred to in subsec. (e)(2), is section 4202(e) of Pub. L. 104–106, which is set out as a note under section 2304 of Title 10, Armed Forces.
In subsec. (d)(2)(A), "section 1708 of title 41" substituted for "section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (d)(3)(A), "sections 3306(a) to (e) and 3308, chapter 37, and section 4702 of title 41" substituted for "sections 303A and 303B of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253a and 253b)" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (f)(1)(A), "section 1708 of title 41" substituted for "section 18 of the Office of Federal Procurement Policy Act (41 U.S.C. 416)" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (g)(5)(C), "section 1708(c) of title 41" substituted for "section 18(b) of the Office of Federal Procurement Policy Act (41 U.S.C. 416(b))" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (g)(6), "section 3304(e) of title 41" substituted for "section 303(f) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f))" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (l)(1), "section 103 of title 41" substituted for "section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12))" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (l)(2), "section 152 of title 41" substituted for "section 309(b) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(b))" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (l)(4), "sections 1901 and 3305(a) of title 41" substituted for "section 303(g)(1) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)) and section 31 of the Office of Federal Procurement Policy Act (41 U.S.C. 427)" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
In subsec. (l)(5), "sections 1901(a)(1) and 3305(a)(1) of title 41" substituted for "section 303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(A)) and section 31(a)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(1))" on authority of Pub. L. 111–350, §6(c), Jan. 4, 2011, 124 Stat. 3854, which Act enacted Title 41, Public Contracts.
A prior section 1018a, Pub. L. 89–329, title I, §142, as added Pub. L. 100–418, title VI, §6201, Aug. 23, 1988, 102 Stat. 1515, related to grants for literacy corps programs, prior to the general amendment of this subchapter by Pub. L. 102–325.
2018—Subsec. (e). Pub. L. 115–232, §836(g)(2)(A), in heading, substituted "commercial products and commercial services" for "commercial items" and, in text, substituted "that commercial products or commercial services will be offered for a procurement, the PBO may use (consistent with the special rules for commercial products and commercial services) the special simplified procedures for the procurement without regard to" for "that commercial items will be offered for a procurement, the PBO may use (consistent with the special rules for commercial items) the special simplified procedures for the procurement without regard to—", struck out par. (1) designation, substituted period for "; and", and struck out par. (2). Prior to amendment, par. (2) read as follows: "the expiration of the authority to use special simplified procedures under section 4202(e) of the Clinger-Cohen Act of 1996 (110 Stat. 654; 10 U.S.C. 2304 note)."
Subsec. (f). Pub. L. 115–232, §836(g)(2)(B)(i), substituted "products and services" for "items" in heading.
Subsec. (f)(2). Pub. L. 115–232, §836(g)(2)(B)(ii), (iii), substituted "products and services" for "items" in heading and "a commercial product or a commercial service" for "a commercial item" in text.
Subsec. (h). Pub. L. 115–232, §836(g)(2)(C)(i), substituted "services" for "items" in heading.
Subsec. (h)(1). Pub. L. 115–232, §836(g)(2)(C)(ii), substituted "commercial services" for "commercial items" in introductory provisions.
Subsec. (l)(1), (2). Pub. L. 115–232, §836(g)(2)(D)(ii), added pars. (1) and (2) and struck out former par. (1) which defined "commercial item". Former par. (2) redesignated (3).
Subsec. (l)(3). Pub. L. 115–232, §836(g)(2)(D)(i), (iii), redesignated par. (2) as (3) and substituted "in section 152 of title 41." for "in section 309(b) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(b))." Former par. (3) redesignated (4).
Subsec. (l)(4). Pub. L. 115–232, §836(g)(2)(D)(i), redesignated par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (l)(5). Pub. L. 115–232, §836(g)(2)(D)(i), (iv), redesignated par. (4) as (5) and substituted, in heading, "commercial products and commercial services" for "commercial items" and, in text, "commercial products and commercial services" for "commercial items" and "pursuant to sections 1901 and 3305(a) of title 41." for "pursuant to section 303(g)(1) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)) and section 31 of the Office of Federal Procurement Policy Act (41 U.S.C. 427)." Former par. (5) redesignated (6).
Subsec. (l)(6). Pub. L. 115–232, §836(g)(2)(D)(i), (v), redesignated par. (5) as (6) and substituted "pursuant to sections 1901(a)(1) and 3305(a)(1) of title 41." for "pursuant to section 303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(g)(1)(A)) and section 31(a)(1) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(1))."
2008—Subsec. (b)(1). Pub. L. 110–315, §118(1)(A), struck out "for information systems supporting the programs authorized under subchapter IV" after "enter into contracts" and "and" after semicolon.
Subsec. (b)(2), (3). Pub. L. 110–315, §118(1)(B), (C), substituted "; and" for period at end of par. (2) and added par. (3).
Subsec. (c)(2). Pub. L. 110–315, §118(2), added par. (2) and struck out former par. (2). Prior to amendment, text read as follows: "The Chief Operating Officer shall, when appropriate and consistent with the purposes of the PBO, acquire services related to the subchapter IV delivery system from any entity that has the capability and capacity to meet the requirements for the system. The Chief Operating Officer is authorized to pay fees that are equivalent to those paid by other entities to an organization that provides an information system or service that meets the requirements of the PBO, as determined by the Chief Operating Officer."
Subsec. (d)(2)(B). Pub. L. 110–315, §118(3), struck out "on Federal Government contracts" after "performance of the offeror".
Subsec. (g)(4)(A). Pub. L. 110–315, §118(4)(A), substituted "Single-source basis" for "Sole source" in heading and "single-source" for "sole-source" in text.
Subsec. (g)(7). Pub. L. 110–315, §118(4)(B), substituted "single-source" for "sole-source".
Subsec. (h)(2)(A). Pub. L. 110–315, §118(5), substituted "single-source" for "sole-source".
Subsec. (l)(3). Pub. L. 110–315, §118(6), added par. (3) and struck out former par. (3). Prior to amendment, text read as follows: "The term 'sole-source basis', with respect to an award of a contract, means that the contract is awarded to a source after soliciting an offer or offers from, and negotiating with, only that source."
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
In order to improve the efficiency and effectiveness of the student aid delivery system, the Secretary and the Chief Operating Officer shall encourage and participate in the establishment of voluntary consensus standards and requirements for the electronic transmission of information necessary for the administration of programs under subchapter IV.
(1) The Chief Operating Officer shall participate in the activities of standard setting organizations in carrying out the provisions of this section.
(2) The Chief Operating Officer shall encourage higher education groups seeking to develop common forms, standards, and procedures in support of the delivery of Federal student financial assistance to conduct these activities within a standard setting organization.
(3) The Chief Operating Officer may pay necessary dues and fees associated with participating in standard setting organizations pursuant to this subsection.
Except with respect to the common financial reporting form under section 1090(a) of this title, the Secretary shall consider adopting voluntary consensus standards agreed to by the organization described in subsection (b) for transactions required under subchapter IV, and common data elements for such transactions, to enable information to be exchanged electronically between systems administered by the Department and among participants in the Federal student aid delivery system.
Nothing in this section shall restrict the ability of participating institutions and lenders from using a clearinghouse or servicer to comply with the standards for the exchange of information established under this section.
Any entity that maintains or transmits information under a transaction covered by this section shall maintain reasonable and appropriate administrative, technical, and physical safeguards—
(1) to ensure the integrity and confidentiality of the information; and
(2) to protect against any reasonably anticipated security threats, or unauthorized uses or disclosures of the information.
The term "clearinghouse" means a public or private entity that processes or facilitates the processing of nonstandard data elements into data elements conforming to standards adopted under this section.
The term "standard setting organization" means an organization that—
(A) is accredited by the American National Standards Institute;
(B) develops standards for information transactions, data elements, or any other standard that is necessary to, or will facilitate, the implementation of this section; and
(C) is open to the participation of the various entities engaged in the delivery of Federal student financial assistance.
The term "voluntary consensus standard" means a standard developed or used by a standard setting organization described in paragraph (2).
(Pub. L. 89–329, title I, §143, as added Pub. L. 105–244, title I, §101(a), Oct. 7, 1998, 112 Stat. 1615.)
Prior sections 1018b to 1018f were omitted in the general amendment of this subchapter by Pub. L. 102–325.
Section 1018b, Pub. L. 89–329, title I, §143, as added Pub. L. 100–418, title VI, §6201, Aug. 23, 1988, 102 Stat. 1515, related to use of funds.
Section 1018c, Pub. L. 89–329, title I, §144, as added Pub. L. 100–418, title VI, §6201, Aug. 23, 1988, 102 Stat. 1515; Pub. L. 101–610, title II, §221(a), (b), Nov. 16, 1990, 104 Stat. 3180, related to applications.
Section 1018d, Pub. L. 89–329, title I, §145, as added Pub. L. 100–418, title VI, §6201, Aug. 23, 1988, 102 Stat. 1516, related to technical assistance and coordination contracts.
Section 1018e, Pub. L. 89–329, title I, §146, as added Pub. L. 100–418, title VI, §6201, Aug. 23, 1988, 102 Stat. 1516; Pub. L. 101–305, §5, May 30, 1990, 104 Stat. 258; Pub. L. 101–610, title II, §221(c), Nov. 16, 1990, 104 Stat. 3180, related to authorization of appropriations.
Section 1018f, Pub. L. 89–329, title I, §147, as added Pub. L. 100–418, title VI, §6201, Aug. 23, 1988, 102 Stat. 1516, defined "public community agency", "institution of higher education" and "Secretary".