49 U.S.C. § 40110 | General procurement authority

(a)

General .—

In carrying out this part, the Administrator of the Federal Aviation Administration—

(1)

to the extent that amounts are available for obligation, may acquire services or, by condemnation or otherwise, an interest in property, including an interest in airspace immediately adjacent to and needed for airports and other air navigation facilities owned by the United States Government and operated by the Administrator;

(2)

may construct and improve laboratories and other test facilities; and

(3)

may dispose of any interest in property for adequate compensation, and the amount so received shall—

(A)

be credited to the appropriation current when the amount is received;

(B)

be merged with and available for the purposes of such appropriation; and

(C)

remain available until expended.

(b)

Purchase of Housing Units.—

(1)

Authority .—

In carrying out this part, the Administrator may purchase a housing unit (including a condominium or a housing unit in a building owned by a cooperative) that is located outside the contiguous United States if the cost of the unit is $300,000 or less.

(2)

Adjustments for inflation .—

September 30, 1997For fiscal years beginning after , the Administrator may adjust the dollar amount specified in paragraph (1) to take into account increases in local housing costs.

(3)

Continuing obligations .—

section 1341 of title 31Notwithstanding , the Administrator may purchase a housing unit under paragraph (1) even if there is an obligation thereafter to pay necessary and reasonable fees duly assessed upon such unit, including fees related to operation, maintenance, taxes, and insurance.

(4)

Certification to congress .—

The Administrator may purchase a housing unit under paragraph (1) only if, at least 30 days before completing the purchase, the Administrator transmits to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate a report containing—

(A)

a description of the housing unit and its price;

(B)

a certification that the price does not exceed the median price of housing units in the area; and

(C)

a certification that purchasing the housing unit is the most cost-beneficial means of providing necessary accommodations in carrying out this part.

(5)

Payment of fees .—

The Administrator may pay, when due, fees resulting from the purchase of a housing unit under this subsection from any amounts made available to the Administrator.

(c)

Duties and Powers .—

When carrying out subsection (a) of this section, the Administrator of the Federal Aviation Administration may—

(1)

section 1341(a)(1) of title 31 notwithstanding , lease an interest in property for not more than 20 years;

(2)

consider the reasonable probable future use of the underlying land in making an award for a condemnation of an interest in airspace;

(3)

section 3301(a) of title 40 construct, or acquire an interest in, a public building (as defined in ) only under a delegation of authority from the Administrator of General Services; and

(4)

dispose of property under subsection (a)(3) of this section, except for airport and airway property and technical equipment used for the special purposes of the Administration, only under sections 121, 123, and 126 and chapter 5 of title 40.

(d)

Acquisition Management System.—

(1)

In general .—

In consultation with such non-governmental experts in acquisition management systems as the Administrator may employ, and notwithstanding provisions of Federal acquisition law, the Administrator shall develop, implement, and periodically update an acquisition management system for the Administration that addresses the unique needs of the agency and, at a minimum, provides for—

(A)

more timely and cost-effective acquisitions of equipment, services, property, and materials; and

(B)

the resolution of bid protests and contract disputes related thereto, using consensual alternative dispute resolution techniques to the maximum extent practicable.

(2)

Applicability of federal acquisition law .—

The following provisions of Federal acquisition law shall not apply to the acquisition management system developed, implemented, and periodically updated pursuant to paragraph (1):

(A)

Division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41.

(B)

Division B (except sections 1704 and 2303) of subtitle I of title 41.

(C)

Public Law 103–355 section 4705 of title 41 section 4705 of title 41 The Federal Acquisition Streamlining Act of 1994 (). However, shall apply to the acquisition management system developed, implemented, and periodically updated pursuant to paragraph (1). For the purpose of applying to the system, the term “executive agency” is deemed to refer to the Federal Aviation Administration.

(D)

15 U.S.C. 631 The Small Business Act ( et seq.), except that all reasonable opportunities to be awarded contracts shall be provided to small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals.

(E)

The Competition in Contracting Act.

(F)

Subchapter V of chapter 35 of title 31, relating to the procurement protest system.

(G)

The Federal Acquisition Regulation and any laws not listed in subparagraphs (A) through (F) providing authority to promulgate regulations in the Federal Acquisition Regulation.

(3)

Certain provisions of division b (except sections 1704 and 2303) of subtitle i of title 41 .—

Notwithstanding paragraph (2)(B), chapter 21 of title 41 shall apply to the acquisition management system developed, implemented, and periodically updated under paragraph (1) with the following modifications:

(A)

Sections 2101 and 2106 of title 41 shall not apply.

(B)

October 9, 1996 The Administrator shall adopt definitions for the acquisition management system that are consistent with the purpose and intent of the Office of Federal Procurement Policy Act, as in effect on .

(C)

After the adoption of those definitions, the criminal, civil, and administrative remedies provided under division B of subtitle I of title 41 apply to the acquisition management system.

(D)

section 2105(c)(1)(D) of title 41 In the administration of the acquisition management system, the Administrator may take adverse personnel action under in accordance with the procedures contained in the Administration’s personnel management system.

(4)

Commercial products and services .—

In implementing and updating the acquisition management system pursuant to paragraph (1), the Administrator shall, whenever possible—

(A)

describe the requirements with respect to a solicitation for the procurement of supplies or services in terms of—

(i)

functions to be performed;

(ii)

performance required; or

(iii)

essential physical and system characteristics;

(B)

ensure that commercial services or commercial products may be procured to fulfill such solicitation, or to the extent that commercial products suitable to meet the needs of the Administration are not available, ensure that nondevelopmental items other than commercial products may be procured to fulfill such solicitation;

(C)

provide offerors of commercial services, commercial products, and nondevelopmental items other than commercial products an opportunity to compete in any solicitation for the procurement of supplies or services;

(D)

revise the procurement policies, practices, and procedures of the Administration to reduce any impediments to the acquisition of commercial products and commercial services;

(E)

ensure that any procurement of new equipment takes into account the life cycle, reliability, performance, service support, and costs to guarantee the acquisition of equipment that is of high quality and reliability resulting in greater performance and cost-related benefits; and

(F)

ensure that procurement officials—

(i)

acquire commercial services, commercial products, or nondevelopmental items other than commercial products to meet the needs of the Administration;

(ii)

in a solicitation for the procurement of supplies or services, state the specifications for such supplies or services in terms that enable and encourage bidders and offerors to supply commercial services or commercial products, or to the extent that commercial products suitable to meet the needs of the Administration are not available, to supply nondevelopmental items other than commercial products;

(iii)

require that prime contractors and subcontractors at all levels under contracts with the Administration incorporate commercial services, commercial products, or nondevelopmental items other than commercial products as components of items supplied to the Administration;

(iv)

modify procurement requirements in appropriate circumstances to ensure that such requirements can be met by commercial services or commercial products, or to the extent that commercial products suitable to meet the needs of the Administration are not available, nondevelopmental items other than commercial products; and

(v)

require training of appropriate personnel in the acquisition of commercial products and commercial services.

(5)

Adjudication of certain bid protests and contract disputes .—

section 504 of title 5A bid protest or contract dispute that is not addressed or resolved through alternative dispute resolution shall be adjudicated by the Administrator through Dispute Resolution Officers or Special Masters of the Federal Aviation Administration Office of Dispute Resolution for Acquisition, acting pursuant to sections 46102, 46104, 46105, 46106 and 46107 and shall be subject to judicial review under section 46110 and to .

(e)

Prohibition on Release of Offeror Proposals.—

(1)

General rule .—

section 552 of title 5Except as provided in paragraph (2), a proposal in the possession or control of the Administrator may not be made available to any person under .

(2)

Exception .—

Paragraph (1) shall not apply to any portion of a proposal of an offeror the disclosure of which is authorized by the Administrator pursuant to procedures published in the Federal Register. The Administrator shall provide an opportunity for public comment on the procedures for a period of not less than 30 days beginning on the date of such publication in order to receive and consider the views of all interested parties on the procedures. The procedures shall not take effect before the 60th day following the date of such publication.

(3)

Proposal defined .—

In this subsection, the term “proposal” means information contained in or originating from any proposal, including a technical, management, or cost proposal, submitted by an offeror in response to the requirements of a solicitation for a competitive proposal.

Pub. L. 103–272, § 1(e)July 5, 1994108 Stat. 1106 Pub. L. 103–429, § 6(48)Oct. 31, 1994108 Stat. 4384 Pub. L. 104–264, title XII, § 1201Oct. 9, 1996110 Stat. 3279 Pub. L. 106–181, title III, § 307(b)Apr. 5, 2000114 Stat. 125 Pub. L. 107–217, § 3(n)(5)Aug. 21, 2002116 Stat. 1302 Pub. L. 108–176, title IIDec. 12, 2003117 Stat. 2527 Pub. L. 108–178, § 4(k)Dec. 15, 2003117 Stat. 2642 Pub. L. 111–350, § 5oJan. 4, 2011124 Stat. 3853 Pub. L. 112–95, title IIFeb. 14, 2012126 Stat. 39 Pub. L. 115–254, div. B, title V, § 544Oct. 5, 2018132 Stat. 3374 Pub. L. 118–63, title IIMay 16, 2024138 Stat. 1055(, , ; , (80), , , 4388; , , ; , title VII, § 703, , , 156; , , ; , §§ 222, 224(a), (b), , ; , , ; ()(7), , ; , §§ 206, 210, , , 44; , , ; , §§ 218(b), 228, title XI, § 1101(e), (f), , , 1062, 1413.)

Historical and Revision Notes
Pub. L. 103–272
Revised Section	Source (U.S. Code)	Source (Statutes at Large)
40110(a)	49 App.:1344(a)(1) (less term of lease), (2) (words before 1st semicolon), (3).	Aug. 23, 1958, Pub. L. 85–726, § 303(a)–(d), 72 Stat. 747; May 21, 1970, Pub. L. 91–258, § 51(a)(1), 84 Stat. 234; July 12, 1976, Pub. L. 94–353, § 16, 90 Stat. 882; Oct. 19, 1980, Pub. L. 96–470, § 112(e), 94 Stat. 2240; Jan. 12, 1983, Pub. L. 97–449, § 7(b), 96 Stat. 2444; restated Nov. 5, 1990, Pub. L. 101–508, § 9118(a), 104 Stat. 1388–365.
40110(b)(1)	49 App.:1344(d).
40110(b) (2)(A)	49 App.:1344(a)(1) (related to term of lease).
40110(b) (2)(B)	49 App.:1344(b)(1).
40110(b) (2)(C)	49 App.:1344(b)(2).
40110(b) (2)(D)	49 App.:1344(c).
40110(b) (2)(E)	49 App.:1344(g).	Aug. 23, 1958, Pub. L. 85–726, 72 Stat. 747, § 303(g); added Oct. 31, 1992, Pub. L. 102–581, § 201(a), 106 Stat. 4890.
40110(b) (2)(F)	49 App.:1344(a)(2) (words after 1st semicolon).

Public Law 85–726 72 Stat. 747In this section, the word “Administrator” in section 303(a)–(d) of the Federal Aviation Act of 1958 (, ) is retained on authority of 49:106(g).

In subsection (a), before clause (1), the words “In carrying out this part” are added for clarity. The words “on behalf of the United States . . . where appropriate” are omitted as surplus. In clause (1), the words “made by the Congress”, “by purchase, condemnation . . . or otherwise”, and “easements through or other” are omitted as surplus. In clause (2), the words “by sale, lease, or otherwise” and “real or personal” are omitted as surplus. In clause (3), the word “renovate” is omitted as surplus. The words “and to purchase or otherwise acquire real property required therefor” are omitted as surplus because of the authority of the Administrator to acquire real property under clause (1) of this subsection.

In subsection (b)(1), the words “procedures other than competitive procedures” are substituted for “noncompetitive procedures” for consistency with subsection (b)(2)(D) of this section and 41:253(f).

In subsection (b)(2)(B), the text of 49 App.:1344(b)(1) (words before semicolon) and the words “easements through or other” are omitted as surplus.

In subsection (b)(2)(C), the words “by purchase, condemnation, or lease” are omitted as surplus.

Subsection (b)(2)(E) is substituted for 49 App.:1344(g) to eliminate the cross-references to other laws and for clarity and is based on the text of 10:2304(c)(1).

Pub. L. 103–429

section 1 of the Act of July 5, 1994 Public Law 103–272 108 Stat. 1106This amends 49:40110(a) to clarify the restatement of 49 App.:1344(a)(1)–(3) by (, ).

Editorial Notes

References in Text

Pub. L. 103–355Oct. 13, 1994108 Stat. 3243 section 101 of Title 41The Federal Acquisition Streamlining Act of 1994, referred to in subsec. (d)(2)(C), is , , . For complete classification of this Act to the Code, see Short Title of 1994 Act note set out under , Public Contracts, and Tables.

Pub. L. 85–536, § 2July 18, 195872 Stat. 384 section 631 of Title 15The Small Business Act, referred to in subsec. (d)(2)(D), is (1 et seq.), , , which is classified generally to chapter 14A (§ 631 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under and Tables.

Pub. L. 98–369, div. BJuly 18, 198498 Stat. 1175 section 101 of Title 41The Competition in Contracting Act, referred to in subsec. (d)(2)(E), probably means the Competition in Contracting Act of 1984, which is title VII of , , . For complete classification of this Act to the Code, see Short Title of 1984 Act note set out under , Public Contracts, and Tables.

Pub. L. 93–400Aug. 30, 197488 Stat. 796 Pub. L. 111–350Jan. 4, 2011124 Stat. 3677 section 101 of Title 41 section 101 of Title 41The Office of Federal Procurement Policy Act, referred to in subsec. (d)(3)(B), is , , , which was classified principally to chapter 7 (§ 401 et seq.) of former Title 41, Public Contracts, and was substantially repealed and restated in division B (§ 1101 et seq.) of subtitle I of Title 41, Public Contracts, by , §§ 3, 7(b), , , 3855. For complete classification of this Act to the Code, see Short Title of 1974 Act note set out under and Tables. For disposition of sections of former Title 41, see Disposition Table preceding .

Amendments

Pub. L. 118–63, § 1101(e)2024—Subsec. (c)(4). , substituted “subsection (a)(3)” for “subsection (a)(2)”.

Pub. L. 118–63, § 228(1)Subsec. (d)(1). , substituted “, implement, and periodically update” for “and implement”.

Pub. L. 118–63, § 228(2)Subsec. (d)(2). , in introductory provisions and subpar. (C), substituted “the acquisition management system developed, implemented, and periodically updated” for “the new acquisition management system developed and implemented”.

Pub. L. 118–63, § 228(3)(A)Subsec. (d)(3). , in introductory provisions, struck out “new” before “acquisition” and substituted “, implemented, and periodically updated” for “and implemented”.

Pub. L. 118–63, § 1101(f)(1)October 9, 1996Subsec. (d)(3)(B). , inserted “, as in effect on ” after “Policy Act”.

Pub. L. 118–63, § 228(3)(B), substituted “The Administrator” for “Within 90 days after the date of the enactment of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Administrator”.

Pub. L. 118–63, § 1101(f)(2)Subsec. (d)(3)(C). , substituted “division B of subtitle I of title 41” for “the Office of Federal Procurement Policy Act”.

Pub. L. 118–63, § 1101(f)(3)section 2105(c)(1)(D) of title 41Subsec. (d)(3)(D). , substituted “” for “section 27(e)(3)(A)(iv) of the Office of Federal Procurement Policy Act”.

Pub. L. 118–63, § 228(5)Subsec. (d)(4). , added par. (4). Former par. (4) redesignated (5).

Pub. L. 118–63, § 228(4)Subsec. (d)(5). , redesignated par. (4) as (5). Former par. (5) struck out.

Pub. L. 118–63, § 218(b), struck out par. (5) which related to annual reports on the purchase of foreign manufactured articles.

Pub. L. 115–2542018—Subsec. (d)(5). added par. (5).

Pub. L. 112–95, § 2102012—Subsec. (a)(2), (3). , added pars. (2) and (3) and struck out former pars. (2) and (3) which read as follows:

“(2) may dispose of an interest in property for adequate compensation; and

“(3) may construct and improve laboratories and other test facilities.”

Pub. L. 112–95, § 206Subsec. (c)(3) to (5). , inserted “and” at end of par. (3), redesignated par. (5) as (4), and struck out former par. (4) which read as follows: “use procedures other than competitive procedures only when the property or services needed by the Administrator of the Federal Aviation Administration are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the Administrator; and”.

Pub. L. 111–350, § 5o41 U.S.C. 252–2662011—Subsec. (d)(2)(A). ()(7)(A), substituted “Division C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41” for “Title III of the Federal Property and Administrative Services Act of 1949 ()”.

Pub. L. 111–350, § 5o41 U.S.C. 401Subsec. (d)(2)(B). ()(7)(B), substituted “Division B (except sections 1704 and 2303) of subtitle I of title 41” for “The Office of Federal Procurement Policy Act ( et seq.)”.

Pub. L. 111–350, § 5oPublic Law 103–355 section 4705 of title 41 section 4705 of title 41 Public Law 103–355 41 U.S.C. 265Subsec. (d)(2)(C). ()(7)(C), substituted “(). However, shall apply to the new acquisition management system developed and implemented pursuant to paragraph (1). For the purpose of applying to the system,” for “(), except for section 315 (). For the purpose of applying section 315 of that Act to the system,”.

Pub. L. 111–350, § 5o41 U.S.C. 423Subsec. (d)(3). ()(7)(D)(i), (ii), substituted “division b (except sections 1704 and 2303) of subtitle i of title 41” for “the office of federal procurement policy act” in heading and “chapter 21 of title 41” for “section 27 of the Office of Federal Procurement Policy Act ()” in text.

Pub. L. 111–350, § 5oSubsec. (d)(3)(A). ()(7)(D)(iii), substituted “Sections 2101 and 2106 of title 41” for “Subsections (f) and (g)”.

Pub. L. 108–176, § 224(a)2003—Subsec. (c). , struck out par. (1), which related to the senior procurement executive, par. (2) designation before “may—”, and subpar. (D) of par. (2), which related to use procedures other than competitive procedures, redesignated subpars. (A), (B), (C), (E), and (F) of par. (2) as pars. (1) to (5), respectively, and realigned margins.

Pub. L. 108–176, § 224(b)(1)January 1, 1996Subsec. (d)(1). , struck out “, not later than ,” after “shall develop and implement”, substituted “provides for—” for “provides for more timely and cost-effective acquisitions of equipment and materials.”, and added subpars. (A) and (B).

Pub. L. 108–176, § 222 Public Law 103–355 41 U.S.C. 265 Public Law 103–355Subsec. (d)(2)(C). , substituted “(), except for section 315 (). For the purpose of applying section 315 of that Act to the system, the term ‘executive agency’ is deemed to refer to the Federal Aviation Administration.” for “().”

Pub. L. 108–178, § 4(k)(3)Subsec. (d)(2)(G). , substituted “subparagraphs (A) through (F)” for “subparagraphs (A) through (G)”.

Pub. L. 108–178, § 4(k)(1)40 U.S.C. 759, (2), redesignated subpar. (H) as (G) and struck out former subpar. (G) which read as follows: “The Brooks Automatic Data Processing Act ().”

Pub. L. 108–178, § 4(k)(2)Subsec. (d)(2)(H). , redesignated subpar. (H) as (G).

Pub. L. 108–176, § 224(b)(2)April 1, 1996Subsec. (d)(4). , added par. (4) and struck out heading and text of former par. (4). Text read as follows: “This subsection shall take effect on .”

Pub. L. 107–217, § 3(n)(5)(A)section 3301(a) of title 40 40 U.S.C. 6122002—Subsec. (c)(2)(C). , substituted “(as defined in )” for “(as defined in section 13 of the Public Buildings Act of 1959 ())”.

Pub. L. 107–217, § 3(n)(5)(B)40 U.S.C. 481Subsec. (c)(2)(F). , substituted “sections 121, 123, and 126 and chapter 5 of title 40” for “title II of the Federal Property and Administrative Services Act of 1949 ( et seq.)”.

Pub. L. 106–1812000—Subsecs. (d), (e). added subsecs. (d) and (e).

Pub. L. 104–2641996—Subsecs. (b), (c). added subsec. (b) and redesignated former subsec. (b) as (c).

Pub. L. 103–429, § 6(48)1994—Subsec. (a). , in introductory provisions, struck out “may” after “Administration”, in par. (1), struck out “acquire,” before “to the extent” and substituted “may acquire services or, by condemnation or otherwise,” for “services or”, and in pars. (2) and (3), inserted “may” after par. designation.

Pub. L. 103–429, § 6(80)section 1341(a)(1) of title 31Subsec. (b)(2)(A). , inserted “notwithstanding ,” before “lease”.

Statutory Notes and Related Subsidiaries

Effective Date of 2003 Amendments

Pub. L. 108–178Aug. 21, 2002section 5 of Pub. L. 108–178 section 5334 of Title 5Amendment by effective , see , set out as a note under , Government Organization and Employees.

Pub. L. 108–176Sept. 30, 2003section 3 of Pub. L. 108–176 section 106 of this titleAmendment by applicable only to fiscal years beginning after , except as otherwise specifically provided, see , set out as a note under .

Effective Date of 2000 Amendment

Pub. L. 106–181Sept. 30, 1999section 3 of Pub. L. 106–181 section 106 of this titleAmendment by applicable only to fiscal years beginning after , see , set out as a note under .

Effective Date of 1996 Amendment

Pub. L. 104–264Sept. 30, 1996Oct. 1, 1996section 3 of Pub. L. 104–264 section 106 of this titleExcept as otherwise specifically provided, amendment by applicable only to fiscal years beginning after , and not to be construed as affecting funds made available for a fiscal year ending before , see , set out as a note under .

Effective Date of 1994 Amendment

Pub. L. 103–429July 5, 1994section 9 of Pub. L. 103–429 section 321 of this titleAmendment by effective , see , set out as a note under .

Contracting

Pub. L. 112–95, title VIII, § 814Feb. 14, 2012126 Stat. 125

“When drafting contract proposals for training facilities under the general contracting authority of the Federal Aviation Administration, the Administrator of the Federal Aviation Administration shall ensure—

“(1)

the proposal is drafted so that all parties can fairly compete; and

“(2)

the proposal takes into consideration the most cost-effective location, accessibility, and services options.”

, , , provided that:

FAA Evaluation of Long-Term Capital Leasing

Pub. L. 106–181, title VII, § 704Apr. 5, 2000114 Stat. 157, , , authorized the Administrator of the Federal Aviation Administration to carry out a pilot program in fiscal years 2001 through 2003 to test and evaluate the benefits of long-term contracts for the leasing of aviation equipment and facilities and to enter into certain types of contracts for this purpose.

Assessment of Acquisition Management System

Pub. L. 104–264, title II, § 251Oct. 9, 1996110 Stat. 3236

April 1, 1999“Not later than , the Administrator [of the Federal Aviation Administration] shall employ outside experts to provide an independent evaluation of the effectiveness of the Administration’s [Federal Aviation Administration] acquisition management system within 3 months after such date. The Administrator shall transmit a copy of the evaluation to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives.”

, , , provided that:

Pub. L. 104–205, title III, § 351Sept. 30, 1996110 Stat. 2979

December 31, 1997“Not later than , the Administrator of the Federal Aviation Administration shall—

“(a)

take such action as may be necessary to provide for an independent assessment of the acquisition management system of the Federal Aviation Administration that includes a review of any efforts of the Administrator in promoting and encouraging the use of full and open competition as the preferred method of procurement with respect to any contract that involves an amount greater than $50,000,000; and

“(b)

Provided41 U.S.C. 403(6) submit to the Congress a report on the findings of that independent assessment: , That for purposes of this section, the term ‘full and open competition’ has the meaning provided that term in section 4(6) of the Office of Federal Procurement Policy Act ().”

, , , provided that:

Acquisition Management System for Federal Aviation Administration

Pub. L. 104–50, title III, § 348Nov. 15, 1995109 Stat. 460Jan. 1, 1996Pub. L. 106–181, title III, § 307(d)Apr. 5, 2000114 Stat. 126, , , required the Administrator of the Federal Aviation Administration to develop and implement, not later than , an acquisition management system, exempt from specified federal procurement and acquisition laws, to provide for more timely and cost-effective acquisitions of equipment and materials, prior to repeal by , , .

Alternative Procurement and Acquisition Pilot Program

Pub. L. 103–355, title V, § 5063Oct. 13, 1994108 Stat. 3356

“(a)

Authority .—

section 44501(b) of title 49The Secretary of Transportation may conduct a test of alternative and innovative procurement procedures in carrying out acquisitions for one of the modernization programs under the Airway Capital Investment Plan prepared pursuant to , United States Code. In conducting such test, the Secretary shall consult with the Administrator for Federal Procurement Policy.

“(b)

Pilot Program Implementation .—

(1)

The Secretary of Transportation should prescribe policies and procedures for the interaction of the program manager and the end user executive responsible for the requirement for the equipment acquired. Such policies and procedures should include provisions for enabling the end user executive to participate in acceptance testing.

“(2)

Oct. 13, 1994 Not later than 45 days after the date of enactment of this Act [], the Secretary of Transportation shall identify for the pilot program quantitative measures and goals for reducing acquisition management costs.

“(3)

The Secretary of Transportation shall establish for the pilot program a review process that provides senior acquisition officials with reports on the minimum necessary data items required to ensure the appropriate expenditure of funds appropriated for the program and that—

“(A)

contain essential information on program results at appropriate intervals, including the criteria to be used in measuring the success of the program; and

“(B)

reduce data requirements from the current program review reporting requirements.

“(c)

Special Authorities .—

The authority provided by subsection (a) shall include authority for the Secretary of Transportation—

“(1)

section 251 of Title 41 to apply any amendment or repeal of a provision of law made in this Act [see Short Title of 1994 Amendment note set out under , Public Contracts] to the pilot program before the effective date of such amendment or repeal; and

“(2)

to apply to a procurement of items other than commercial items under such program—

“(A)

any authority provided in this Act (or in an amendment made by a provision of this Act) to waive a provision of law in the case of commercial items, and

“(B)

any exception applicable under this Act (or an amendment made by a provision of this Act) in the case of commercial items,

before the effective date of such provision (or amendment) to the extent that the Secretary determines necessary to test the application of such waiver or exception to procurements of items other than commercial items.

“(d)

Applicability .—

Subsection (c) applies with respect to—

“(1)

Oct. 13, 1994 a contract that is awarded or modified after the date occurring 45 days after the date of the enactment of this Act []; and

“(2)

a contract that is awarded before such date and is to be performed (or may be performed), in whole or in part, after such date.

“(e)

Procedures Authorized .—

The test conducted under this section may include any of the following procedures:

“(1)

Restriction of competitions to sources determined capable in a precompetition screening process, provided that the screening process affords all interested sources a fair opportunity to be considered.

“(2)

Restriction of competitions to sources of preevaluated products, provided that the preevaluation process affords all interested sources a fair opportunity to be considered.

“(3)

Alternative notice and publication requirements.

“(4)

A process in which—

“(A)

the competitive process is initiated by publication in the Commerce Business Daily, or by dissemination through FACNET, of a notice that—

“(i)

contains a synopsis of the functional and performance needs of the executive agency conducting the test, and, for purposes of guidance only, other specifications; and

“(ii)

invites any interested source to submit information or samples showing the suitability of its product for meeting those needs, together with a price quotation, or, if appropriate, showing the source’s technical capability, past performance, product supportability, or other qualifications (including, as appropriate, information regarding rates and other cost-related factors);

“(B)

contracting officials develop a request for proposals (including appropriate specifications and evaluation criteria) after reviewing the submissions of interested sources and, if the officials determine necessary, after consultation with those sources; and

“(C)

a contract is awarded after a streamlined competition that is limited to all sources that timely provided product information in response to the notice or, if appropriate, to those sources determined most capable based on the qualification-based factors included in an invitation to submit information pursuant to subparagraph (A).

“(f)

Waiver of Procurement Regulations .—

(1)

In conducting the test under this section, the Secretary of Transportation, with the approval of the Administrator for Federal Procurement Policy, may waive—

“(A)

any provision of the Federal Acquisition Regulation that is not required by statute; and

“(B)

any provision of the Federal Acquisition Regulation that is required by a provision of law described in paragraph (2), the waiver of which the Administrator determines in writing to be necessary to test procedures authorized by subsection (e).

“(2)

The provisions of law referred to in paragraph (1) are as follows:

“(A)

15 U.S.C. 637 Subsections (e), (f), and (g) of section 8 of the Small Business Act ().

“(B)

The following provisions of the Federal Property and Administrative Services Act of 1949:

“(i)

41 U.S.C. 253 41 U.S.C. 3105 Section 303 ([former] ) [see , 3301, 3303 to 3305].

“(ii)

41 U.S.C. 253a 41 U.S.C. 3306 Section 303A ([former] ) [see ].

“(iii)

41 U.S.C. 253b 41 U.S.C. 3308 Section 303B ([former] ) [now , 3701 to 3708, 4702].

“(iv)

41 U.S.C. 253c 41 U.S.C. 3311 Section 303C [former] () [now ].

“(C)

The following provisions of the Office of Federal Procurement Policy Act:

“(i)

41 U.S.C. 403(6)41 U.S.C. 107 Section 4(6) ([former] ) [see ].

“(ii)

41 U.S.C. 416 41 U.S.C. 1708 Section 18 ([former] ) [see ].

“(g)

Definition .—

41 U.S.C. 103In this section, the term ‘commercial item’ has the meaning provided that term in section 4(12) of the Office of Federal Procurement Policy Act [see ].

“(h)

Expiration of Authority .—

The authority to conduct the test under subsection (a) and to award contracts under such test shall expire 4 years after the date of the enactment of this Act. Contracts entered into before such authority expires shall remain in effect, notwithstanding the expiration of the authority to conduct the test under this section.

“(i)

Rule of Construction .—

Nothing in this section shall be construed as authorizing the appropriation or obligation of funds for the test conducted pursuant to subsection (a).”

, , , provided that: