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§ 1018a. Procurement flexibility
(a)
Procurement authority
Subject to the authority of the Secretary, the Chief Operating Officer of a PBO may exercise the authority of the Secretary to procure property and services in the performance of functions managed by the PBO. For the purposes of this section, the term “PBO” includes the Chief Operating Officer of the PBO and any employee of the PBO exercising procurement authority under the preceding sentence.
(b)
In general
Except as provided in this section, the PBO shall abide by all applicable Federal procurement laws and regulations when procuring property and services. The PBO shall—
(c)
Service contracts
(1)
Performance-based servicing contracts
The Chief Operating Officer shall, to the extent practicable, maximize the use of performance-based servicing contracts, consistent with guidelines for such contracts published by the Office of Federal Procurement Policy, to achieve cost savings and improve service.
(2)
Fee for service arrangements
The Chief Operating Officer shall, when appropriate and consistent with the purposes of the PBO, acquire services related to the subchapter IV of this chapter and part
C of subchapter
I of chapter
34 of title
42 delivery system from any entity that has the capability and capacity to meet the requirements for the system. The Chief Operating Officer is authorized to pay fees that are equivalent to those paid by other entities to an organization that provides an information system or service that meets the requirements of the PBO, as determined by the Chief Operating Officer.
(d)
Two-phase source-selection procedures
(1)
In general
The PBO may use a two-phase process for selecting a source for a procurement of property or services.
(2)
First phase
The procedures for the first phase of the process for a procurement are as follows:
(A)
Publication of notice
The contracting officer for the procurement shall publish a notice of the procurement in accordance with section
416 of title
41 and subsections (e), (f), and (g) of section
637 of title 15, except that the notice shall include only the following:
(i)
A general description of the scope or purpose of the procurement that provides sufficient information on the scope or purpose for sources to make informed business decisions regarding whether to participate in the procurement.
(B)
Information submitted by offerors
Each offeror for the procurement shall submit basic information, such as information on the offeror’s qualifications, the proposed conceptual approach, costs likely to be associated with the proposed conceptual approach, and past performance of the offeror on Federal Government contracts, together with any additional information that is requested by the contracting officer.
(C)
Selection for second phase
The contracting officer shall select the offerors that are to be eligible to participate in the second phase of the process. The contracting officer shall limit the number of the selected offerors to the number of sources that the contracting officer determines is appropriate and in the best interests of the Federal Government.
(e)
Use of simplified procedures for commercial items
Whenever the PBO anticipates that commercial items will be offered for a procurement, the PBO may use (consistent with the special rules for commercial items) the special simplified procedures for the procurement without regard to—
(2)
the expiration of the authority to use special simplified procedures under section 4202(e) of the Clinger-Cohen Act of 1996 (110 Stat. 654; 10 U.S.C. 2304 note ).
(f)
Flexible wait periods and deadlines for submission of offers of noncommercial items
(1)
Authority
In carrying out a procurement, the PBO may—
(g)
Modular contracting
(1)
In general
The PBO may satisfy the requirements of the PBO for a system incrementally by carrying out successive procurements of modules of the system. In doing so, the PBO may use procedures authorized under this subsection to procure any such module after the first module.
(2)
Utility requirement
A module may not be procured for a system under this subsection unless the module is useful independently of the other modules or useful in combination with another module previously procured for the system.
(3)
Conditions for use of authority
The PBO may use procedures authorized under paragraph (4) for the procurement of an additional module for a system if—
(A)
competitive procedures were used for awarding the contract for the procurement of the first module for the system; and
(B)
the solicitation for the first module included—
(i)
a general description of the entire system that was sufficient to provide potential offerors with reasonable notice of the general scope of future modules;
(4)
Procedures
If the procurement of the first module for a system meets the requirements set forth in paragraph (3), the PBO may award a contract for the procurement of an additional module for the system using any of the following procedures:
(A)
Sole source
Award of the contract on a sole-source basis to a contractor who was awarded a contract for a module previously procured for the system under competitive procedures or procedures authorized under subparagraph (B).
(5)
Notice requirement
(A)
Publication
Not less than 30 days before issuing a solicitation for offers for a contract for a module for a system under procedures authorized under subparagraph (A) or (B) of paragraph (4), the PBO shall publish in the Commerce Business Daily a notice of the intent to use such procedures to enter into the contract.
(B)
Exception
Publication of a notice is not required under this paragraph with respect to a use of procedures authorized under paragraph (4) if the contractor referred to in that subparagraph (who is to be solicited to submit an offer) has previously provided a module for the system under a contract that contained cost, schedule, and performance goals and the contractor met those goals.
(C)
Content of notice
A notice published under subparagraph (A) with respect to a use of procedures described in paragraph (4) shall contain the information required under section
416
(b) of title
41, other than paragraph (4) of such section, and shall invite the submission of any assertion that the use of the procedures for the procurement involved is not in the best interest of the Federal Government together with information supporting the assertion.
(7)
Simplified source-selection procedures
The PBO may award a contract under any other simplified procedures prescribed by the PBO for the selection of sources for the procurement of modules for a system, after the first module, that are not to be procured under a contract awarded on a sole-source basis.
(h)
Use of simplified procedures for small business set-asides for services other than commercial items
(i)
Guidance for use of authority
(1)
Issuance by PBO
The Chief Operating Officer of the PBO, in consultation with the Administrator for Federal Procurement Policy, shall issue guidance for the use by PBO personnel of the authority provided in this section.
(2)
Guidance from OFPP
As part of the consultation required under paragraph (1), the Administrator for Federal Procurement Policy shall provide the PBO with guidance that is designed to ensure, to the maximum extent practicable, that the authority under this section is exercised by the PBO in a manner that is consistent with the exercise of the authority by the heads of the other performance-based organizations.
(j)
Limitation on multiagency contracting
No department or agency of the Federal Government may purchase property or services under contracts entered into or administered by a PBO under this section unless the purchase is approved in advance by the senior procurement official of that department or agency who is responsible for purchasing by the department or agency.
(k)
Laws not affected
Nothing in this section shall be construed to waive laws for the enforcement of civil rights or for the establishment and enforcement of labor standards that are applicable to contracts of the Federal Government.
(l)
Definitions
In this section:
(3)
Sole-source basis
The term “sole-source basis”, with respect to an award of a contract, means that the contract is awarded to a source after soliciting an offer or offers from, and negotiating with, only that source.
(5)
Special simplified procedures
The term “special simplified procedures” means the procedures applicable to purchases of property and services for amounts not greater than the simplified acquisition threshold that are set forth in the Federal Acquisition Regulation pursuant to section
253
(g)(1)(B) of title
41 and section
427
(a)(1) of title
41.
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