Federal Acquisition Reform Act of 1995

Section 810 - Prompt Resolution of Audit Recommendations Maximum time for agency head to make a management decision on findings and recommendations in a IG report in six months. Final action on IG recommendations must be taken within 12 months of the report date. Actions remaining incomplete after 12 months will be included in the IG's semiannual report.

Division D - Federal Acquisition Reform Section 4001 - Short Title This will be called the "Federal Acquisition Reform Act of 1995" (FARA).

Title XLI - Competition

Section 4101 - Efficient Competition The standard of full and open competition is moderated by use of methods "consistent with the need to efficiently fulfill the government's requirements."

Changes the minimum dollar value for public posting from $5,000 to $10,000 for DoD (civilian agencies were at $10,000 already.)

Section 4102 - Efficient Approval Procedures Span of approval authority for justification for other than full and open competition (JOFOC) by the Competition Advocate raised from $100,000 - $1,000,000 to $500,000 - $10,000,000.

Span of approval authority for JOFOC by the Head of the Contracting Activity raised from $1,000,000 - $10,000,000 to $10,000,000 - $50,000,000.

Threshold for JOFOC approval by the Senior Procurement Executive is set at $50,000,000.

Section 4103 - Efficient Competitive Range Determinations Competitive range permitted to be limited to the number of offerors at which an efficient competition can be conducted.

Section 4104 - Preaward Debriefing Offerors omitted from the competitive range have three days to request a debriefing. The contracting officer must make every effort to conduct debriefing soon, but may refuse. If an offeror is refused Preaward debriefing, then a postaward debriefing is mandatory. Use of alternative dispute resolution techniques encouraged to avoid protests.

Section 4105 - Design-Build Selection Procedures If a determination is made that it is appropriate, two-phase selection procedures may be used for design and construction. Criteria for use set forth as: three or more offers expected; design work must be done before cost proposal can be developed; substantial expense to prepare proposal. Other factors to be considered: definition of project requirements; time constraints; capability of expected offerors; suitability of procedure to project; capability of agency to conduct two-phase selection. After developing a statement of work, phase one of the procedure is to solicit proposals on technical approach and qualifications. Offerors are evaluated as set forth in the solicitation and only those most highly qualified are requested to submit phase two proposals, which include detailed design or cost information. Maximum number of phase two applicants is five.

Title XLII - Commercial Items Section 4201 - Commercial Item Exception to Requirement for Certified Cost or Pricing Data Acquisition of commercial item is exempted for certified cost or pricing data, regardless of dollar value. Modification of contracts for commercial items are also exempted, provided that the modification does not change the basic nature of its commerciality. Data other than certified cost or pricing data may be required, unless there is adequate price competition. Data requests are limited by reasonableness, limited in scope, and exempt from disclosure under the Freedom of Information Act.

Section 4203 - Inapplicability of Certain Procurement Laws to Commercially Available Off-the-Shelf Items The FAR is to list the provisions of law inapplicable to purchases of commercially available off-the-shelf items. The list may not include the Small Business Act, bid protest procedures, a law which contains civil or criminal penalties, or a [future] law that specifically exempts itself from being listed. A commercially available off-the-shelf item is a commercial item sold in substantial quantities to the public that is offered to the Government without modification.

Section 4204 - Amendment of Commercial Items Definition The portion of the definition referring to services is amended to include market prices ("Services...sold competitively based on...catalog and market prices...")

Section 4205 - Inapplicability of Cost Accounting Standards to Contracts and Subcontracts for Commercial Items Contracts for commercial items are not subject to cost accounting standards promulgated by the Cost Accounting Standards Board.

Title XLIII - Additional Reform Provisions, Subtitle A - Additional Acquisition Reform Provisions

Section 4301 - Elimination of Certain Certification Requirements Requirement for contractor certification of compliance with the Drug-Free Workplace Act is repealed. Within 210 days, the OFPP Administrator is to issue a proposed rule to remove from the FAR all certifications that are not specifically imposed by law. Exceptions must be justified by the FAR Council in writing and approved by the Administrator. Each executive agency is purge certifications from agency procurement regulations within 210 days. Exceptions must be approved by the Senior Procurement Executive. New certification requirements may not be imposed except by statute or with justification and approval as above.

Section 4302 - Authorities Conditioned on FACNET Capability FASA allowed the OFPP Administrator to conduct tests of innovative practices, but only at agencies that had full FACNET Certification. The FACNET condition was removed. Use of $100,000 simplified acquisition threshold is not tied to FACNET implementation until 12/31/99, when full FACNET will be required in order to take advantage of the higher threshold.

Section 4303 - International Competitiveness DoD only - section deals with arms export.

Section 4304 - Procurement Integrity The statute has been completely rewritten, and eight related laws have been repealed. The changes are very complex and intertwined; this summary just skims the surface. No certifications by contractor or government personnel are required. Disclosure of bid or proposal information or source selection information prior to award is prohibited. Disclosure prohibition applies to government employees and persons acting on behalf of the Government. Obtaining such information is also prohibited; this applies to all persons. The bill includes a detailed list of actions be taken upon receipt of an offer of non-federal employment from a competing contractor by a Government employee substantially and personally involved in an acquisition above the simplified purchase threshold. Compensations from a contractor may not be accepted by a former Government employee for one year after certain specified actions, generally dealing with acquisition exceeding $10,000,000. Criminal and administrative penalties apply to violators and are specified in the bill. Protests based on violations of procurement integrity will only be heard if the protestor reported the violation to the agency within 14 days of discovery of the violation.

Section 4305 - Further Acquisition Streamlining Provisions The OFPP purpose statement was changed to include promoting efficiency and effectiveness. Until now, OFPP has been re-established every year; this bill makes it a 'permanent' office.

Section 4306 - Value Engineering All agencies are required to establish and maintain a value engineering program, which is defined as "analysis of...programs...services...supplies...performed by qualified agency or contractor personnel, directed at improving performance, reliability, quality, safety, and life cycle costs."

Section 4307 - Acquisition Workforce Not applicable to DoD, but OFPP is tasked to make the civilian and defense requirements comparable. Every agency is to effectively manage its acquisition workforce, including policies and procedures for accession, education, training, career development and performance incentives. The OFPP Administrator will issue policies to promote uniform implementation and evaluate agency programs. A standardized management information system is required. Within agencies, the Senior Procurement Executives (SPEs) will carry out the duties with respect to this section. SPEs must 'ensure' career paths for the acquisition workforce, including identification of education requirements; establishing competencies, critical duties and tasks (based on FAI); establishing mandatory training requirements; and providing for an enhanced system of incentives. There will be specific funding for this. Tuition reimbursements are permitted, including full-time courses of study leading to a degree. Acquisition workforce covers 1102s, 1105s, and "positions in other GS series in which significant acquisition-related functions are performed."

Section 4308 - Demonstration Project Relating to Certain Personnel Management Policies and Procedures Applies to DoD only.

Section 4309 - Cooperative Purchasing Implementation of the FASA provision that allows state, local and Indian governments to use federal supply schedules is delayed pending a Comptroller General assessment of the effects of the law on small business and local dealers, and an GSA consideration of the report.

Section 4310 - Procurement Notice Technical Amendment The synopsis exception for orders placed under requirements contracts is extended to task order contracts and delivery order contracts.

Section 4311 - Micro-purchases Without Competitive Quotations Section is clarified to allow "an employee of an executive agency or a member of the Armed Forces" or make micro-purchases without competition, instead of requiring a contracting officer.

Subtitle B - Technical Amendments

Section 4321 - Amendments Related to Federal Acquisition Streamlining Act of 1994

Section 4322 - Miscellaneous Amendments to Federal Acquisition Laws Theoretically, technical amendments should not contain any new concepts; they adjust cross references, tables of contents and so forth. Since these two sections consist of almost two pages of arcane language in tiny print, they were not reviewed for this summary.

Title XLIV Effective Date and Implementation

Section 4401 - Effective Date and Applicability Changes apply to solicitations issue pursuant to the implementing regulations (i.e., FAR revisions) FAR revisions are due no later than January 1, 1997.

Section 4402 - Implementing Regulations Proposed rules to revise the FAR are required no later than 210 days after enactment; a 60-day public comments period is specified. Final rules are required to be published no later than 330 days after enactment.

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