the review of each such proposed decision, at the initial stage of the delegation process when an agency submits a written appeal to OMB to overturn the Administrator's denial of an agency procurement request (APR), unless the President otherwise directs. Thus, the authority of OMB is limited to reviewing a decision by the Administrator of General Services regarding whether or not he will provide the automatic data processing at issue, or whether or not he will delegate the authority to lease, purchase, or maintain the automatic data processing equipment. Now it clearly is not, although in fact it never was, within OMB's province to determine whether or not a given procurement is or is not one for automatic data processing equipment. The provisions of section 759, title 40, United States Code, apply of their own accord, so that when the question of the applicability of those provisions is before the General Services Board of Contract Appeals, it is to decide the question. THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS The General Services Administration Board of Contract Appeals (Board) has had jurisdiction over protests for nearly 21 months. The Board has been well tested in this interval, with nearly 300 protest actions filed. To date it has lived up to, and surpassed, the expectations expressed when the determination was made to grant it protest jurisdiction: The conferees recognize that these provisions provide a unique and innovative method of handling protests of a highly technical and complex nature. The conferees believe that the Board is well equipped to provide timely resolution of conflicts between the procuring agencies and the suppliers of computer products and services. To avoid disrupting legitimate procurements, and especially to prevent protest actions taken in bad faith from interrupting contract performance, the Board is authorized to dismiss at any point in the process any protest action that it determines to be frivolous or which, on its face, does not state a valid basis for the protest. (H.R. Conf. Rept. No. 861, 98th Cong., 2d Sess. 1431 (1984).) The "unique and innovative method of handling protests" involves the Board's de novo standard of review of contracting officer decisions questioned by interested parties alleging a violation of statute, regulation, or delegation of procurement authority. Further, the Board has permitted discovery to the extent necessary to assure that the record before it contains the relevant and pertinent facts necessary to properly decide the issues raised, all while rendering final decisions on initial protest actions on an average of approximately 20 working days, were below the statutory 45-workingday period. With the Board, vendors are far better assured that the Federal procurement system has treated them fairly and honestly, without the agency running slipshod over statutes and regulations, while agencies are better able to reap the benefits of competition. Despite the soundness of the Board, and the benefits that have resulted from its involvement, additional safeguards are necessary to prevent the undermining of the Board's authority and jurisdiction. nishing of a product that is performed or produced making significant use of ADPE. Subsection 822(a)(2)(B) specifically includes within the definition of automatic data processing equipment computers; ancillary equipment; software, firmware, and similar procedures; and services (including support services). In modern systems, commercially available software and/or firmware are often alternatives to hardware components. The term "services" includes services that provide support to the operation of such systems, including maintenance services, supplies, and services that create or maintain software or other similar procedures. Also included within the definition of automatic data processing equipment are related resources as defined in regulations to be issued by the Administrator of General Services. The intent of including these elements within the definition of automatic data processing equipment is to encourage Federal agencies to plan for and manage their information systems as entities, rather than separately managing elements of such systems. Subsection 822(a)(3) specifically excludes from the definition of automatic data processing equipment acquired under a Federal contract that is incidental to the performance of a Federal contract; certain equipment not normally associated with automatic data processing (radar, sonar, radio, or television); certain automatic data processing equipment and services of the Department of Defense as described in 10 U.S.C. 2315; and automatic data processing equipment and services of the Central Intelligence Agency. Under section 111, the Administrator is authorized to issue regulations to establish circumstances where the authority to procure ADPE under this section is delegated automatically to the Departments and agencies. The Administrator has issued such regulations in the past, called the Federal Information Resource Management Regulations. It is intended that these regulations establish such thresholds and circumstances where automatic delegations will be made so as to focus GSA review only on the most important uses of ADPE. Subsection 822(b) amends Section 111(b) of the Federal Property and Administrative Services Act to make clear that the Administrator of General Services has the authority to delegate the lease, purchase, or maintenance of automatic data processing equipment to agency senior officials who are designated pursuant to the Paperwork Reduction Act and to encourage him to make such delegations when a Federal agency meets certain requirements. Such delegations may be made where an agency senior official is determined by the Administrator to be sufficiently independent of program responsibility and to have sufficient experience, resources, and ability to carry out procurements in accordance with Section 111 of the Federal Property and Administrative Services Act. This will enable the Administrator to grant such authority for all procurements for a period of time rather than on a case-by-case basis. For example, delegation of such authority could be made on an annual basis for a designated organization under an approved acquisition plan. Such delegations would be limited to agencies that demonstrate viable planning and management of their use of automatic data processing equipment. These delegations should be lim ited principally to fully competitive procurements. Agencies that receive these delegations must remain in full compliance with the rules and regulations promulgated by the Administrator. Furthermore, any delegation would not preclude the Administrator from reviewing individual procurement requests or revoking a delegation entirely or with regard to a specific matter. Section 825 clarifies the protest jurisdiction, authority, and status of the General Services Administration Board of Contract Appeals (Board). It is the intent of this section to eliminate the misunderstandings created by Electronic Data Systems Federal Corp. v. General Services Administration Board of Contract Appeals, 792 F.2d 1569 (Fed. Cir. 1986). Thus, with the amended language (1) the Board's protest jurisdiction extends to any procurement which is subject to the Brooks Act (40 U.S.C. 759), which includes those procurements subject to a delegation of procurement authority, (2) the Board expressly receives the authority to determine whether or not a procurement is subject to the Brooks Act (40 U.S.C. 759), and (3) proceedings, decisions, and orders of the Board issued pursuant to this subsection (40 U.S.C. 759(f)) are not subject to interlocutory appeal or review. Additionally, the Board's authority to review regulations to determine their consistency with applicable statutes is clarified. Further, when determining whether or not a protested procurement is subject to the Brooks Act (40 U.S.C. 759), while the Board may seek the comments of OMB or other agencies, including the General Services Administration and its Administrator, such comments are not binding upon the Board. Amendment No. 58: Deletes a provision proposed by the House regarding Tacoma, Washington. This provision is included as Section 524 of Amendment No. 12. Amendment No. 59: Reported in disagreement. FEDERAL PAY RAISE AUTHORITY Amendment No. 61: Restores language stricken by the Senate that provides authority for increasing civilian and military pay by three percent in lieu of the President's proposed increase of four percent for military personnel and two percent for civilian workers. This action is consistent with assumptions included in the fiscal year 1987 Congressional Budget Resolution. Amendment No. 62: Deletes a provision proposed by the Senate regarding naming a building in Aiken, South Carolina. This provision is included as Section 525 of Amendment No. 12. Amendment No. 63: Deletes language proposed by the Senate which would provide for the acquisition of lands and development of a mainland tour boat facility for Fort Sumter National Monument, SC. This authorization is contained within Amendment No. 8. Amendment No. 75: Deletes a provision proposed by the Senate regarding certain pre-inspection activities. The INS portion of this amendment is addressed in Amendment No. 2. Amendment No. 76: Deletes a provision proposed by the Senate regarding the Tax Reform Act. Amendment No. 81: Deletes a provision proposed by the Senate regarding designated statistical areas. This provision is included as Section 526 of Amendment No. 12. Amendment No. 85: Deletes a provision proposed by the Senate regarding an annuity for a former Senator. This provision is i cluded as Section 527 of Amendment No. 12. Amendment No. 93: Deletes a provision proposed by the Senate regarding an amendment of the Internal Revenue Code. LEGISLATIVE HISTORY H.R. 5294 1 HOUSE REPORTS: No. 99-723 (Comm. on Appropriations), and No. 99-1005 (Comm. of Conference). SENATE REPORT: No. 99-406 (Comm. on Appropriations). August 1, considered by House. August 6, passed House. August 14, reported in the Senate. H.J. RES. 738 HOUSE REPORTS: No. 99-831 (Comm. on Appropriations), and No. 99-1005 (Comm. of Conference). SENATE REPORT: No. 99-500 (Comm. on Appropriations). September 25, passed House. September 29, reported in the Senate. October 3, passed Senate, amended. October 6, House agreed to conference with Senate. 1 The Treasury, Postal Service and General Government Appropriations Act, 1987 (H.R. 5294) was not separately approved by the Congress, since the bill was enacted as a part of the continuing resolution. о For sale by the Superintendent of Documents, Congressional Sales Office U.S. Government Printing Office, Washington, DC 20402 67-500 (72) |