H 66 The jurisdiction of the Board has been sharply contested because of determinations made by OMB that support service procurements were not covered by the Brooks Act. The Federal Circuit stated that under the language enacted in CICA, the Board has jurisdiction only over procurements actually conducted under the Brooks Act, not those that should have been, but were not. In essence, the Federal Circuit has removed from the Board's jurisdiction in those instances where an agency ignores, or fails to act in accordance with, the tenets of the statute. A procurement is conducted under the authority of the Brooks Act by application of the Act, not by actions or inactions of an agency, particularly one which is a party to a protest. The statute has been amended to clarify this point. If a procurement is subject to the Brooks Act, then a bid protest concerning that procurement may be decided by the Board. Further, for purposes of resolving bid protests, the Board is expressly granted the authority to determine whether or not the Brooks Act is applicable to the given procurement. Hence, the Board has the most fundamental of powers, that to determine its own jurisdiction over a protest before it. The amendments to the statute are also aimed at protecting the timeliness of the Board's protest decisions, while deterring dissatisfied agencies and interested parties from filing interlocutory appeals or actions for review. To this end, proceedings, decisions, and orders of the Board relating to protests are not subject to interlocutory appeal or review. The importance of the Board's responsibilities continues to grow as the Federal Government enters into more contracts subject to the Board's protest authority. In conjunction with this, it is the intent of Congress that the refinements in the statute reveal that expanded authority has been placed in the Board, whose jurisdiction and functions shall be broadly construed so as to effectuate the purposes underlying the original grant of protest jurisdiction to it. Thus, the Board may issue orders and grant other relief in its decisions as may be necessary to ensure compliance with statutes and regulations that foster and require economy and efficiency, and full and open competition. This encompasses the Board's ability to revise procurement authority to order a contract, in whole or in part, terminated for the convenience of the Government, when the Board determines that such an action is in the best interests of the Government following a violation of statute, regulation, or delegation of procurement authority. It is the continued intent of Congress that the Board be provided adequate resources to fulfill its important responsibilities. SECTION BY SECTION ANALYSIS Section 820 amends section 3520 of title 44 to authorize appropriations for OIRA for fiscal years 1987, 1988, and 1989 at a funding level of $5.5 million per year. The funds appropriated under this section must be used to carry out the provisions of the Paperwork Reduction Act, as amended, and for no other purpose. It also requires funds to be appropriated under a separate line item account expressly for the Office. Finally, it restricts the use of the funds appropriated under this section to functions that are specifi cally authorized or required by the Paperwork Reduction Act, as amended. For the purposes of this Act, the review of a rule or regulation by the Office is specifically authorized or required by the Act only to the extent that such review is for the sole purpose of reviewing an information collection request contained in or derived from such rule or regulation. Section 821(a) amends section 110 of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 757) to combine the existing Automatic Data Processing and Federal Telecommunications Funds into a consolidated Information Technology Fund to be administered by the Administrator of General Services. This section also authorizes the Administrator to enter into multiyear contracts for periods of up to 5 years, provided such procurements are fully competitive and that funds are available and adequate for the payments of the costs of such contracts for the first fiscal year. Section 821(b) amends statutes to conform with the consolidated information technology fund. Section 822 is intended to clarify application of Section 111 of the Federal Property and Administrative Services Act of 1949. It adds a definition of automatic data processing equipment which provides an operationally effective way of evaluating when such equipment is to be acquired, used, or managed in accordance with the Federal Property and Administrative Services Act. As technology has evolved, the lines between automatic data processing equipment, communications, software, firmward, and other equipment related to the operation of automated systems and subsystems have become blurred. This definition is intended to clarify management and operational responsibilities over the full range of resources used in the creation and operations of automated systems and subsystems. It is important to note that this statutory definition reflects the merging of ADP and communications technologies. Inasmuch as technology continues to evolve rapidly, the statutory definition is intended to establish the automatic data processing resources which are included within the meaning of the section, while preserving for the Administrator of General Services the authority to modify the definition by the issuance of appropriate regulations as technologies further develop. ADP resources of a contractor or vendor of goods and services, including the acquisition, use, or management of such resources, is not covered by this section. Therefore, contractors and vendors are not required under this section to seek authority from GSA before they acquire ADPE goods and services. Subsection 822(a)(2)(A) defines "automatic data processing equipment" (ADPE) to mean any equipment or interconnected system or subsystems of equipment that are used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching, interchange, transmission, or reception of data or information, including communications. Except as otherwise provided by statute, all procurements of ADPE by Federal agencies are subject to section 111 of the Federal Property Act. Similarly, procurements of ADPE under contract with a Federal agency are also subject to the Act if the contract either requires the use of such equipment or requires the performance of a service or the fur 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 included 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. 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