NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2002 (P.L. 107-107, approved December 28, 2001) DIVISION A-DEPARTMENT OF TITLE VIII-ACQUISITION POLICY, ACQUISITION MANAGEMENT, MANAGEMENT, AND RELATED MATTERS SEC. 802. [10 U.S.C. 2330 note] PERFORMANCE GOALS FOR PROCUREMENTS OF SERVICES. (a) GOALS. (1) It shall be an objective of the Department of Defense to achieve efficiencies in procurements of services pursuant to multiple award contracts through the use of (A) performance-based services contracting; (B) appropriate competition for task orders under services contracts; (C) program review, spending analyses, and improved management of services contracts. (2) In furtherance of such objective, the Department of Defense shall have the following goals: (A) To increase, as a percentage of all of the individual purchases of services made by or for the Department of Defense under multiple award contracts for a fiscal year (calculated on the basis of dollar value), the volume of the individual purchases of services that are made on a competitive basis and involve receipt of more than one offer from qualified contractors to a percentage as follows: (i) For fiscal year 2003, a percentage not less than 40 percent. (ii) For fiscal year 2004, a percentage not less than 50 percent. (iii) For fiscal year 2011, a percentage not less than 75 percent. (B) To increase, as a percentage of all of the individual purchases of services made by or for the Department of Defense under multiple award contracts for a fiscal year (calculated on the basis of dollar value), the use of performancebased purchasing specifying firm fixed prices for the specific tasks to be performed to a percentage as follows: (i) For fiscal year 2003, a percentage not less than 25 percent. (ii) For fiscal year 2004, a percentage not less than 35 percent. (iii) For fiscal year 2005, a percentage not less than 50 percent. (iv) For fiscal year 2011, a percentage not less than 70 percent. (3) The Secretary of Defense may adjust any percentage goal established in paragraph (2) if the Secretary determines in writing that such a goal is too high and cannot reasonably be achieved. In the event that the Secretary chooses to adjust such a goal, the Secretary shall (A) establish a percentage goal that the Secretary determines would create an appropriate incentive for Department of Defense components to use competitive procedures or performance-based services contracting, as the case may be; and (B) submit to the congressional defense committees a report containing an explanation of the reasons for the Secretary's determination and a statement of the new goal that the Secretary has established. (b)-ANNUAL REPORT.-Not later than March 1, 2002, and annually thereafter through March 1, 2011, the Secretary of Defense shall submit to the congressional defense committees a report on the progress made toward meeting the objective and goals established in subsection (a). Each report shall include, at a minimum, the following information: (1) A summary of the steps taken or planned to be taken in the fiscal year of the report to improve the management of procurements of services. (2) A summary of the steps planned to be taken in the following fiscal year to improve the management of procurements of services. (3) An estimate of the amount that will be expended by the Department of Defense for procurements of services in the fiscal year of the report. (4) An estimate of the amount that will be expended by the Department of Defense for procurements of services in the following fiscal year. (5) Regarding the individual purchases of services that were made by or for the Department of Defense under multiple award contracts in the fiscal year preceding the fiscal year in which the report is required to be submitted, information (determined using the data collection system established under section 2330a of title 10, United States Code) as follows: (A) The percentage (calculated on the basis of dollar value) of such purchases that are purchases that were made on a competitive basis and involved receipt of more than one offer from qualified contractors. (B) The percentage (calculated on the basis of dollar value) of such purchases that are performance-based purchases specifying firm fixed prices for the specific tasks to be performed. (c) DEFINITIONS.-(1) In this section, the terms "individual purchase" and "multiple award contract" have the meanings given such terms in section 803(c) of this Act. "(2) For the purposes of this section, an individual purchase of services is made on a competitive basis only if it is made pursuant to procedures described in paragraphs (2), (3), and (4) of section 803(b) of this Act. SEC. 803. [10 U.S.C. 2304 note] COMPETITION REQUIREMENT FOR PURCHASE OF SERVICES PURSUANT TO MULTIPLE AWARD CONTRACTS. (a) REGULATIONS REQUIRED.-Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall promulgate in the Department of Defense Supplement to the Federal Acquisition Regulation regulations requiring competition in the purchase of services by the Department of Defense pursuant to multiple award contracts. (b) CONTENT OF REGULATIONS.-(1) The regulations required by subsection (a) shall provide, at a minimum, that each individual purchase of services in excess of $100,000 that is made under a multiple award contract shall be made on a competitive basis unless a contracting officer of the Department of Defense (A) waives the requirement on the basis of a determination that (i) one of the circumstances described in paragraphs (1) through (4) of section 2304c(b) of title 10, United States Code, applies to such individual purchase; or (ii) a statute expressly authorizes or requires that the purchase be made from a specified source; and (B) justifies the determination in writing. (2) For purposes of this subsection, an individual purchase of services is made on a competitive basis only if it is made pursuant to procedures that (A) require fair notice of the intent to make that purchase (including a description of the work to be performed and the basis on which the selection will be made) to be provided to all contractors offering such services under the multiple award contract; and (B) afford all contractors responding to the notice a fair opportunity to make an offer and have that offer fairly considered by the official making the purchase. (3) Notwithstanding paragraph (2), notice may be provided to fewer than all contractors offering such services under a multiple award contract described in subsection (c)(2)(A) if notice is provided to as many contractors as practicable. (4) A purchase may not be made pursuant to a notice that is provided to fewer than all contractors under paragraph (3) unless— (A) offers were received from at least three qualified contractors; or (B) a contracting officer of the Department of Defense determines in writing that no additional qualified contractors were able to be identified despite reasonable efforts to do so. (c) DEFINITIONS.-In this section: (1) The term "individual purchase" means a task order, delivery order, or other purchase. (2) The term "multiple award contract" means (A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 2302(2)(C) of title 10, United States Code; (B) a multiple award task order contract that is entered into under the authority of sections 2304a through 2304d of title 10, United States Code, or sections 303H through 303K of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253h through 253k); and (C) any other indefinite delivery, indefinite quantity contract that is entered into by the head of a Federal agency with two or more sources pursuant to the same solicitation. (3) The term "Defense Agency" has the meaning given that term in section 101(a)(11) of title 10, United States Code. (d) APPLICABILITY.-The regulations promulgated by the Secretary pursuant to subsection (a) shall take effect not later than 180 days after the date of the enactment of this Act and shall apply to all individual purchases of services that are made under multiple award contracts on or after the effective date, without regard to whether the multiple award contracts were entered into before, on, or after such effective date. SEC. 804. REPORTS ON MATURITY OF TECHNOLOGY AT INITIATION OF MAJOR DEFENSE ACQUISITION PROGRAMS. (a) REPORTS REQUIRED.-Not later than March 1 of each of years 2003 through 2006, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the implementation of the requirement in paragraph 4.7.3.2.2.2 of Department of Defense Instruction 5000.2, as in effect on the date of enactment of this Act, that technology must have been demonstrated in a relevant environment (or, preferably, in an operational environment) to be considered mature enough to use for product development in systems integration. (b) CONTENTS OF REPORTS.-Each report required by subsection (a) shall (1) identify each case in which a major defense acquisition program entered system development and demonstration during the preceding calendar year and into which key technology has been incorporated that does not meet the technological maturity requirement described in subsection (a), and provide a justification for why such key technology was incorporated; (2) identify_any determination of technological maturity with which the Deputy Under Secretary of Defense for Science and Technology did not concur and explain how the issue has been or will be resolved; and (3) identify each case in which an authoritative decision has been made within the Department of Defense not to con duct an independent technology readiness assessment for a critical technology on a major defense acquisition program and explain the reasons for the decision. (c) MAJOR DEFENSE ACQUISITION PROGRAM DEFINED.—In this section, the term "major defense acquisition program" has the meaning given that term in section 139(a)(2) of title 10, United States Code. SEC. 836. [10 U.S.C. 2302 note] TEMPORARY EMERGENCY PROCUREMENT AUTHORITY ΤΟ FACILITATE THE DEFENSE AGAINST TERRORISM OR BIOLOGICAL OR CHEMICAL ATTACK. (a) INCREASED FLEXIBILITY FOR USE OF STREAMLINED PROCEDURES.-The following special authorities apply to procurements of property and services by or for the Department of Defense for which funds are obligated during fiscal year 2002 and 2003: (1) MICROPURCHASE AND SIMPLIFIED ACQUISITION THRESHOLDS. For any procurement of property or services for use (as determined by the Secretary of Defense) to facilitate the defense against terrorism or biological or chemical attack against the United States (A) the amount specified in subsections (c), (d), and (f) of section 32 of the Office of Federal Procurement Policy Act (41 U.S.C. 428) shall be deemed to be $15,000 in the administration of that section with respect to such procurement; and (B) the term "simplified acquisition threshold" means, in the case of any contract to be awarded and performed, or purchase to be made (i) inside the United States in support of a contingency operation, $250,000; or (ii) outside the United States in support of a contingency operation, $500,000. (2) COMMERCIAL ITEM TREATMENT FOR PROCUREMENTS OF BIOTECHNOLOGY.-For any procurement of biotechnology property or biotechnology services for use (as determined by the Secretary of Defense) to facilitate the defense against terrorism or biological attack against the United States, the procurement shall be treated as being a procurement of commercial items. (b) RECOMMENDATIONS FOR ADDITIONAL EMERGENCY PROCUREMENT AUTHORITY TO SUPPORT ANTI-TERRORISM OPERATIONS.-Not later than March 1, 2002, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report containing the Secretary's recommendations for additional emergency procurement authority that the Secretary (subject to the direction of the President) determines necessary to support operations carried out to combat terrorism. |