PROCUREMENT.

SEC. 406. PROCUREMENT. Section 319F–2 of the Public Health Service Act (42 U.S.C. 247d–6b) is amended—(1) in the section heading, by inserting “and security countermeasure procurements” before the period; and(2) in subsection (c)—(A) in the subsection heading, by striking “Biomedical”;(B) in paragraph (3)—(i) by striking “countermeasures.—The Secretary” and inserting the following: “countermeasures.—“(A) In general.—The Secretary”; and(ii) by adding at the end the following:“(B) Information.—The Secretary shall institute a process for making publicly available the results of assessments under subparagraph (A) while withholding such information as—“(i) would, in the judgment of the Secretary, tend to reveal public health vulnerabilities; or“(ii) would otherwise be exempt from disclosure under section 552 of title 5, United States Code.”;(C) in paragraph (4)(A), by inserting “not developed or” after “currently”;(D) in paragraph (5)(B)(i), by striking “to meet the needs of the stockpile” and inserting “to meet the stockpile needs”;(E) in paragraph (7)(B)—(i) by striking the subparagraph heading and all that follows through “Homeland Security Secretary” and inserting the following: “Interagency agreement; cost.—The Homeland Security Secretary”; and(ii) by striking clause (ii);(F) in paragraph (7)(C)(ii)—(i) by amending subclause (I) to read as follows:“(I) Payment conditioned on delivery.—The contract shall provide that no payment may be made until delivery of a portion, acceptable to the Secretary, of the total number of units contracted for, except that, notwithstanding any other provision of law, the contract may provide that, if the Secretary determines (in the Secretary’s discretion) that an advance payment, partial payment for significant milestones, or payment to increase manufacturing capacity is necessary to ensure success of a project, the Secretary shall pay an amount, not to exceed 10 percent of the 120 STAT. 2880 contract amount, in advance of delivery. The Secretary shall, to the extent practicable, make the determination of advance payment at the same time as the issuance of a solicitation. The contract shall provide that such advance payment is required to be repaid if there is a failure to perform by the vendor under the contract. The contract may also provide for additional advance payments of 5 percent each for meeting the milestones specified in such contract, except that such payments shall not exceed 50 percent of the total contract amount. If the specified milestones are reached, the advanced payments of 5 percent shall not be required to be repaid. Nothing in this subclause shall be construed as affecting the rights of vendors under provisions of law or regulation (including the Federal Acquisition Regulation) relating to the termination of contracts for the convenience of the Government.”; and(ii) by adding at the end the following:“(VII) Sales exclusivity.—The contract may provide that the vendor is the exclusive supplier of the product to the Federal Government for a specified period of time, not to exceed the term of the contract, on the condition that the vendor is able to satisfy the needs of the Government. During the agreed period of sales exclusivity, the vendor shall not assign its rights of sales exclusivity to another entity or entities without approval by the Secretary. Such a sales exclusivity provision in such a contract shall constitute a valid basis for a sole source procurement under section 303(c)(1) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(c)(1)).“(VIII) Warm based surge capacity.—The contract may provide that the vendor establish domestic manufacturing capacity of the product to ensure that additional production of the product is available in the event that the Secretary determines that there is a need to quickly purchase additional quantities of the product. Such contract may provide a fee to the vendor for establishing and maintaining such capacity in excess of the initial requirement for the purchase of the product. Additionally, the cost of maintaining the domestic manufacturing capacity shall be an allowable and allocable direct cost of the contract.“(IX) Contract terms.—The Secretary, in any contract for procurement under this section, may specify—“(aa) the dosing and administration requirements for countermeasures to be developed and procured;“(bb) the amount of funding that will be dedicated by the Secretary for development and acquisition of the countermeasure; and120 STAT. 2881“(cc) the specifications the countermeasure must meet to qualify for procurement under a contract under this section.”; and(G) in paragraph (8)(A), by adding at the end the following: “Such agreements may allow other executive agencies to order qualified and security countermeasures under procurement contracts or other agreements established by the Secretary. Such ordering process (including transfers of appropriated funds between an agency and the Department of Health and Human Services as reimbursements for such orders for countermeasures) may be conducted under the authority of section 1535 of title 31, United States Code, except that all such orders shall be processed under the terms established under this subsection for the procurement of countermeasures.”.