S.Amdt. 3708

SA 3708. Mr. MULLIN submitted an amendment intended to be proposed by
him to the bill S. 2296, to authorize appropriations for fiscal year
2026 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:

At the end of subtitle B of title VIII, add the following:

SEC. 839A. GOVERNMENT ACCOUNTABILITY OFFICE BID PROTEST
PROCESS ENHANCEMENT.

(a) Revise Regulations.--
(1) In general.--Not later than 180 days after the date of
the enactment of this Act, the Secretary of Defense shall
revise the Defense Supplement to the Federal Acquisition
Regulation to establish procedures for a contracting officer
of the Department of Defense to file a claim against a
contractor that files a covered bid protest.
(2) Claims procedures.--The procedures required by
paragraph (1) shall ensure the following:
(A) A claim described in paragraph (1) shall be filed in
accordance with chapter 71 of title 41, United States Code.
(B) Any remedy shall be limited to the disgorgement of any
profits and fees earned by the incumbent contractor in the
performance of a covered contract during the disgorgement
period.
(3) Treatment of amounts received.--Amounts received as
result of a claim described in paragraph (1) shall be
credited to the fund or account that was used to cover the
costs of the covered contract, or, if the period of
availability of obligations for the appropriation from which
such costs were paid has expired, to the appropriations of a
fund or account that is currently available to the Secretary
for the same purpose. Amounts so credited shall be merged
with amounts in such fund or account and shall be available
for the same purposes, and subject to the same conditions and
limitations, as amounts in such fund or account.
(4) Definitions.--In this subsection:
(A) The term ``covered bid protest'' means a bid protest--
(i) that was filed with the Comptroller General of the
United States by an incumbent contractor;
(ii) that was dismissed by the Comptroller General based a
lack of any reasonable legal or factual basis; and
(iii) for which such dismissal was finally determined.
(B) The term ``covered contract'' means a contract with the
Department of Defense entered into with the incumbent
contractor for the acquisition of goods or services by the
Department during the disgorgement period that are the same
or substantially similar to goods or services to be acquired
by the Department under the contract previously awarded to
the incumbent contractor.
(C) The term ``disgorgement period'' means the period of
performance under a contract that was awarded or extended
because the Department of Defense received notice of a
protest by the incumbent contractor and was prohibited from
awarding a new contract during the pendency of such bid
protest under section 3553(c) of title 31, United States
Code.
(D) The term ``finally determined'', with respect to the
dismissal of a bid protest, means dismissal--
(i) was not appealed and is no longer appealable because
the time for taking an appeal has expired; or
(ii) was appealed and the appeals process for which is
completed.
(E) The term ``incumbent contractor'' means a contractor
under a contract with the Department of Defense for the
acquisition of goods or services by the Department that are
the same or substantially similar to goods or services to be
acquired by the Department under a new or follow-on contract
that is the subject of a covered bid protest.
(b) Continued Performance to Facilitate National Defense.--
Section 3553 of title 31, United States Code, is amended--
(1) by amending subsection (c)(3) to read as follows:
``(3) For the purposes of the written finding under
paragraph (2)(A) with respect to a contract for a procurement
by a component of the Department of Defense, the head of the
procuring activity may make the finding under such paragraph
for such contract if such head of the procuring activity
determines that the performance of such contract would
facilitate the national defense.''; and
(2) in subsection (d)(3), by adding at the end the
following new subparagraph:
``(D) For the purposes of the determination under paragraph
(2)(B) with respect to a contract for a procurement by a
component of the Department of Defense, a contracting officer
may not determine that immediate performance of such contract
is not in the best interests of the United States if the
contracting officer determines that performance

[[Page S5640]]

of the contract would facilitate the national defense.''.
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