CHAPTER 11 - ESTABLISHMENT OF OFFICE AND AUTHORITY AND FUNCTIONS OF ADMINISTRATOR
Title 41 > CHAPTER 11
Sections (18)
§ 1101 Office of Federal Procurement Policy
(a) Organization.— There is an Office of Federal Procurement Policy in the Office of Management and Budget.
(b) Purposes.— The purposes of the Office of Federal Procurement Policy are to— provide overall direction of Government-wide procurement policies, regulations, procedures, and forms for executive agencies; and promote economy, efficiency, and effectiveness in the procurement of property and services by the executive branch of the Federal Government.
(c) Authorization of Appropriations.— Necessary amounts may be appropriated each fiscal year for the Office of Federal Procurement Policy to carry out the responsibilities of the Office for that fiscal year.
“SECTION 1 SHORT TITLE.
“This Act may be cited as the ‘Promoting Rigorous and Innovative Cost Efficiencies for Federal Procurement and Acquisitions Act of 2021’ or the ‘PRICE Act of 2021’.
“SEC. 2 FINDINGS.
“Congress finds that— small business participation in the Federal marketplace is key to ensuring a strong industrial base; the Business Opportunity Development Reform Act of 1988 ( Public Law 100–656 ) [see Tables for classification] sets forth the requirement for the President to establish Government-wide goals for procurement contracts awarded to small businesses; each year, the Small Business Administration works with each Federal agency to set their respective contracting goals and publishes a scorecard to ensure that the total of all Federal agency goals meets the required targets for the Federal Government; the Department has received among the highest scorecard letter grades 10 years in a row and is the largest Federal agency to have such a track record; in virtually every segment of the economy of the United States, including the homeland security community, there are small businesses working to support the mission and playing a critical role in delivering efficient and innovative solutions to the acquisition needs of the Federal Government; the Procurement Innovation Lab of the Department— is aimed at experimenting with innovative acquisition techniques across the Homeland Security Enterprise; provides a forum to test new ideas, share lessons learned, and promote best practices; fosters cultural changes that promote innovation and managed risk taking through a continuous cycle of testing, obtaining feedback, sharing information, and retesting where appropriate; and aims to make the acquisition process more smooth and innovative within the construct of the Federal Acquisition Regulation for both the Federal Government and contractors; and despite progress in the adoption of new and better business practices by many Federal agencies, the overall adoption of modernized business practices and advanced technologies across the Federal Government remains slow and uneven.
“SEC. 3 DEFINITIONS.
“In this Act: The term ‘Administrator’ means the Administrator for Federal Procurement Policy. The term ‘appropriate congressional committees’ means— the Committee on Homeland Security and Governmental Affairs and the Committee on Small Business and Entrepreneurship of the Senate; and the Committee on Homeland Security, the Committee on Oversight and Reform [now Committee on Oversight and Accountability], and the Committee on Small Business of the House of Representatives. The term ‘Council’ means the Chief Acquisition Officers Council established under section 1311 of title 41 , United States Code. The term ‘Department’ means the Department of Homeland Security. The term ‘Homeland Security Enterprise’ has the meaning given the term in section 2211(h) of the Homeland Security Act of 2002 ( 6 U.S.C. 661(h) ) [see 6 U.S.C. 650(11) ]. The term ‘scorecard’ means the scorecard described in section 868(b) of the National Defense Authorization Act for Fiscal Year 2016 [ Pub. L. 114–92 ] ( 15 U.S.C. 644 note) [now 15 U.S.C. 644(y)(6) ]. The term ‘Secretary’ means the Secretary of Homeland Security. The term ‘small business’ means— a qualified HUBZone small business concern, a small business concern, a small business concern owned and controlled by service-disabled veterans, or a small business concern owned and controlled by women, as those terms are defined in section 3 of the Small Business Act ( 15 U.S.C. 632 ); a small business concern owned and controlled by socially and economically disadvantaged individuals, as defined in section 8(d)(3)(C) of the Small Business Act ( 15 U.S.C. 637(d)(3)(C) ); or a small business concern unconditionally owned by an economically disadvantaged Indian tribe or an economically disadvantaged Native Hawaiian organization that qualifies as a socially and economically disadvantaged small business concern, as defined in section 8(a)(4) of the Small Business Act ( 15 U.S.C. 637(a)(4) ). The term ‘Under Secretary’ means the Under Secretary for Management of the Department.
“SEC. 4 PROCUREMENT INNOVATION LAB REPORT.
(“(a) Report.— The Under Secretary shall publish an annual report on a website of the Department on Procurement Innovation Lab projects that have used innovative techniques within the Department to accomplish— improving or encouraging better competition; reducing time to award; cost savings; better mission outcomes; or meeting the goals for contracts awarded to small business concerns under section 15(g) of the Small Business Act ( 15 U.S.C. 644(g) ).
(“(b) Education.— The Under Secretary shall develop and disseminate guidance and offer training for contracting officers, contracting specialists, program managers, and other personnel of the Department, as determined appropriate by the Under Secretary, concerning when and how to use the innovative procurement techniques of the Department.
(“(c) Best Practices.— The Under Secretary shall share best practices across the Department and make available to other Federal agencies information to improve procurement methods and training, as determined appropriate by the Under Secretary.
(“(d) Sunset.— This section shall cease to be effective on the date that is 3 years after the date of enactment of this Act [ Feb. 22, 2022 ].
“SEC. 5 COUNCIL.
(“(a) Establishment.— Not later than 45 days after the date of enactment of this Act [ Feb. 22, 2022 ], the Administrator shall convene the Council to examine best practices for acquisition innovation in contracting in the Federal Government, including small business contracting in accordance with the goals established under section 15(g) of the Small Business Act ( 15 U.S.C. 644(g) ).
(“(b) Working Group.— The Council may form a working group to address the requirements of this section, which, if formed, shall— be chaired by the Administrator or a designee of the Administrator; and be composed of— the Chief Procurement Officer of the Department; Council members from— the General Services Administration; the Department of Defense; the Department of the Treasury; the Department of Veterans Affairs; the Department of Health and Human Services; the Small Business Administration; and such other Federal agencies as determined by the chair of the Council from among Federal agencies that have demonstrated significant, sustained progress using innovative acquisition practices and technologies, including for small business contracting, during each of the 3 years preceding the date of enactment of this Act; and other employees, as determined appropriate by the chair of the Council, of Federal agencies with the requisite senior experience to make recommendations to improve Federal agency efficiency, effectiveness, and economy, including in promoting small business contracting.
(“(c) Duties of the Council.— The Council, or a working group formed under subsection (b), shall— convene not later than 90 days after the date of enactment of this Act and thereafter on a quarterly basis until the Council submits the report required under subsection (d)(1); and conduct outreach with the workforce and the public in meeting the requirements under subsection (d)(1).
(“(d) Report.— Not later than 1 year after the date of enactment of this Act, the Council shall submit to the appropriate congressional committees a report that describes— innovative acquisition practices and applications of technologies that have worked well in achieving better procurement outcomes, including increased efficiency, improved program outcomes, better customer experience, and meeting or exceeding the goals under section 15(g) of the Small Business Act ( 15 U.S.C. 644(g) ), and the reasons why those practices have succeeded; steps to identify and adopt transformational commercial business practices, modernized data analytics, and advanced technologies that allow decision making to occur in a more friction-free buying environment and improve customer experience; and any recommendations for statutory changes to accelerate the adoption of innovative acquisition practices. Not later than 18 months after the date of enactment of this Act, the Administrator shall brief the appropriate congressional committees on the means by which the findings and recommendations of the report have been disseminated under paragraph (3). To promote more rapid adoption of acquisition best practices, the Administrator shall— publish the report required under paragraph (1) on the website of the Office of Management and Budget and on the Innovation Hub on the Acquisition Gateway or any successor Government-wide site available for increasing awareness of resources dedicated to procurement innovation; and encourage the head of each Federal agency to maintain a site on the website of the Federal agency for acquisition and contracting professionals, program managers, members of the public, and others as appropriate that is— dedicated to acquisition innovation; and identifies— resources, including the acquisition innovation advocate and industry liaison of the Federal agency; learning assets for the workforce, including the findings and recommendations made in the report required under paragraph (1); events to build awareness and understanding of innovation activities; award recognition programs and recent recipients; and upcoming plans to leverage innovative practices and technologies.
(“(e) Experts.— In carrying out the duties of the Council under this section, the Council is encouraged to consult with governmental and nongovernmental experts.
(“(f) Termination.— The duties of the Council as set forth in this section shall terminate 30 days after the date on which the Council conducts the briefing required under subsection (d)(2).”
§ 1102 Administrator
(a) Head of Office.— The head of the Office of Federal Procurement Policy is the Administrator for Federal Procurement Policy.
(b) Appointment.— The Administrator is appointed by the President, by and with the advice and consent of the Senate.
§ 1121 General authority
(a) Overall Direction and Leadership.— The Administrator shall provide overall direction of procurement policy and leadership in the development of procurement systems of the executive agencies.
(b) Federal Acquisition Regulation.— To the extent that the Administrator considers appropriate in carrying out the policies and functions set forth in this division, and with due regard for applicable laws and the program activities of the executive agencies, the Administrator may prescribe Government-wide procurement policies. The policies shall be implemented in a single Government-wide procurement regulation called the Federal Acquisition Regulation.
(c) Policies To Be Followed by Executive Agencies.— The policies implemented in the Federal Acquisition Regulation shall be followed by executive agencies in the procurement of— property other than real property in being; services, including research and development; and construction, alteration, repair, or maintenance of real property. The Administrator shall establish procedures to ensure compliance with the Federal Acquisition Regulation by all executive agencies. The authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement is subject to the authority conferred in this section and sections 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title.
(d) When Certain Agencies Are Unable To Agree or Fail To Act.— In any instance in which the Administrator determines that the Department of Defense, the National Aeronautics and Space Administration, and the General Services Administration are unable to agree on or fail to issue Government-wide regulations, procedures, and forms in a timely manner, including regulations, procedures, and forms necessary to implement prescribed policy the Administrator initiates under subsection (b), the Administrator, with due regard for applicable laws and the program activities of the executive agencies and consistent with the policies and functions set forth in this division, shall prescribe Government-wide regulations, procedures, and forms which executive agencies shall follow in procuring items listed in subsection (c)(1).
(e) Oversight of Procurement Regulations of Other Agencies.— The Administrator, with the concurrence of the Director of the Office of Management and Budget, and with consultation with the head of the agency concerned, may deny the promulgation of or rescind any Government-wide regulation or final rule or regulation of any executive agency relating to procurement if the Administrator determines that the rule or regulation is inconsistent with any policies, regulations, or procedures issued pursuant to subsection (b).
(f) Limitation on Authority.— The authority of the Administrator under this division shall not be construed to— impair or interfere with the determination by executive agencies of their need for, or their use of, specific property, services, or construction, including particular specifications for the property, services, or construction; or interfere with the determination by executive agencies of specific actions in the award or administration of procurement contracts.
§ 1122 Functions
(a) In General.— The functions of the Administrator include— providing leadership and ensuring action by the executive agencies in establishing, developing, and maintaining the single system of simplified Government-wide procurement regulations and resolving differences among the executive agencies in developing simplified Government-wide procurement regulations, procedures, and forms; coordinating the development of Government-wide procurement system standards that executive agencies shall implement in their procurement systems; providing leadership and coordination in formulating the executive branch position on legislation relating to procurement; providing for and directing the activities of the computer-based Federal Procurement Data System (including recommending to the Administrator of General Services a sufficient budget for those activities), which shall be located in the General Services Administration, in order to adequately collect, develop, and disseminate procurement data; and ensuring executive agency compliance with the record requirements of section 1712 of this title ; providing for and directing the activities of the Federal Acquisition Institute established under section 1201 of this title , including recommending to the Administrator of General Services a sufficient budget for such activities. 1 administering section 1703(a) to (i) of this title; establishing criteria and procedures to ensure the effective and timely solicitation of the viewpoints of interested parties in the development of procurement policies, regulations, procedures, and forms; developing standard contract forms and contract language in order to reduce the Federal Government’s cost of procuring property and services and the private sector’s cost of doing business with the Federal Government; providing for a Government-wide award to recognize and promote vendor excellence; providing for a Government-wide award to recognize and promote excellence in officers and employees of the Federal Government serving in procurement-related positions; developing policies, in consultation with the Administrator of the Small Business Administration, that ensure that small businesses, qualified HUBZone small business concerns (as defined in section 31(b) of the Small Business Act), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women are provided with the maximum practicable opportunities to participate in procurements that are conducted for amounts below the simplified acquisition threshold; developing policies that will promote achievement of goals for participation by small businesses, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns (as defined in section 31(b) of the Small Business Act), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women; and completing action, as appropriate, on the recommendations of the Commission on Government Procurement.
(b) Consultation and Assistance.— In carrying out the functions in subsection (a), the Administrator— shall consult with the affected executive agencies, including the Small Business Administration; with the concurrence of the heads of affected executive agencies, may designate one or more executive agencies to assist in performing those functions; and may establish advisory committees or other interagency groups to assist in providing for the establishment, development, and maintenance of a single system of simplified Government-wide procurement regulations and to assist in performing any other function the Administrator considers appropriate.
(c) Assignment, Delegation, or Transfer.— Except as otherwise provided by law, only duties, functions, or responsibilities expressly assigned by this division shall be assigned, delegated, or transferred to the Administrator. The Administrator may make and authorize delegations within the Office of Federal Procurement Policy that the Administrator determines to be necessary to carry out this division. The Administrator may delegate, and authorize successive redelegations of, an authority, function, or power of the Administrator under this division (other than the authority to provide overall direction of Federal procurement policy and to prescribe policies and regulations to carry out the policy) to another executive agency with the consent of the head of the executive agency or at the direction of the President.
§ 1123 Small business concerns
In formulating the Federal Acquisition Regulation and procedures to ensure compliance with the Regulation, the Administrator, in consultation with the Small Business Administration, shall— conduct analyses of the impact on small business concerns resulting from revised procurement regulations; and incorporate into revised procurement regulations simplified bidding, contract performance, and contract administration procedures for small business concerns. ( Pub. L. 111–350, § 3 , Jan. 4, 2011 , 124 Stat. 3687 .)
§ 1124 Tests of innovative procurement methods and procedures
(a) In General.— The Administrator may develop innovative procurement methods and procedures to be tested by selected executive agencies. In developing a program to test innovative procurement methods and procedures under this subsection, the Administrator shall consult with the heads of executive agencies to— ascertain the need for and specify the objectives of the program; develop the guidelines and procedures for carrying out the program and the criteria to be used in measuring the success of the program; evaluate the potential costs and benefits which may be derived from the innovative procurement methods and procedures tested under the program; select the appropriate executive agencies or components of executive agencies to carry out the program; specify the categories and types of products or services to be procured under the program; and develop the methods to be used to analyze the results of the program.
(b) Approval of Executive Agencies Required.— A program to test innovative procurement methods and procedures may not be carried out unless approved by the heads of the executive agencies selected to carry out the program.
(c) Request for Waiver of Law.— If the Administrator determines that it is necessary to waive the application of a provision of law to carry out a proposed program to test innovative procurement methods and procedures under subsection (a), the Administrator shall transmit notice of the proposed program to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate and request that the Committees take the necessary action to provide that the provision of law does not apply with respect to the proposed program. The notification to Congress shall include— a description of the proposed program (including the scope and purpose of the proposed program); the procedures to be followed in carrying out the proposed program; the provisions of law affected and the application of any provision of law that must be waived in order to carry out the proposed program; and the executive agencies involved in carrying out the proposed program.
§ 1125 Recipients of Federal grants or assistance
(a) Authority.— With due regard to applicable laws and the program activities of the executive agencies administering Federal programs of grants or assistance, the Administrator may prescribe Government-wide policies, regulations, procedures, and forms that the Administrator considers appropriate and that executive agencies shall follow in providing for the procurement, to the extent required under those programs, of property or services referred to in section 1121(c)(1) of this title by recipients of Federal grants or assistance under the programs.
(b) Limitation.— Subsection (a) does not— permit the Administrator to authorize procurement or supply support, either directly or indirectly, to a recipient of a Federal grant or assistance; or authorize action by a recipient contrary to State and local law in the case of a program to provide a Federal grant or assistance to a State or political subdivision.
§ 1126 Policy regarding consideration of contractor past performance
(a) Guidance.— The Administrator shall prescribe for executive agencies guidance regarding consideration of the past contract performance of offerors in awarding contracts. The guidance shall include— standards for evaluating past performance with respect to cost (when appropriate), schedule, compliance with technical or functional specifications, and other relevant performance factors that facilitate consistent and fair evaluation by all executive agencies; policies for the collection and maintenance of information on past contract performance that, to the maximum extent practicable, facilitate automated collection, maintenance, and dissemination of information and provide for ease of collection, maintenance, and dissemination of information by other methods, as necessary; policies for ensuring that— offerors are afforded an opportunity to submit relevant information on past contract performance, including performance under contracts entered into by the executive agency concerned, other departments and agencies of the Federal Government, agencies of State and local governments, and commercial customers; and the information submitted by offerors is considered; and the period for which information on past performance of offerors may be maintained and considered.
(b) Information Not Available.— If there is no information on past contract performance of an offeror or the information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance.
§ 1127 Determining benchmark compensation amount
(a) Definitions.— In this section: The term “benchmark compensation amount”, for a fiscal year, is the median amount of the compensation provided for all senior executives of all benchmark corporations for the most recent year for which data is available at the time the determination under subsection (b) is made. The term “benchmark corporation”, with respect to a fiscal year, means a publicly-owned United States corporation that has annual sales in excess of $50,000,000 for the fiscal year. The term “compensation”, for a fiscal year, means the total amount of wages, salary, bonuses, and deferred compensation for the fiscal year, whether paid, earned, or otherwise accruing, as recorded in an employer’s cost accounting records for the fiscal year. The term “fiscal year” means a fiscal year a contractor establishes for accounting purposes. The term “publicly-owned United States corporation” means a corporation— organized under the laws of a State of the United States, the District of Columbia, Puerto Rico, or a possession of the United States; and whose voting stock is publicly traded. The term “senior executives”, with respect to a contractor, means the 5 most highly compensated employees in management positions at each home office and each segment of the contractor.
(b) Determining Benchmark Compensation Amount.— For purposes of section 4304(a)(16) of this title and section 3744(a)(16) of title 10 , the Administrator shall review commercially available surveys of executive compensation and, on the basis of the results of the review, determine a benchmark compensation amount to apply for each fiscal year. In making determinations under this subsection, the Administrator shall consult with the Director of the Defense Contract Audit Agency and other officials of executive agencies as the Administrator considers appropriate.
§ 1128 Maintaining necessary capability with respect to acquisition of architectural and engineering services
The Administrator, in consultation with the Secretary of Defense, the Administrator of General Services, and the Director of the Office of Personnel Management, shall develop and implement a plan to ensure that the Federal Government maintains the necessary capability with respect to the acquisition of architectural and engineering services to— ensure that Federal Government employees have the expertise to determine agency requirements for those services; establish priorities and programs, including acquisition plans; establish professional standards; develop scopes of work; and award and administer contracts for those services. ( Pub. L. 111–350, § 3 , Jan. 4, 2011 , 124 Stat. 3690 .)
§ 1129 Center of excellence in contracting for services
The Administrator shall maintain a center of excellence in contracting for services. The center shall assist the acquisition community by identifying, and serving as a clearinghouse for, best practices in contracting for services in the public and private sectors. ( Pub. L. 111–350, § 3 , Jan. 4, 2011 , 124 Stat. 3690 .)
§ 1130 Effect of division on other law
This division does not impair or affect the authorities or responsibilities relating to the procurement of real property conferred by division C of this subtitle and chapters 1 to 11 of title 40. ( Pub. L. 111–350, § 3 , Jan. 4, 2011 , 124 Stat. 3690 .)
§ 1131 Annual report
The Administrator annually shall submit to Congress an assessment of the progress made in executive agencies in implementing the policy regarding major acquisitions that is stated in section 3103(a) of this title . The Administrator shall use data from existing management systems in making the assessment. ( Pub. L. 111–350, § 3 , Jan. 4, 2011 , 124 Stat. 3690 .)