cerns, development by DOD and GSA of small business contracting and subcontracting programs, publication of proposed procurements in the Commerce Business Daily, and small business set-aside programs 5 U.S.C. § 3109 which authorizes contracts with experts and consultants 50 U.S.C. §§ 1431-1435 which are the extraordinary relief provisions of Pub. L. 85-804 40 U.S.C. § 276c which is the payroll reporting provision of the Copeland Anti-Kickback Act. These particular provisions are singled out here only because they are obvious examples of the types of provisions that could be consolidated in title 41. They are by no means exclusive. The exact parameters of the task will depend on the extent to which other legislation along the lines that we have recommended in this report is enacted. Many of our other recommendations, if followed, would serve as the building blocks for the consolidation of the procurement laws in title 41. Outline of a Consolidated Procurement Statute The possible ways for formulating a consolidated procurement statute are probably infinite. A schematic approach, with examples of the types of provisions appropriate for each section, is shown in the following outline. Existing and proposed statutory provisions are identified for descriptive purposes only. CONSOLIDATED PROCUREMENT LAW SCHEMATIC Cost Accounting Standards Board, 50 U.S.C. Basic Authority for All Agencies Employ experts and consultants, 5 U.S.C. § 3109 Employ architects and engineers, 10 U.S.C. $ 4540 Acquire patents, data, and copyrights, 10 U.S.C. § 2386, etc. Grant rights in patents, data, and copyrights (proposed) Provide Government property and facilities, for example, title IV, Pub. L. 92-204 Provide R&D facilities, 10 U.S.C. § 2353 Transfer R&D equipment to nonprofits, 42 U.S.C. § 1892 Sell facilities to contractor in possession (proposed) Contract for basic and applied research, 10 U.S.C. § 2358 Contract for research and development for 5 years, 10 U.S.C. § 2352 Contract for services for 5 years, 10 U.S.C. § 2306 (g) Enter into grants in lieu of R&D contracts, 42 U.S.C. § 1891 Make advance payments, 10 U.S.C. § 2307 Formalize informal agreements, Pub. L. 85804 Gifts, 50 U.S.C. § 1151 Regulations Regulatory system (proposed) Authority of agency heads generally, 5 U.S.C. § 301 Authority of DOD, 10 U.S.C. § 2202 Organizational Structure Interagency Boards and Authorities Office of Federal Procurement Policy (proposed) Personnel Interagency delegations and transfers, 10 U.S.C. § 2308 Program Authorizations and Appropriations Authorizations Authorizations required before appropriations for DOD vessels, missiles, aircraft, NASA programs, AEC programs, Pub. L. 86-149, § 412(f) as amended, 10 U.S.C. § 133 note, architect-engineer advance planning appropriation authorized, 31 U.S.C. § 723 Multiyear authorization (proposed) Appropriations Annual appropriations to be applied to expenses of year, 31 U.S.C. § 712a No contract in excess or advance of appropriations unless authorized expressly, 31 U.S.C. § 627, 665 (a), 41 U.S.C. § 11 Express appropriations required for buildings, 41 U.S.C. § 12 Express appropriations required for autos and aircraft, 31 U.S.C. § 638a Full building contract authorization if partly funded, 40 U.S.C. § 261 No-year funds for military equipment, public works, R&D, and missiles, 31 U.S.C. $649c No-year funds for public works, 31 U.S.C. § 682 Multiyear funds or contract authority for supplies, services, leases, 10 year utilities, 40 U.S.C. § 481 (a) (3), 5 year service contracts, 10 U.S.C. § 2306 (g) One-year contracts crossing fiscal years for DOD equipment and facilities, maintenance and repair, Pub. L. 91-668, § 807 (f), DOD leases, Pub. L. 91-668, § 807(j), Army fuel, 31 U.S.C. § 668, metered services, 31 U.S.C. §668a, NASA equipment and facilities, repair and maintenance, Pub. L. 91-699 Appropriation Controls Recording of obligations, 31 U.S.C. § 200 (a) (1), (3), (4) Apportionment of appropriations, 31 U.S.C. § 665 (c) Interdepartmental orders as obligations, 31 U.S.C. § 686 Transfer of appropriations for obligation, 10 U.S.C. § 2309 Transfer of appropriations for interdepartmental orders, 31 U.S.C. § 686 (b) Supply, Stock, and Industrial Funds Industrial funds (proposed) Procurement Sources In-house performance vs. contracting-out policy (numerous specific statutes) Interdepartmental procurement and orders, 31 U.S.C. § 686 Debarring Pinkerton-type agencies, 5 U.S.C. § 3108 Contracting Procedures and Elements Award and Selection Procedures Policy on formal advertising, competitive procedures and sole-source negotiation, 10 U.S.C. § 2304, 41 U.S.C. § 252 Formal advertising procedures, 10 U.S.C. § 2305, 41 U.S.C. § 253 Competitive negotiation procedures; determination and findings; solicitations; discussions within competitive range; evaluation factors-order and sources (proposed) Small purchases (proposed) Publication in Commerce Business Daily, 15 U.S.C. § 637(e) Multiyear contracts (proposed) Contract Types Determination and findings for cost-type contracts, 10 U.S.C. § 2306(c) Advance and progress payments, 31 U.S.C. § 529 Assignment of contracts, 31 U.S.C. § 203, 41 U.S.C. § 15 Notice of subcontracts, 10 U.S.C. § 2306 (e) Access to records-agency and GAO, 10 U.S.C. §§ 2306 (f), 2313 Remission of liquidated damages, 10 U.S.C. § 2312 Contract Settlement Act, 41 U.S.C. §§ 101125 R&D vouchers, DOD, 10 U.S.C. § 2355 Adjustments for mistakes in bids, Pub. L. 85-804 Settling patent claims (proposed) Settling breach of contract claims (proposed) Cost, Fee, Profit, Price Limitations Fees for R&D, architect-engineer, cost-plusa-fixed-fee contracts, 10 U.S.C. § 2306(d) Uniform cost accounting standards, Pub. L. 91-379, § 719 Independent research and development, bid and proposal costs, Pub. L. 91-441, § 203 Research cost sharing, Pub. L. 92-78, § 504 Advertising costs, DOD, Pub. L. 91-668, § 834 Cost or pricing data, 10 U.S.C. § 2306(f) Profit policy (proposed) Renegotiation, 50 U.S.C. App. § 1211 Vinson-Trammell Act, 10 U.S.C. § 2382 Advertising rules, 44 U.S.C. §§3702, 3703 Contract Financing and Payments Assignment of claims, 31 U.S.C. § 203, 41 U.S.C. § 15 Advance payments, 31 U.S.C. § 529, 10 U.S.C. § 2307 Guaranteed loans, 50 U.S.C. App. § 2091 Bonds Miller Act-mandatory bonds, 40 U.S.C. § 270a, waiver for cost-type contracts, 40 U.S.C. § 270e Miller Act-discretionary bonds, 40 U.S.C. § 270a (c) Bid bonds-authorized, 10 U.S.C. § 2381 Government Property Authority to provide facilities-appropriation acts, e.g., title IV, Pub. L. 92-204 Authority to provide R&D facilities, 10 U.S.C. § 2353 Sale to contractor in possession (proposed) National industrial reserve, 50 U.S.C. § 451 Wind tunnels, 50 U.S.C. § 512 Nuclear and Extrahazardous Risks R&D indemnification authority, 10 U.S.C. § 2354 Authority under Pub. L. 85-804 Patents, Data, and Copyrights Patents: acquiring rights privately developed, 10 U.S.C. § 2386; authorization and consent, 28 U.S.C. § 1498; settle patent claims data, mandatory requirement, 22 U.S.C. § 2356; settle data infringement claims (proposed) Subcontracts Notification of subcontracts, 10 U.S.C. 10 § 2306 (e) Subcontractor Anti-Kickback Act, 41 U.S.C. § 51 Cost or pricing data requirements, 10 U.S.C. § 2306 (f) Emergency and Mobilization Mandatory orders, 10 U.S.C. §§ 4501, 9501; 50 U.S.C. App. § 468; 50 U.S.C. App. $ 2071 Plant seizures, 10 U.S.C. §§ 4501, 9501; 50 U.S.C. § 468 Transportation facilities seizures, 10 U.S.C. SS 4742, 9742 Material priorities, 50 U.S.C. App. § 2071 Suspension of procurement laws, Pub. L. 85804 Extraordinary contractual authority, Pub. L. 85-804 Contract Settlement Act, 41 U.S.C. § 101 Strategic and critical materials, 50 U.S.C. $ 98 Contract Integrity, Standards of Conduct Contingent fees, 10 U.S.C. § 2306 (f), 41 Anti-gratuities, 10 U.S.C. § 2207 Anti-kickback (subcontracts), 41 U.S.C. § 51 § 2305(d); certification on road contracts, 23 U.S.C. § 112(d); collusive bidding, Maritime Administration contracts, 46 U.S.C. § 1224 Employees of NASA/DOD and contractors annual reporting, 50 U.S.C. § 1436, 42 U.S.C. § 2462 Contractor employment of Navy and Marine Corps officers, 37 U.S.C. § 801 (a) Contracting with government employees, 33 U.S.C. § 725 Miscellaneous Extraordinary contractual authority, Pub. L. 85-804 Recodification of most statutes would involve remedial legislation. However, a number of statutes could be recodified without legislation. For example, 41 U.S.C. § 254a relates to negotiated overhead rates for institutions. It was not enacted as part of the original FPASA and is applicable to DOD, NASA, and the Coast Guard as well as the nondefense agencies. Nevertheless, it was put in chapter 4 of title 41 of the United States Code covering the FPASA provisions, including 41 U.S.C. § 252 (a) which states that the chapter does not apply to DOD, NASA, and the Coast Guard. The present arrangement gives the misleading impression that the section does not govern DOD, NASA, and the Coast Guard. The House Committee on the Judiciary could take the necessary corrective action since it is responsible for editorial management of the United States Code.9 Similarly, 41 U.S.C. § 256a, providing for remission of liquidated damages, is misplaced under chapter 4 since it was specifically enacted in lieu of § 256 for the purpose of placing it outside the scope of FPASA and thereby making it applicable to agencies exempt from FPASA. See note to 41 U.S.C. § 256a. 9 See 1 U.S.C. § 201 et seq. |