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108th CONGRESS
1st Session
S. 1504
To amend the Public Health Service Act to provide protections and
countermeasures against chemical, radiological, or nuclear agents that
may be used in a terrorist attack against the United States of America.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 30 (legislative day, July 21), 2003
Mr. Gregg (for himself and Mr. Kennedy) introduced the following bill;
which was read the first time
_______________________________________________________________________
A BILL
To amend the Public Health Service Act to provide protections and
countermeasures against chemical, radiological, or nuclear agents that
may be used in a terrorist attack against the United States of America.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Project BioShield Act of 2003''.
SEC. 2. BIOMEDICAL COUNTERMEASURE RESEARCH AND DEVELOPMENT AUTHORITIES.
(a) In General.--Part B of title IV of the Public Health Service
Act (42 U.S.C. 284 et seq.) is amended by adding at the end the
following:
``SEC. 409J. BIOMEDICAL COUNTERMEASURE RESEARCH AND DEVELOPMENT.
``(a) In General.--
``(1) Authority.--In carrying out research responsibilities
under this Act, the Secretary may conduct and support research
and development with respect to biomedical countermeasures.
``(2) Implementation.--
``(A) In general.--Except as provided in
subparagraph (C), authorities assigned by this section
to the Secretary shall be carried out through the
Director of NIH.
``(B) Lead institute.--The National Institute of
Allergy and Infectious Diseases shall be the lead
institute for performing, administering, or supporting
biomedical countermeasure research and development. The
Director of NIH may delegate to the Director of the
Institute authorities as are necessary to carry out
this function.
``(C) Chemical, radiological, and nuclear agents.--
To the extent that an authority described in
subparagraph (A) is exercised with respect to a
chemical, radiological, or nuclear agent, the Secretary
may authorize the Director of NIH to carry out the
authority through any national research institute.
``(D) Availability of facilities to the
secretary.--In any grant or cooperative agreement
entered into under the authority provided in this
section with respect to a biocontainment laboratory or
other related or ancillary specialized research
facility that the Secretary determines necessary for
the purpose of performing, administering, and
supporting biomedical countermeasures research and
development, the Secretary may provide that the
facility that is the object of such grant or
cooperative agreement shall be available as needed to
the Secretary to respond to public health emergencies
affecting national security.
``(3) Interagency cooperation.--
``(A) In general.--In carrying out activities under
this section, the Secretary is authorized, subject to
subparagraph (B), to enter into interagency agreements
and other collaborative undertakings with other
agencies of the Federal Government and to use other
agencies of the Department of Health and Human
Services.
``(B) Limitation.--An agreement or undertaking
under this paragraph may not authorize another agency
to exercise the authorities provided to the Secretary
by this section.
``(b) Expedited Procurement Authority.--
``(1) Increased simplified acquisition threshold for
biomedical countermeasure procurements.--
``(A) In general.--For any procurement by the
Secretary, of property or services for use (as
determined by the Secretary) in performing,
administering, or supporting biomedical countermeasure
research or development, the amount specified in
section 4(11) of the Office of Federal Procurement
Policy Act (41 U.S.C. 403(11)), as applicable pursuant
to section 302A(a) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C.
252a(a)), shall be deemed to be $25,000,000 in the
administration, with respect to such procurement, of--
``(i) section 303(g)(1)(A) of the Federal
Property and Administrative Services Act of
1949 (41 U.S.C. 253(g)(1)(A)) and its
implementing regulations; and
``(ii) section 302A(b) of such Act (41
U.S.C. 252a(b)) and its implementing
regulations.
``(B) Application of certain provisions.--
Notwithstanding subparagraph (A) and the provisions of
law and regulations referred to in such subparagraph,
each of the following provisions and implementing
regulations shall apply to procurements described in
this paragraph to the same extent that such provisions
and regulations would apply to such procurements in
absence of subparagraph (A):
``(i) Chapter 37 of title 40, United States
Code (relating to contract work hours and
safety standards).
``(ii) Subsections (a) and (b) of section 7
of the Anti-Kickback Act of 1986 (41 U.S.C.
57(a) and (b)).
``(iii) Section 304C of the Federal
Property and Administrative Services Act of
1949 (41 U.S.C. 254d) (relating to the examination of contractor
records).
``(iv) Section 3131 of title 40, United
States Code (relating to bonds of contractors
of public buildings or works).
``(v) Section 303G of the Federal Property
and Administrative Services Act of 1949 (41
U.S.C. 253g) (relating to limiting
subcontractor sales).
``(vi) Subsection (a) of section 304 of the
Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 254(a)) (relating to
contingent fees to middlemen), other than the
last sentence of such subsection.
``(vii) Section 6002 of the Solid Waste
Disposal Act (42 U.S.C. 6962).
``(viii) Section 1354 of title 31, United
States Code (relating to the limitation on the
use of appropriated funds for contracts with
entities not meeting veterans' employment
reporting requirements).
``(C) Internal controls to be instituted.--The
Secretary shall institute appropriate internal controls
for procurements made under this paragraph, including
requirements with respect to documenting the
justification for use of the authority provided in this
paragraph.
``(2) Use of noncompetitive procedures.--In addition to any
other authority to use procedures other than competitive
procedures for procurements, the Secretary may use such other
noncompetitive procedures when--
``(A) the procurement is as described by paragraph
(1)(A); and
``(B) the property or services needed by the
Secretary 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
meet the needs of the Secretary.
``(3) Increased micropurchase threshold.--
``(A) In general.--For a procurement described by
paragraph (1)(A), the amount specified in subsections
(c), (d), and (f) of section 32 of the Office of
Federal Procurement Policy Act (41 U.S.C. 428) shall be
deemed to be $15,000 in the administration of that
section with respect to such procurement.
``(B) Internal controls to be instituted.--The
Secretary shall institute appropriate internal controls
for procurements that are made under this paragraph and
that are greater than $2,500.
``(C) Exception to preference for purchase card
mechanism.--No provision of law establishing a
preference for using a Federal Government purchase card
method for purchases shall apply to procurements made
under this paragraph and that are greater than $2,500.
``(c) Authority To Expedite Peer Review.--The Secretary may, as the
Secretary determines necessary to respond to pressing research and
development needs under this section, employ such expedited peer review
procedures (including consultation with appropriate scientific experts)
as the Secretary, in consultation with the Director of NIH, determines
to be appropriate to obtain an assessment of scientific and technical
merit and likely contribution to the field of biomedical countermeasure
research, in place of the peer review and advisory council review
procedures that would otherwise be required under sections 301(a)(3),
405(b)(1)(B), 405(b)(2), 406(a)(3)(A), 492, and 494, as applicable to a
grant, contract, or cooperative agreement--
``(1) that is for performing, administering, or supporting
biomedical countermeasure research and development; and
``(2) the amount of which is not greater than $1,500,000.
``(d) Agency Facilities.--In addition to any similar authority
provided under any other provision of law, in carrying out this
section, the Secretary may--
``(1) acquire, lease, construct, improve, renovate,
remodel, repair, operate, and maintain laboratories, other
research facilities and equipment, and other real or personal
property as the Secretary determines necessary for the purpose
of performing, administering, and supporting biomedical
countermeasure research and development; and
``(2) acquire, without regard to section 8141 of title 40,
United States Code, by lease or otherwise, through the
Administrator of General Services, buildings or parts of
buildings in the District of Columbia.
``(e) Authority for Personal Services Contracts.--
``(1) In general.--For the purpose of performing,
administering, and supporting biomedical countermeasure
research and development, the Secretary may, as the Secretary
determines necessary to respond to pressing research and
development needs under this section, obtain by contract (in
accordance with section 3109 of title 5, United States Code,
but without regard to the limitations in such section on the
period of service and on pay) the personal services of experts
or consultants who have scientific or other professional
qualifications.
``(2) Federal tort claims act coverage.--
``(A) In general.--A person carrying out a contract
under paragraph (1), and an officer, employee, or
governing board member of such person, shall be deemed
to be an employee of the Department of Health and Human
Services for purposes of claims under sections 1346(b)
and 2672 of title 28, United States Code, for money
damages for personal injury, including death, resulting
from performance of functions under such contract.
``(B) Exclusivity of remedy.--The remedy provided
by subparagraph (A) shall be exclusive of any other
civil action or proceeding by reason of the same
subject matter against the person, officer, employee, or governing
board member for any act or omission within the scope of the Federal
Tort Claims Act.
``(C) Recourse in case of gross misconduct or
contract violation.--
``(i) In general.--Should payment be made
by the United States to any claimant bringing a
claim under this paragraph, either by way of
administrative determination, settlement, or
court judgment, the United States shall have,
notwithstanding any provision of State law, the
right to recover for that portion of the
damages so awarded or paid, as well as interest
and any costs of litigation, resulting from the
failure of any person, officer, employee, or
governing board member to carry out any
obligation or responsibility assumed by such
person, officer, employee, or governing board
member under a contract with the United States
or from any grossly negligent, reckless, or
illegal conduct or willful misconduct on the
part of such person, officer, employee, or
governing board member.
``(ii) Venue.--The United States may
maintain an action under this subparagraph
against such person, officer, employee, or
governing board member in the district court of
the United States in which such person,
officer, employee, or governing board member
resides or has its principal place of business.
``(3) Internal controls to be instituted.--
``(A) In general.--The Secretary shall institute
appropriate internal controls for contracts under this
subsection, including procedures for the Secretary to
make a determination of whether a person, or an
officer, employee, or governing board member of a
person, is deemed to be an employee of the Department
of Health and Human Services pursuant to paragraph (2).
``(B) Determination of employee status to be
final.--A determination by the Secretary under
subparagraph (A) that a person, or an officer,
employee, or governing board member of a person, is or
is not deemed to be an employee of the Department of
Health and Human Services shall be final and binding on
the Secretary and the Attorney General and other
parties to any civil action or proceeding.
``(4) Number of personal services contracts limited.--The
number of experts and consultants whose personal services are
obtained under paragraph (1) shall not exceed 30 at any time.
``(f) Streamlined Personnel Authority.--
``(1) In general.--In addition to any other personnel
authorities, the Secretary may, as the Secretary determines
necessary to respond to pressing research and development needs
under this section, without regard to such provisions of title
5, United States Code, governing appointments in the
competitive service, and without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of such title
relating to classification and General Schedule pay rates,
appoint professional and technical employees, not to exceed 30
such employees at any time, to positions in the National
Institutes of Health to perform, administer, or support
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