[House Report 112-37]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-37
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TO AMEND TITLE 41, UNITED STATES CODE, TO EXTEND THE SUNSET DATE FOR
CERTAIN PROTESTS OF TASK AND DELIVER ORDER CONTRACTS
_______
March 17, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 899]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 899) to amend title 41, United
States Code, to extend the sunset date for certain protests of
task and deliver order contracts, having considered the same,
report favorably thereon without amendment and recommend that
the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 1
Section-by-Section............................................... 2
Explanation of Amendments........................................ 2
Committee Consideration.......................................... 2
Application of Law to the Legislative Branch..................... 2
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 3
Statement of General Performance Goals and Objectives............ 3
Federal Advisory Committee Act................................... 3
Unfunded Mandate Statement....................................... 3
Earmark Identification........................................... 3
Committee Estimate............................................... 3
Budget Authority and Congressional Budget Office Cost Estimate... 3
Changes in Existing Law Made by the Bill as Reported............. 5
Committee Statement and Views
PURPOSE AND SUMMARY
The purpose of this bill is to extend the sunset date to
allow the Government Accountability Office (GAO) to continue to
hear bid protests on civilian agency task and delivery orders
until September 30, 2016.
BACKGROUND AND NEED FOR LEGISLATION
Section 825 of the Ike Skelton National Defense
Authorization Act of for FY 2011 (PL 111-383) extended the
sunset date for GAO bid protests on task and delivery orders
for defense acquisitions until September 30, 2016. It did not
address civilian agency acquisitions. Therefore, this bill is
necessary to align the two procurement systems--defense and
civilian--and alleviate uncertainty in the contracting
community. In addition, allowing protests at the task and
delivery order level increases transparency and accountability,
while providing an alternative to costly litigation.
Extending GAO's jurisdiction to encompass bid protests over
task and delivery orders was a recommendation made in the
January 2007 Report of the Acquisition Advisory Working Group
(commonly referred to as the ``SARA Panel''). The SARA Panel
made the recommendation based on the following findings: (1)
improper use of certain contracting vehicles, (2) a need for
increased competition, (3) the frequency with which agencies
make ``significant purchases of complex services using task and
delivery orders,'' and (4) the desire to increase
transparency.\1\
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\1\Report of the Acquisition Advisory Panel to the Office of
Federal Procurement Policy and the U.S. Cong., available at https://
www.acquisition.gov/comp/aap/documents/Chapter1.pdf (Jan. 2007).
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LEGISLATIVE HISTORY
Section 843 of the National Defense Authorization Act
(NDAA) of 2008 (PL 110-181) expanded the GAO jurisdiction to
hear bid protests by authorizing GAO to hear protests on task
and delivery orders valued in excess of $10 million. This
provision covered both defense (Title 10) and civilian
acquisitions (Title 41). It sunsets in May 2011.
Section-by-Section
Section 1
This bill contains one section which amends 41 U.S.C.
4106(f) to allow GAO to continue to hear bid protests on task
and delivery orders over $10 million until September 30, 2016.
Explanation of Amendments
No amendments were offered to the bill.
Committee Consideration
On March 10, 2011, the Committee met in open session and
ordered reported favorably the bill, H.R. 899, by voice vote, a
quorum being present.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill extends the sunset date to allow the Government
Accountability Office (GAO) to continue to hear bid protests on
civilian agency task and delivery orders until September 30,
2016. As such this bill does not relate to employment or access
to public services and accommodations.
Legislative branch employees and their families, to the
extent that they are otherwise eligible for the benefits
provided by this legislation, have equal access to its
benefits.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 899 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of Rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 899. However, clause 3(d)(3)(B) of that rule provides that
this requirement does not apply when the Committee has included
in its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 899 from the Director of
Congressional Budget Office:
March 16, 2011.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 899, a bill to
amend title 41, United States Code, to extend the sunset date
for certain protests of task and deliver order contracts.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 899--A bill to amend title 41, United States Code, to extend the
sunset date for certain protests of task and deliver order
contracts
H.R. 899 would amend federal law to extend the process for
protesting the awards of certain civilian agency procurements.
Under the legislation, contractors could protest certain task
and delivery order contracts through September 30, 2016.
Task and delivery order contracts authorize deliveries
during the life of the contract without specifying a firm
quantity of supplies or services. Such contracts are often used
when an agency cannot determine the precise number of supplies
or services that will be required. Under current law,
contractors under such orders can protest the award of any
order valued over $10 million, and the Government
Accountability Office (GAO) has exclusive jurisdiction to hear
those protests through May 2011. H.R. 899 would extend those
procedures through September 2016.
Information from GAO and several civilian agencies
indicates that more than 100 cases have been filed to protest
contract awards during the past two years; 50 percent of the
protestors have reported obtaining some form of relief from the
procuring agency. The form of relief can vary from improvements
in the procurement process to reimbursement of the protestors'
costs. Based on that information, CBO expects that complying
with the bill would increase the administrative expenses of
federal agencies for contract personnel, lawyers, and general
administrative overhead. Such expenses would generally be paid
from agencies' salaries and expense budgets, which are subject
to annual appropriation. CBO estimates that such costs would
total a few million dollars over the 2011-2016 period.
Enacting H.R. 899 also could affect direct spending by
agencies not funded through annual appropriations, such as the
Tennessee Valley Authority and the Bonneville Power
Administration; therefore, pay-as-you-go procedures apply. CBO
estimates, however, that any net increase in spending by those
agencies would not be significant. Enacting H.R. 899 would not
affect revenues.
H.R. 899 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
TITLE 41, UNITED STATES CODE
* * * * * * *
SUBTITLE I--FEDERAL PROCUREMENT POLICY
* * * * * * *
CHAPTER 41--TASK AND DELIVERY ORDER CONTRACTS
* * * * * * *
Sec. 4106. Orders
(a) * * *
* * * * * * *
(f) Protests.--
(1) * * *
* * * * * * *
[(3) Effective period.--This subsection shall be in
effect for three years, beginning on the date that is
120 days after January 28, 2008.]
(3) Effective period.--Paragraph (1)(B) and paragraph
(2) of this subsection shall not be in effect after
September 30, 2016.
* * * * * * *