FLASH Act of 2023

I 118TH CONGRESS 1ST SESSION H. R. 3794 To amend the Public Health Service Act to authorize the Biomedical Ad- vanced Research and Development Authority to award follow-on produc- tion contracts or transactions, procure supplies for experimental or test purposes, and acquire innovative commercial products and commercial services, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 5, 2023 Mr. ROBERT GARCIA of California introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend the Public Health Service Act to authorize the Biomedical Advanced Research and Development Author- ity to award follow-on production contracts or trans- actions, procure supplies for experimental or test pur- poses, and acquire innovative commercial products and commercial services, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fast-track Logistics 4 for Acquiring Supplies in a Hurry Act of 2023’’ or the 5 ‘‘FLASH Act of 2023’’. 6 VerDate Sep 11 2014 22:07 Jun 28, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3794.IH H3794 ddrumheller on DSK120RN23PROD with BILLS 2 •HR 3794 IH SEC. 2. AUTHORITY TO AWARD FOLLOW-ON PRODUCTION 1 CONTRACTS OR TRANSACTIONS, PROCURE 2 SUPPLIES FOR EXPERIMENTAL OR TEST PUR- 3 POSES, AND ACQUIRE INNOVATIVE COMMER- 4 CIAL PRODUCTS AND COMMERCIAL SERV- 5 ICES. 6 Section 319L of the Public Health Service Act (42 7 U.S.C. 247d–7e) is amended— 8 (1) in subsection (a)(6)(B), by amending clause 9 (ii) to read as follows: 10 ‘‘(ii) design and development of— 11 ‘‘(I) tests and prototypes, includ- 12 ing obtaining sufficient quantities for 13 evaluation of such tests and proto- 14 types; and 15 ‘‘(II) models, including animal 16 models, for such testing and proto- 17 types;’’; and 18 (2) in subsection (c)(5)— 19 (A) in subparagraph (A)— 20 (i) by redesignating clause (iv) as 21 clause (v); and 22 (ii) by inserting after clause (iii) the 23 following new clause: 24 ‘‘(iv) FOLLOW-ON PRODUCTION CON- 25 TRACTS OR TRANSACTIONS.— 26 VerDate Sep 11 2014 23:33 Jun 27, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3794.IH H3794 ddrumheller on DSK120RN23PROD with BILLS 3 •HR 3794 IH ‘‘(I) IN GENERAL.—A transaction 1 entered into under this subparagraph 2 for the design or development of a 3 prototype may provide for the award 4 of a follow-on production contract or 5 transaction to the participants in the 6 transaction. 7 ‘‘(II) PROTOTYPE SUB- 8 PROJECTS.—A transaction entered 9 into under this subparagraph includes 10 all prototype subprojects awarded 11 under the transaction to carry out au- 12 thorities under this section. 13 ‘‘(III) EXCEPTION TO COMPETI- 14 TIVE PROCEDURES.—Notwithstanding 15 clause (ii), a follow-on production con- 16 tract or transaction provided for in a 17 transaction under this clause may be 18 awarded to the participants in the 19 transaction without the use of com- 20 petitive procedures, even if explicit no- 21 tification was not listed within the re- 22 quest for proposal for the transaction, 23 if competitive procedures were used 24 VerDate Sep 11 2014 23:33 Jun 27, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3794.IH H3794 ddrumheller on DSK120RN23PROD with BILLS 4 •HR 3794 IH for the selection of parties for partici- 1 pation in the initial transaction.’’; and 2 (B) by adding at the end the following new 3 subparagraphs: 4 ‘‘(I) PROCUREMENT FOR EXPERIMENTAL 5 OR TEST PURPOSES.— 6 ‘‘(i) IN GENERAL.—The Secretary 7 may purchase medical countermeasures, 8 products, and supplies, chemical materials 9 and reagents, manufacturing supplies, pro- 10 tective equipment, and such other supplies, 11 including parts and accessories, and de- 12 signs thereof, as the Secretary determines 13 necessary for experimental or test purposes 14 in the development of supplies that are 15 necessary for national public health and 16 health security. 17 ‘‘(ii) PROCEDURES.—Notwithstanding 18 subparagraph (A)(ii), the Secretary may 19 make purchases under this subparagraph 20 by contract, or by entering into a trans- 21 action other than a contract, using non- 22 competitive procedures. 23 ‘‘(J) ACQUISITION OF INNOVATIVE COM- 24 MERCIAL PRODUCTS AND COMMERCIAL SERV- 25 VerDate Sep 11 2014 23:33 Jun 27, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3794.IH H3794 ddrumheller on DSK120RN23PROD with BILLS 5 •HR 3794 IH ICES USING GENERAL SOLICITATION COMPETI- 1 TIVE PROCEDURES.— 2 ‘‘(i) IN GENERAL.—Notwithstanding 3 subparagraph (A)(ii), the Secretary may 4 acquire innovative commercial products 5 and commercial services through a com- 6 petitive selection of proposals resulting 7 from a general solicitation and the peer re- 8 view of such proposals. 9 ‘‘(ii) TREATMENT AS COMPETITIVE 10 PROCEDURES.—Use of general solicitation 11 competitive procedures under clause (i) 12 shall be considered to be use of competitive 13 procedures for purposes of chapter 33 of 14 title 41, United States Code. 15 ‘‘(iii) LIMITATIONS.— 16 ‘‘(I) TRANSACTIONS IN EXCESS 17 OF $100,000,000.—The Secretary may 18 not enter into a contract or agreement 19 in excess of $100,000,000 using the 20 authority under clause (i), unless the 21 Secretary makes a written determina- 22 tion of the efficacy of the effort to 23 meet mission needs of the Department 24 of Health and Human Services. 25 VerDate Sep 11 2014 23:33 Jun 27, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3794.IH H3794 ddrumheller on DSK120RN23PROD with BILLS 6 •HR 3794 IH ‘‘(II) FIXED-PRICE.—Contracts 1 or agreements entered into using the 2 authority under clause (i) shall be 3 fixed-price, including fixed-price in- 4 centive contracts. 5 ‘‘(iv) CONGRESSIONAL NOTIFICATION 6 REQUIRED.— 7 ‘‘(I) SUBMISSION.—Not later 8 than 45 days after the award of a 9 contract for an amount exceeding 10 $100,000,000 using the authority 11 under clause (i), the Secretary shall 12 provide notification of such award to 13 the Committee on Energy and Com- 14 merce and the Committee on Appro- 15 priations of the House of Representa- 16 tives, and the Committee on Health, 17 Education, Labor, and Pensions and 18 the Committee on Appropriations of 19 the Senate. 20 ‘‘(II) CONTENTS.—Notification 21 of an award under subclause (I) shall 22 include the following: 23 VerDate Sep 11 2014 23:33 Jun 27, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3794.IH H3794 ddrumheller on DSK120RN23PROD with BILLS 7 •HR 3794 IH ‘‘(aa) Description of the in- 1 novative commercial product or 2 commercial service acquired. 3 ‘‘(bb) Description of the re- 4 quirement, capability gap, or po- 5 tential technological advancement 6 with respect to which the innova- 7 tive commercial product or com- 8 mercial service acquired provides 9 a solution or a potential new ca- 10 pability. 11 ‘‘(cc) Amount of the con- 12 tract awarded. 13 ‘‘(dd) Identification of the 14 contractor awarded the contract. 15 ‘‘(v) INNOVATIVE DEFINED.—In this 16 subparagraph, the term ‘innovative’, with 17 respect to a commercial product or com- 18 mercial service, means— 19 ‘‘(I) any technology, process, or 20 method, including research and devel- 21 opment, that is new as of the date of 22 submission of a proposal; or 23 ‘‘(II) with respect to a tech- 24 nology, process, or method, including 25 VerDate Sep 11 2014 23:33 Jun 27, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3794.IH H3794 ddrumheller on DSK120RN23PROD with BILLS 8 •HR 3794 IH research and development, existing as 1 of the date of submission of a pro- 2 posal, any application of such tech- 3 nology, process, or method that is new 4 to the Federal Government as of such 5 date.’’. 6 Æ VerDate Sep 11 2014 23:33 Jun 27, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\H3794.IH H3794 ddrumheller on DSK120RN23PROD with BILLS