TITLE 41—PUBLIC CONTRACTS
This title was enacted by Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3677
| Title 41 Former Sections | Title 41 New Sections |
|---|---|
| 1 to 4a | (Previously repealed) |
| 5, 5a | 6101 |
| 6 | (Previously repealed) |
| 6a(a) | 6102 |
| 6a(b) to (e) | (Previously repealed) |
| 6a(f) | 6102 |
| 6a(g) | (Previously repealed) |
| 6a(h) | 6102 |
| 6a(i) | (Previously repealed) |
| 6a(j) | 6102 |
| 6a(k) to (n) | (Previously repealed) |
| 6a(o) | (Omitted) |
| 6a(p) | (Previously repealed) |
| 6a–1 | 6102 |
| 6a–2 | T. 2 §1816b |
| 6a–3, 6a–4 | 6102 |
| 6b(a), (b) | Rep. |
| 6b(c) | T. 25 §903g |
| 6b(d) | 6102 |
| 6b(e) | Rep. |
| 6c to 6jj | (Previously repealed) |
| 6kk | Rep. |
| 6ll | (Previously repealed) |
| 6mm | (Previously transferred to T. 41 §6b(d) prior to repeal) |
| 7 to 7d | (Previously repealed) |
| 8 | 6103 |
| 9 | (Previously repealed) |
| 10 | Rep. |
| 10a | 8302 |
| 10b | 8303 |
| 10b–1 | (Previously omitted) |
| 10b–2 | 8304 |
| 10b–3 | 8305 |
| 10c | 8301 |
| 10d | 8303 |
| 11, 11a, 12, 13 | 6301 to 6304 |
| 13a | (Previously repealed) |
| 14 | 6301 |
| 15 | 6305 |
| 16 | (Previously repealed) |
| 16a to 16d | Rep. |
| 17 to 21 | (Previously repealed) |
| 22 to 24 | 6306 to 6308 |
| 24a | Rep. |
| 25 to 27 | (Previously repealed) |
| 28 to 34 | Rep. |
| 35 (matter before subsec. (a) less words related to definition of "agency of the United States") | 6502 |
| 35 (matter before subsec. (a) related to definition of "agency of the United States") | 6501 |
| 35(a) to (d) | 6502 |
| 36 | 6503 |
| 37 | 6504 |
| 38 to 40 | 6506 to 6508 |
| 41 | 6501 |
| 42 | 6511 |
| 43 | 6505 |
| 43a(a) | 6509 |
| 43a(b) (1st sentence) | 6507 |
| 43a(b) (last sentence), (c) | 6509 |
| 43b | 6510 |
| 44 | Rep. |
| 45 | 6502 |
| 46 to 48 | 8502 to 8504 |
| 48a | 8505 |
| 48b | 8501 |
| 48c | 8506 |
| 49, 50 | 6309 |
| 51 | Rep. |
| 52 | 8701 |
| 53 | 8702 |
| 54 | 8707 |
| 55 | 8706 |
| 56 | 8705 |
| 57 | 8703 |
| 58 | 8704 |
| 101, 102(a) | Rep. |
| 102(b) | (Previously repealed) |
| 103 | Rep. |
| 104(a) | (Previously repealed) |
| 104(b) to 115 | Rep. |
| 116 | (Previously repealed) |
| 117, 118(a) | Rep. |
| 118(b) | (Previously repealed) |
| 118(c) to 125 | Rep. |
| 151 to 162 | (Previously repealed) |
| 201 to 205 | (Previously transferred to T. 40 §§471 to 475 prior to repeal) |
| 211 to 213 | (Previously transferred to T. 40 §§751 to 753 prior to repeal) |
| 214 | (Previously transferred to T. 44 §391 prior to repeal) |
| 215 | (Previously transferred to T. 5 §630c prior to repeal) |
| 216 | (Previously transferred to T. 5 §630d and T. 40 §754 prior to repeal) |
| 217 | (Previously transferred to T. 5 §630e and T. 40 §755 prior to repeal) |
| 218 | (Previously transferred to T. 5 §630f prior to repeal) |
| 219 | (Previously transferred to T. 5 §630g and T. 40 §756 prior to repeal) |
| 231 to 237 | (Previously transferred to T. 40 §§481 to 488 prior to repeal) |
| 238 | (Previously transferred to T. 5 §630h and T. 40 §758 prior to repeal) |
| 239 to 240 | (Previously transferred to T. 40 §§489 to 492 prior to repeal) |
| 251 | Rep. |
| 251 note (Pub. L. 110–252, §§6102, 6103) | 3509 |
| 251 note (Pub. L. 110–417, §867) | 4711 |
| 252(a) | 3101 |
| 252(b) | 3104 |
| 252(c)(1) | 3106 |
| 252(c)(2) | 3301 |
| 252a, 252b | 3101 |
| 252c | 4709 |
| 253(a) | 3301 |
| 253(b) | 3303 |
| 253(c) to (f) | 3304 |
| 253(g) | 3305 |
| 253(h) | 3301 |
| 253(i) | 3105 |
| 253(j) | 3304 |
| 253a | 3306 |
| 253a note (Pub. L. 108–136, §1428) | 3306 |
| 253b(a), (b) | 3701 |
| 253b(c) to (f) | 3702 to 3705 |
| 253b(g) (related to 41:253b(e)) | 3704 |
| 253b(g) (related to 41:253b(f)) | 3705 |
| 253b(h) | 3706 |
| 253b(i) | 3707 |
| 253b(j) | 3308 |
| 253b(k), (l) | 3708 |
| 253b(m) | 4702 |
| 253c | 3311 |
| 253d | 4703 |
| 253e | (Previously repealed) |
| 253f | 3310 |
| 253g | 4704 |
| 253h | 4103 |
| 253h note (Pub. L. 103–355, §1054(b)) | 4102 |
| 253h note (Pub. L. 106–65, §804) | 4104 |
| 253h note (Pub. L. 110–417, §863(a)–(e)) | 3302 |
| 253i | 4105 |
| 253j | 4106 |
| 253k | 4101 |
| 253l | 3902 |
| 253l–1 to 253l–8 | 3904 |
| 253m | 3309 |
| 254(a) | 3901 |
| 254(b) | 3905 |
| 254 note (Pub. L. 110–417, §864(a), (b), (d), (e), (f)(2), (g)) | 3906 |
| 254a | 4708 |
| 254b(a) to (g) | 3502 to 3508 |
| 254b(h) | 3501 |
| 254b note (Pub. L. 110–417, §866) | 4710 |
| 254b note (Pub. L. 110–417, §868) | 3501 |
| 254c | 3903 |
| 254d | 4706 |
| 255(a) | 4501 |
| 255(b), (c) | 4502 |
| 255(d) to (g) | 4503 to 4506 |
| 256(a) to (d) | 4303 |
| 256(e) to (k) | 4304 to 4310 |
| 256(l)(1) | 4301 |
| 256(l)(2) | 4302 |
| 256(m) | 4301 |
| 256a | 4707 |
| 257 | 4701 |
| 258 | (Previously repealed) |
| 259(a) | 151 |
| 259(b) | 152 |
| 259(c)(1) | 111 |
| 259(c)(2) | 112 |
| 259(c)(3) | 114 |
| 259(c)(4) | 107 |
| 259(c)(5) | 113 |
| 259(c)(6) | 116 |
| 259(c)(7) | 109 |
| 259(c)(8), (9) | 108 |
| 259(c)(10) | 115 |
| 259(c)(11) | 103 |
| 259(c)(12) | 110 |
| 259(c)(13) | 102 |
| 259(c)(14) | 105 |
| 259(d) | 153 |
| 259(e) | 106 |
| 260 | 3101 |
| 261 | 3102 |
| 262 | 4701 |
| 263 | 3103 |
| 264 | 3307 |
| 264 note (Pub. L. 103–355, §8002) | 3307 |
| 264a ("commercial item") | 103 |
| 264a ("nondevelopmental item") | 110 |
| 264a ("component") | 105 |
| 264a ("commercial component") | 102 |
| 264b | 3307 |
| 265 | 4705 |
| 266 | 3105 |
| 266a | 3901 note prec. |
| 271 to 274 | (Previously transferred to T. 40 §§511 to 514 prior to repeal) |
| 281 to 291 | (Previously transferred to T. 44 §§392 to 402 prior to repeal) |
| 321 to 322 | Rep. |
| 351(a) (words before par. (1) related to applicability) | 6702 |
| 351(a) (words before par. (1) related to required contract terms), (1) to (5) | 6703 |
| 351(b) | 6704 |
| 352 | 6705 |
| 353 | 6707 |
| 354(a) | 6706 |
| 354(b) | 6705 |
| 355 | 6707 |
| 356 | 6702 |
| 357 | 6701 |
| 358 | 6707 |
| 401, 402 | (Previously repealed) |
| 403(1) | 133 |
| 403(2) | 111 |
| 403(3) | 112 |
| 403(4) | 114 |
| 403(5) | 132 |
| 403(6) | 107 |
| 403(7) | 113 |
| 403(8) | 116 |
| 403(9) | 109 |
| 403(10) ("item", "item of supply") | 108 |
| 403(10) ("supplies") | 115 |
| 403(11) | 134 |
| 403(12) | 103 |
| 403(13) | 110 |
| 403(14) | 105 |
| 403(15) | 102 |
| 403(16) | 131 |
| 403(17) | 1301 |
| 404(a) | 1101 |
| 404(b) | 1102 |
| 405(a) to (c) | 1121 |
| 405(d), (e) | 1122 |
| 405(f) | 1121 |
| 405(g) | 1122 |
| 405(h)(1) | 1130 |
| 405(h)(2) | 2305 |
| 405(i) | 1125 |
| 405(j) | 1126 |
| 405(k) | 1131 |
| 405 note (Pub. L. 108–136, §1431(b)) | 1129 |
| 405 note (Pub. L. 110–417, §874(a)) | 2311 |
| 405a (1st sentence) | 1121 |
| 405a (last sentence) | 1123 |
| 405b | 2304 |
| 405c(a) | 2303 |
| 405c(b) | 2303 note |
| 405c(c) | 2303 |
| 406 | 1701 |
| 407 | (Previously repealed) |
| 408 | 1121 |
| 409 | (Previously repealed) |
| 410 | 1101 |
| 411 | 1122 |
| 412(a) | 2307 |
| 412(b) | 2306 |
| 413 | 1124 |
| 414 | 1702 |
| 414a | 1706 |
| 414b(a) to (c) | 1311 |
| 414b(d), (e) | 1312 |
| 415 | (Previously repealed) |
| 416 | 1708 |
| 417 | 1712 |
| 417a | 1713 |
| 417b | 2313 |
| 418 | 1705 |
| 418a | 2302 |
| 418b | 1707 |
| 419 | 1709 |
| 420 | (Previously repealed) |
| 421(a), (b) | 1302 |
| 421(c) to (f) | 1303 |
| 422(a) to (e) | 1501 |
| 422(f) to (h)(1) | 1502 |
| 422(h)(2) to (4) | 1503 |
| 422(i) | Rep. |
| 422(j) to (l) | 1504 to 1506 |
| 423(a), (b) | 2102 |
| 423(c) to (e) | 2103 to 2105 |
| 423(f) | 2101 |
| 423(g) | 2106 |
| 423(h) | 2107 |
| 424 | (Previously repealed) |
| 425 | 1304 |
| 426 | 2301 |
| 426a | (Previously repealed) |
| 427 | 1901 |
| 428 | 1902 |
| 428a | 1903 |
| 428a note (Pub. L. 108–136, §1441) | 1904 |
| 429 | 1905 |
| 430 | 1906 |
| 431(a), (b) | 1907 |
| 431(c) | 104 |
| 431a | 1908 |
| 431a note (Pub. L. 108–375, §807(c)) | 1908 |
| 432 | 1711 |
| 433 | 1703 |
| 433 notes (Pub. L. 108–136, §§1412(a), 1413) | 1703 |
| 433 note (Pub. L. 108–136, §1414) | 1128 |
| 433a | 1704 |
| 433a note (Pub. L. 110–417, §869) | 1704 |
| 434 | 2308 |
| 435 | 1127 |
| 436 | 2309 |
| 437 | 2310 |
| 438 | 7105 |
| 439 | 1710 |
| 440 | 2312 |
| 501 to 509 | (Previously repealed) |
| 601 | 7101 |
| 602, 603 | 7102 |
| 604, 605 | 7103 |
| 606 | 7104 |
| 607(a) to (e) | 7105 |
| 607(f) | 7106 |
| 607(g) | 7107 |
| 608 | 7106 |
| 609(a) | 7104 |
| 609(b) to (f) | 7107 |
| 610 | 7105 |
| 611, 611 note (Pub. L. 102–572, §907(a)(3)) | 7109 |
| 612 | 7108 |
| 613 | Rep. |
| 701 to 705 | 8102 to 8106 |
| 706, 707 | 8101 |
Statutory Notes and Related Subsidiaries
Enactment of Title 41, United States Code
Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3677, provided that: "Certain general and permanent laws of the United States, related to public contracts, are revised, codified, and enacted as title 41, United States Code, 'Public Contracts', as follows:"
Purpose; Conformity With Original Intent
Pub. L. 111–350, §2, Jan. 4, 2011, 124 Stat. 3677, provided that:
"(a)
"(b)
Transitional and Savings Provisions
Pub. L. 111–350, §6(a)–(e), Jan. 4, 2011, 124 Stat. 3854, provided that:
"(a)
"(b)
"(c)
"(d)
"(e)
Repeals
Pub. L. 111–350, §7(b), Jan. 4, 2011, 124 Stat. 3855, repealed specified laws, except for rights and duties that matured, penalties that were incurred, and proceedings that were begun before Jan. 4, 2011.
Pub. L. 111–350, §7(a), Jan. 4, 2011, 124 Stat. 3855, provided that: "The repeal of a law by this Act [see Tables for classification] may not be construed as a legislative inference that the provision was or was not in effect before its repeal."
Subtitle I—Federal Procurement Policy
Division A—General
Division B—Office of Federal Procurement Policy
Division C—Procurement
Editorial Notes
Amendments
2011—Pub. L. 112–81, div. A, title VIII, §864(b)(2), Dec. 31, 2011, 125 Stat. 1524, added item for chapter 12.
1 So in original. The period probably should not appear.
Division A—General
CHAPTER 1—DEFINITIONS
SUBCHAPTER I—SUBTITLE DEFINITIONS
SUBCHAPTER II—DIVISION B DEFINITIONS
SUBCHAPTER III—DIVISION C DEFINITIONS
Editorial Notes
Amendments
2018—Pub. L. 115–232, div. A, title VIII, §836(a)(3), Aug. 13, 2018, 132 Stat. 1860, substituted "Commercial product" for "Commercial item" in item 103 and added item 103a.
SUBCHAPTER I—SUBTITLE DEFINITIONS
§101. Administrator
In this subtitle, the term "Administrator" means the Administrator for Federal Procurement Policy appointed under section 1102 of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3678.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 101 | no source. |
Statutory Notes and Related Subsidiaries
Short Title of 2024 Amendment
Pub. L. 118–74, §1, July 30, 2024, 138 Stat. 1505, provided that: "This Act [enacting section 6310 of this title and provisions set out as a note under section 6310 of this title] may be cited as the 'All-American Flag Act'."
Short Title of 2021 Amendment
Pub. L. 117–28, §1, July 26, 2021, 135 Stat. 304, provided that: "This Act [amending provisions set out as a note under section 3309 of this title] may be cited as the 'Construction Consensus Procurement Improvement Act of 2021'."
Short Title of 2020 Amendment
Pub. L. 116–260, div. U, title IV, §401, Dec. 27, 2020, 134 Stat. 2292, provided that: "This title [enacting provisions set out as a note under section 3309 of this title] may be cited as the 'Construction Consensus Procurement Improvement Act of 2020'."
Short Title of 2018 Amendment
Pub. L. 115–390, §1(a), Dec. 21, 2018, 132 Stat. 5173, provided that: "This Act [enacting subchapter III of chapter 13 of this title and section 4713 of this title, amending sections 3553 and 3554 of Title 44, Public Printing and Documents, and section 3348 of Title 50, War and National Defense, and enacting provisions set out as notes under this section and sections 1321 and 4713 of this title, section 663 of Title 6, Domestic Security, and section 3553 of Title 44] may be cited as the 'Strengthening and Enhancing Cyber-capabilities by Utilizing Risk Exposure Technology Act' or the 'SECURE Technology Act'."
Pub. L. 115–390, title II, §201, Dec. 21, 2018, 132 Stat. 5178, provided that: "This title [enacting subchapter III of chapter 13 of this title and section 4713 of this title, amending sections 3553 and 3554 of Title 44, Public Printing and Documents, and enacting provisions set out as notes under sections 1321 and 4713 of this title and section 3553 of Title 44] may be cited as the 'Federal Acquisition Supply Chain Security Act of 2018'."
Short Title of 2016 Amendment
Pub. L. 114–260, §1, Dec. 14, 2016, 130 Stat. 1361, provided that: "This Act [amending section 4106 of this title] may be cited as the 'GAO Civilian Task and Delivery Order Protest Authority Act of 2016'."
Short Title of 2012 Amendment
Pub. L. 112–194, §1, Oct. 5, 2012, 126 Stat. 1445, provided that: "This Act [enacting section 1909 of this title, amending section 2784 of Title 10, Armed Forces, enacting provisions set out as notes under section 1909 of this title and section 5701 of Title 5, Government Organization and Employees, and amending provisions set out as a note under section 5701 of Title 5] may be cited as the 'Government Charge Card Abuse Prevention Act of 2012'."
Short Title of 2008 Act
Pub. L. 110–417, [div. A], title VIII, §861, Oct. 14, 2008, 122 Stat. 4546, provided that: "This subtitle [subtitle G (§§861–874) of title VIII of Pub. L. 110–417, see Tables for classification] may be cited as the 'Clean Contracting Act of 2008'."
Pub. L. 110–252, title VI, §6101, June 30, 2008, 122 Stat. 2386, provided that: "This chapter [chapter 1 (§§6101–6103) of title VI of Pub. L. 110–252, see Tables for classification] may be cited as the 'Close the Contractor Fraud Loophole Act'."
Short Title of 2003 Act
Pub. L. 108–136, div. A, title XIV, §1401, Nov. 24, 2003, 117 Stat. 1663, provided that: "This title [see Tables for classification] may be cited as the 'Services Acquisition Reform Act of 2003'."
Short Title of 1996 Act
Pub. L. 104–106, div. D, §4001, Feb. 10, 1996, 110 Stat. 642, as amended by Pub. L. 104–208, div. A, title I, §101(f) [title VIII, §808(a)], Sept. 30, 1996, 110 Stat. 3009–314, 3009-393, provided that: "This division [div. D (§§4001–4402) of Pub. L. 104–106, see Tables for classification] and division E [§§5001–5703 of Pub. L. 104–106, repealed and reenacted, generally, as subtitle III (§11101 et seq.) of Title 40, Public Buildings, Property, and Works, by Pub. L. 107–217, §§1, 6(b), Aug. 21, 2002, 116 Stat. 1062, 1304, see Tables for complete classification] may be cited as the 'Clinger-Cohen Act of 1996'."
Short Title of 1994 Act
Pub. L. 103–355, §1, Oct. 13, 1994, 108 Stat. 3243, provided that: "This Act [see Tables for classification] may be cited as the 'Federal Acquisition Streamlining Act of 1994'."
Short Title of 1988 Act
Pub. L. 100–679, §1, Nov. 17, 1988, 102 Stat. 4055, provided that: "This Act [see Tables for classification] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1988'."
Pub. L. 100–418, title VII, §7001, Aug. 23, 1988, 102 Stat. 1545, provided that: "This title [see Tables for classification] may be cited as the 'Buy American Act of 1988'."
Short Title of 1986 Act
Pub. L. 99–634, §1, Nov. 7, 1986, 100 Stat. 3523, provided: "That this Act [see Tables for classification] may be cited as the 'Anti-Kickback Enforcement Act of 1986'."
Short Title of 1984 Act
Pub. L. 98–577, §1, Oct. 30, 1984, 98 Stat. 3066, provided that this Act [see Tables for classification] may be cited as the "Small Business and Federal Procurement Competition Enhancement Act of 1984".
Pub. L. 98–369, div. B, title VII, §2701, July 18, 1984, 98 Stat. 1175, provided that: "This title [see Tables for classification] may be cited as the 'Competition in Contracting Act of 1984'."
Short Title of 1983 Act
Pub. L. 98–191, §1, Dec. 1, 1983, 97 Stat. 1325, provided: "That this Act [see Tables for classification] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1983'."
Short Title of 1979 Act
Pub. L. 96–83, §1(a), Oct. 10, 1979, 93 Stat. 648, provided that: "This Act [see Tables for classification] may be cited as the 'Office of Federal Procurement Policy Act Amendments of 1979'."
Short Title of 1974 Act
Pub. L. 93–400, §1(a), Aug. 30, 1974, 88 Stat. 796, as amended by Pub. L. 103–355, title X, §10005(a)(1), Oct. 13, 1994, 108 Stat. 3406, provided that: "This Act [see Tables for classification] may be cited as the 'Office of Federal Procurement Policy Act'."
Short Title of 1949 Act
Act June 30, 1949, ch. 288, §1(a), 63 Stat. 377, as amended by Pub. L. 103–355, title X, §10005(a)(2), Oct. 13, 1994, 108 Stat. 3406; Pub. L. 107–217, §6(b), Aug. 21, 2002, 116 Stat. 1304; Pub. L. 108–178, §2(b)(1), Dec. 15, 2003, 117 Stat. 2640, provided that: "This Act [see Tables for classification] may be cited as the 'Federal Property and Administrative Services Act of 1949'."
[Pub. L. 107–217, §6(b), which had repealed section 1(a) of act June 30, 1949, set out above, was itself repealed effective Aug. 21, 2002, by Pub. L. 108–178, §2(b)(1), insofar as it related to section 1(a) of act June 30, 1949, and Pub. L. 108–178, §2(b)(1), further provided that section 1(a) of act June 30, 1949, was revived to read as if Pub. L. 107–217, §6(b), had not been enacted.]
Short Title of 1936 Act
Act June 30, 1936, ch. 881, §14, formerly §12, as added by Pub. L. 103–355, title X, §10005(f)(5), Oct. 13, 1994, 108 Stat. 3409; renumbered §14, Pub. L. 104–106, div. D, title XLIII, §4321(f)(1)(B), Feb. 10, 1996, 110 Stat. 675, provided that: "This Act [see Tables for classification] may be cited as the 'Walsh-Healey Act'."
Short Title of 1933 Act
Act Mar. 3, 1933, ch. 212, title III, §7, formerly §5, as added by Pub. L. 103–355, title X, §10005(f)(4), Oct. 13, 1994, 108 Stat. 3409; renumbered §7 and amended by Pub. L. 104–106, div. D, title XLIII, §4321(a)(11), Feb. 10, 1996, 110 Stat. 671, provided that: "This title [see Tables for classification] may be cited as the 'Buy American Act'."
§102. Commercial component
In this subtitle, the term "commercial component" means a component that is a commercial product.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3678; Pub. L. 115–232, div. A, title VIII, §836(a)(2)(A), Aug. 13, 2018, 132 Stat. 1860.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 102 | 41:259(c)(13). | June 30, 1949, ch. 288, title III, §309(c)(13), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:264a ("commercial component"). | June 30, 1949, ch. 288, title III, §314A ("commercial component"), as added Pub. L. 103–355, title VIII, §8202, Oct. 13, 1994, 108 Stat. 3394. | |
| 41:403(15). | Pub. L. 93–400, §4(15), as added Pub. L. 103–355, title VIII, §8001(a), Oct. 13, 1994, 108 Stat. 3386. |
Editorial Notes
Amendments
2018—Pub. L. 115–232 substituted "commercial product" for "commercial item".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§103. Commercial product
In this subtitle, the term "commercial product" means any of the following:
(1) A product, other than real property, that—
(A) is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and
(B) has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public.
(2) A product that—
(A) evolved from a product described in paragraph (1) through advances in technology or performance; and
(B) is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation.
(3) A product that would satisfy the criteria in paragraph (1) or (2) were it not for—
(A) modifications of a type customarily available in the commercial marketplace; or
(B) minor modifications made to meet Federal Government requirements.
(4) Any combination of products meeting the requirements of paragraph (1), (2), or (3) that are of a type customarily combined and sold in combination to the general public.
(5) A product, or combination of products, referred to in paragraphs (1) through (4), even though the product, or combination of products, is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor.
(6) A nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that—
(A) the product was developed exclusively at private expense; and
(B) has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments.
(Added Pub. L. 115–232, div. A, title VIII, §836(a)(1), Aug. 13, 2018, 132 Stat. 1859.)
Editorial Notes
Prior Provisions
A prior section 103, Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3679; Pub. L. 115–91, div. A, title VIII, §847(a), Dec. 12, 2017, 131 Stat. 1487, defined term "commercial item", prior to repeal by Pub. L. 115–232, div. A, title VIII, §836(a)(1), Aug. 13, 2018, 132 Stat. 1859, effective Jan. 1, 2020. See Effective Date note below.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective, and repeal of former section 103 effective, on Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§103a. Commercial service
In this subtitle, the term "commercial service" means any of the following:
(1) Installation services, maintenance services, repair services, training services, and other services if—
(A) those services are procured for support of a commercial product, regardless of whether the services are provided by the same source or at the same time as the commercial product; and
(B) the source of the services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government;
(2) Services of a type offered and sold competitively, in substantial quantities, in the commercial marketplace—
(A) based on established catalog or market prices;
(B) for specific tasks performed or specific outcomes to be achieved; and
(C) under standard commercial terms and conditions.
(3) A service described in paragraph (1) or (2), even though the service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor.
(Added Pub. L. 115–232, div. A, title VIII, §836(a)(1), Aug. 13, 2018, 132 Stat. 1860.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§104. Commercially available off-the-shelf item
In this subtitle, the term "commercially available off-the-shelf item"—
(1) means an item that—
(A) is a commercial product (as described in section 103(1) of this title);
(B) is sold in substantial quantities in the commercial marketplace; and
(C) is offered to the Federal Government, without modification, in the same form in which it is sold in the commercial marketplace; but
(2) does not include bulk cargo, as defined in section 40102(4) of title 46, such as agricultural products and petroleum products.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3679; Pub. L. 115–232, div. A, title VIII, §836(a)(2)(B), Aug. 13, 2018, 132 Stat. 1860; Pub. L. 116–283, div. A, title X, §1081(d)(4)(A), Jan. 1, 2021, 134 Stat. 3874.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 104 | 41:431(c). | Pub. L. 93–400, §35(c), as added Pub. L. 104–106, title XLII, §4203(a), Feb. 10, 1996, 110 Stat. 655. |
In paragraph (2), the words "section 40102(4) of title 46" are substituted for "section 3 of the Shipping Act of 1984 (46 U.S.C. App. 1702)" because of section 18(c) of Public Law 109–304 (46 U.S.C. note prec. 101).
Editorial Notes
Amendments
2021—Par. (1)(A). Pub. L. 116–283, §1081(d)(4)(A), made technical correction to directory language of Pub. L. 115–232, §836(a)(2)(B). See 2018 Amendment note below.
2018—Par. (1)(A). Pub. L. 115–232, as amended by Pub. L. 116–283, §1081(d)(4)(A), substituted "commercial product" for "commercial item".
Statutory Notes and Related Subsidiaries
Effective Date of 2021 Amendment
Pub. L. 116–283, div. A, title X, §1081(d), Jan. 1, 2021, 134 Stat. 3873, provided that the amendment made by section 1081(d)(4)(A) to section 836(a)(2)(B) of Pub. L. 115–232, which amended this section, is effective as of Aug. 13, 2018, and as if included in Pub. L. 115–232.
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§105. Component
In this subtitle, the term "component" means an item supplied to the Federal Government as part of an end item or of another component.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 105 | 41:259(c)(14). | June 30, 1949, ch. 288, title III, §309(c)(14), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:264a ("component"). | June 30, 1949, ch. 288, title III, §314A ("component"), as added Pub. L. 103–355, title VIII, §8202, Oct. 13, 1994, 108 Stat. 3394. | |
| 41:403(14). | Pub. L. 93–400, §4(14), as added Pub. L. 103–355, title VIII, §8001(a), Oct. 13, 1994, 108 Stat. 3386. |
§106. Federal Acquisition Regulation
In this subtitle, the term "Federal Acquisition Regulation" means the regulation issued under section 1303(a)(1) of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 106 | 41:259(e). | June 30, 1949, ch. 288, title III, §309(e), as added Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
The defined term is made applicable to the subtitle because of the numerous references throughout the Office of Federal Procurement Policy Act (Public Law 93–400, 88 Stat. 796), restated in division B of this subtitle, and especially because of sections 6(a) and 25(c) of the Act, restated in sections 1121 and 1303, respectively.
§107. Full and open competition
In this subtitle, the term "full and open competition", when used with respect to a procurement, means that all responsible sources are permitted to submit sealed bids or competitive proposals on the procurement.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 107 | 41:259(c)(4). | June 30, 1949, ch. 288, title III, §309(c)(4), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:403(6). | Pub. L. 93–400, §4(6), formerly §4(7), as added Pub. L. 98–369, title VII, §2731(3), July 18, 1984, 98 Stat. 1195; Pub. L. 98–577, title I, §102(1), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(6), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. |
§108. Item and item of supply
In this subtitle, the terms "item" and "item of supply"—
(1) mean an individual part, component, subassembly, assembly, or subsystem integral to a major system, and other property which may be replaced during the service life of the system, including spare parts and replenishment spare parts; but
(2) do not include packaging or labeling associated with shipment or identification of an item.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 108 | 41:259(c)(8), (9). | June 30, 1949, ch. 288, title III, §309(c)(8), (9), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:403(10) ("item", "item of supply"). | Pub. L. 93–400, §4(10) ("item", "item of supply"), formerly §4(11), as added Pub. L. 98–577, title I, §102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(10), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1), (2), (4), Oct. 13, 1994, 108 Stat. 3386. |
§109. Major system
(a)
(b)
(1) the Department of Defense is responsible for the system and the total expenditures for research, development, testing, and evaluation for the system are estimated to exceed $75,000,000 (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement exceeds $300,000,000 (based on fiscal year 1980 constant dollars);
(2) a civilian agency is responsible for the system and total expenditures for the system are estimated to exceed the greater of $750,000 (based on fiscal year 1980 constant dollars) or the dollar threshold for a major system established by the agency pursuant to Office of Management and Budget (OMB) Circular A–109, entitled "Major Systems Acquisitions"; or
(3) the head of the agency responsible for the system designates the system a major system.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 109 | 41:259(c)(7). | June 30, 1949, ch. 288, title III, §309(c)(7), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:403(9). | Pub. L. 93–400, §4(9), formerly §4(10), as added Pub. L. 98–577, title I, §102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(9), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. |
§110. Nondevelopmental item
In this subtitle, the term "nondevelopmental item" means—
(1) a commercial product;
(2) a previously developed item of supply that is in use by a department or agency of the Federal Government, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement;
(3) an item of supply described in paragraph (1) or (2) that requires only minor modification or modification of the type customarily available in the commercial marketplace to meet the requirements of the procuring department or agency; or
(4) an item of supply currently being produced that does not meet the requirements of paragraph (1), (2), or (3) solely because the item is not yet in use.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3680; Pub. L. 115–232, div. A, title VIII, §836(a)(2)(C), Aug. 13, 2018, 132 Stat. 1860.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 110 | 41:259(c)(12). | June 30, 1949, ch. 288, title III, §309(c)(12), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:264a ("nondevelopmental item"). | June 30, 1949, ch. 288, title III, §314A ("nondevelopmental item"), as added Pub. L. 103–355, title VIII, §8202, Oct. 13, 1994, 108 Stat. 3394. | |
| 41:403(13). | Pub. L. 93–400, §4(13), as added Pub. L. 103–355, title VIII, §8001(a), Oct. 13, 1994, 108 Stat. 3385. |
Editorial Notes
Amendments
2018—Par. (1). Pub. L. 115–232 substituted "commercial product" for "commercial item".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§111. Procurement
In this subtitle, the term "procurement" includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 111 | 41:259(c)(1). | June 30, 1949, ch. 288, title III, §309(c)(1), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3298. |
| 41:403(2). | Pub. L. 93–400, §4(2), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. |
§112. Procurement system
In this subtitle, the term "procurement system" means the integration of the procurement process, the professional development of procurement personnel, and the management structure for carrying out the procurement function.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 112 | 41:259(c)(2). | June 30, 1949, ch. 288, title III, §309(c)(2), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:403(3). | Pub. L. 93–400, §4(3), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. |
§113. Responsible source
In this subtitle, the term "responsible source" means a prospective contractor that—
(1) has adequate financial resources to perform the contract or the ability to obtain those resources;
(2) is able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and Government business commitments;
(3) has a satisfactory performance record;
(4) has a satisfactory record of integrity and business ethics;
(5) has the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain the organization, experience, controls, and skills;
(6) has the necessary production, construction, and technical equipment and facilities, or the ability to obtain the equipment and facilities; and
(7) is otherwise qualified and eligible to receive an award under applicable laws and regulations.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 113 | 41:259(c)(5). | June 30, 1949, ch. 288, title III, §309(c)(5), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:403(7). | Pub. L. 93–400, §4(7), formerly §4(8), as added Pub. L. 98–369, title VII, §2731(3), July 18, 1984, 98 Stat. 1195; Pub. L. 98–577, title I, §102(2), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(7), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. |
§114. Standards
In this subtitle, the term "standards" means the criteria for determining the effectiveness of the procurement system by measuring the performance of the various elements of the system.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 114 | 41:259(c)(3). | June 30, 1949, ch. 288, title III, §309(c)(3), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:403(4). | Pub. L. 93–400, §4(4), formerly §4(5), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 98–369, title VII, §2731(2), July 18, 1984, 98 Stat. 1195; redesignated as §4(4), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1), (2), (4), Oct. 13, 1994, 108 Stat. 3386. |
§115. Supplies
In this subtitle, the term "supplies" has the same meaning as the terms "item" and "item of supply".
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 115 | 41:259(c)(10). | June 30, 1949, ch. 288, title III, §309(c)(10) ("supplies"), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:403(10) ("supplies"). | Pub. L. 93–400, §4(10) ("supplies"), formerly §4(11), as added Pub. L. 98–577, title I, §102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(10), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1), (2), (4), Oct. 13, 1994, 108 Stat. 3386. |
§116. Technical data
In this subtitle, the term "technical data"—
(1) means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency; but
(2) does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3681.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 116 | 41:259(c)(6). | June 30, 1949, ch. 288, title III, §309(c)(6), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, title V, §504(a)(4), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299. |
| 41:403(8). | Pub. L. 93–400, §4(8), formerly §4(9), as added Pub. L. 98–577, title I, §102(3), Oct. 30, 1984, 98 Stat. 3067; redesignated as §4(8), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. |
SUBCHAPTER II—DIVISION B DEFINITIONS
§131. Acquisition
In division B, the term "acquisition"—
(1) means the process of acquiring, with appropriated amounts, by contract for purchase or lease, property or services (including construction) that support the missions and goals of an executive agency, from the point at which the requirements of the executive agency are established in consultation with the chief acquisition officer of the executive agency; and
(2) includes—
(A) the process of acquiring property or services that are already in existence, or that must be created, developed, demonstrated, and evaluated;
(B) the description of requirements to satisfy agency needs;
(C) solicitation and selection of sources;
(D) award of contracts;
(E) contract performance;
(F) contract financing;
(G) management and measurement of contract performance through final delivery and payment; and
(H) technical and management functions directly related to the process of fulfilling agency requirements by contract.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 131 | 41:403(16). | Pub. L. 93–400, §4(16), as added Pub. L. 108–136, title XIV, §1411, Nov. 24, 2003, 117 Stat. 1663. |
§132. Competitive procedures
In division B, the term "competitive procedures" means procedures under which an agency enters into a contract pursuant to full and open competition.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 132 | 41:403(5). | Pub. L. 93–400, §4(5), formerly §4(6), as added Pub. L. 98–369, title VII, §2731(3), July 18, 1984, 98 Stat. 1195; redesignated as §4(5), Pub. L. 100–679, §3(c), Nov. 17, 1988, 102 Stat. 4056; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. |
§133. Executive agency
In division B, the term "executive agency" means—
(1) an executive department specified in section 101 of title 5;
(2) a military department specified in section 102 of title 5;
(3) an independent establishment as defined in section 104(1) of title 5; and
(4) a wholly owned Government corporation fully subject to chapter 91 of title 31.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 133 | 41:403(1). | Pub. L. 93–400, §4(1), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §3, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §4, Dec. 1, 1983, 97 Stat. 1326; Pub. L. 103–355, title VIII, §8001(b)(1)–(3), Oct. 13, 1994, 108 Stat. 3386. |
§134. Simplified acquisition threshold
In division B, the term "simplified acquisition threshold" means $250,000.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682; Pub. L. 115–91, div. A, title VIII, §805, Dec. 12, 2017, 131 Stat. 1456.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 134 | 41:403(11). | Pub. L. 93–400, §4(11), as added Pub. L. 101–510, title VIII, §806(a)(1), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 103–355, title IV, §4001, title VIII, §8001(b)(1), (2), Oct. 13, 1994, 108 Stat. 3338, 3386. |
Editoral Notes
Amendments
2017—Pub. L. 115–91 substituted "$250,000" for "$100,000".
SUBCHAPTER III—DIVISION C DEFINITIONS
Statutory Notes and Related Subsidiaries
Definitions
For additional definitions of terms used in division C of this subtitle, with certain exceptions, see section 102 of Title 40, Public Buildings, Property, and Works.
§151. Agency head
In division C, the term "agency head" means the head or any assistant head of an executive agency, and may at the option of the Administrator of General Services include the chief official of any principal organizational unit of the General Services Administration.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3682.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 151 | 41:259(a). | June 30, 1949, ch. 288, title III, §309(a), 63 Stat. 397. |
§152. Competitive procedures
In division C, the term "competitive procedures" means procedures under which an executive agency enters into a contract pursuant to full and open competition. The term also includes—
(1) procurement of architectural or engineering services conducted in accordance with chapter 11 of title 40;
(2) the competitive selection of basic research proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of those proposals;
(3) the procedures established by the Administrator of General Services for the multiple awards schedule program of the General Services Administration if—
(A) participation in the program has been open to all responsible sources; and
(B) orders and contracts under those procedures result in the lowest overall cost alternative to meet the needs of the Federal Government;
(4) procurements conducted in furtherance of section 15 of the Small Business Act (15 U.S.C. 644) as long as all responsible business concerns that are entitled to submit offers for those procurements are permitted to compete; and
(5) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of that Act (15 U.S.C. 638).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3683.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 152 | 41:259(b). | June 30, 1949, ch. 288, §309(b), as added Pub. L. 98–369, title VII, §2711(a)(3), July 18, 1984, 98 Stat. 1180; Pub. L. 98–577, §504(a)(3), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 105–85, title X, §1073(g)(1), Nov. 18, 1997, 111 Stat. 1906. |
§153. Simplified acquisition threshold for contract in support of humanitarian or peacekeeping operation
(1)
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3683.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 153(1) | 41:259(d)(1). | June 30, 1949, ch. 288, title III, §309(d)(1), as added Pub. L. 103–355, title I, §1551, Oct. 13, 1994, 108 Stat. 3299; Pub. L. 104–201, title VIII, §807(b)(1), (2), Sept. 23, 1996, 110 Stat. 2606. |
| 153(2) | 41:259(d)(2). | June 30, 1949, ch. 288, title III, §309(d)(2), as added Pub. L. 104–201, title VIII, §807(b)(3), Sept. 23, 1996, 110 Stat. 2606. |
In paragraph (1), the words "a contingency operation or", and the text of 41 U.S.C. 259(d)(2)(A), are omitted because the increased simplified acquisition threshold established under section 32A of the Office of Federal Procurement Policy Act (Public Law 93–400) in the case of a contract to be awarded and performed, or purchase to be made, outside the United States in support of a contingency operation supersedes the threshold established under this section. Section 32A is restated as section 1903 of the revised title.
Division B—Office of Federal Procurement Policy
CHAPTER 11—ESTABLISHMENT OF OFFICE AND AUTHORITY AND FUNCTIONS OF ADMINISTRATOR
SUBCHAPTER I—GENERAL
SUBCHAPTER II—AUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR
Amendment of Analysis
Pub. L. 113–67, div. A, title VII, §702(b)(2), (c), Dec. 26, 2013, 127 Stat. 1189, provided that, applicable only with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after Dec. 26, 2013, this analysis is amended by striking out item 1127. See 2013 Amendment note below.
Pub. L. 113–66, div. A, title VIII, §811(c)(2), (d), Dec. 26, 2013, 127 Stat. 806, provided that, applicable with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after Dec. 26, 2013, this analysis is amended by striking out item 1127. See 2013 Amendment note below.
Editorial Notes
Amendments
2013—Pub. L. 113–66, div. A, title VIII, §811(c)(2), Dec. 26, 2013, 127 Stat. 806, and Pub. L. 113–67, div. A, title VII, §702(b)(2), Dec. 26, 2013, 127 Stat. 1189, struck out item 1127 "Determining benchmark compensation amount".
SUBCHAPTER I—GENERAL
§1101. Office of Federal Procurement Policy
(a)
(b)
(1) provide overall direction of Government-wide procurement policies, regulations, procedures, and forms for executive agencies; and
(2) promote economy, efficiency, and effectiveness in the procurement of property and services by the executive branch of the Federal Government.
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3684.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1101(a), (b) | 41:404(a). | Pub. L. 93–400, §(5)(a), Aug. 30, 1974, 88 Stat. 797; Pub. L. 104–106, title XLIII, §4305(a)(1), Feb. 10, 1996, 110 Stat. 665. |
| 1101(c) | 41:410. | Pub. L. 93–400, §11, Aug. 30, 1974, 88 Stat. 799; Pub. L. 96–83, §7, Oct. 10, 1979, 93 Stat 651; Pub. L. 98–191, §6, Dec. 1, 1983, 97 Stat 1329; Pub. L. 100–679, §3(b), Nov. 17, 1988, 102 Stat 4056; Pub. L. 104–106, title XLIII, §4305(c)(2), Feb. 10, 1996, 110 Stat. 665. |
Statutory Notes and Related Subsidiaries
Promoting Rigorous and Innovative Cost Efficiencies for Federal Procurement and Acquisitions
Pub. L. 117–88, Feb. 22, 2022, 136 Stat. 20, provided that:
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Promoting Rigorous and Innovative Cost Efficiencies for Federal Procurement and Acquisitions Act of 2021' or the 'PRICE Act of 2021'.
"SEC. 2. FINDINGS.
"Congress finds that—
"(1) small business participation in the Federal marketplace is key to ensuring a strong industrial base;
"(2) the Business Opportunity Development Reform Act of 1988 (Public Law 100–656) [see Tables for classification] sets forth the requirement for the President to establish Government-wide goals for procurement contracts awarded to small businesses;
"(3) each year, the Small Business Administration works with each Federal agency to set their respective contracting goals and publishes a scorecard to ensure that the total of all Federal agency goals meets the required targets for the Federal Government;
"(4) the Department has received among the highest scorecard letter grades 10 years in a row and is the largest Federal agency to have such a track record;
"(5) in virtually every segment of the economy of the United States, including the homeland security community, there are small businesses working to support the mission and playing a critical role in delivering efficient and innovative solutions to the acquisition needs of the Federal Government;
"(6) the Procurement Innovation Lab of the Department—
"(A) is aimed at experimenting with innovative acquisition techniques across the Homeland Security Enterprise;
"(B) provides a forum to test new ideas, share lessons learned, and promote best practices;
"(C) fosters cultural changes that promote innovation and managed risk taking through a continuous cycle of testing, obtaining feedback, sharing information, and retesting where appropriate; and
"(D) aims to make the acquisition process more smooth and innovative within the construct of the Federal Acquisition Regulation for both the Federal Government and contractors; and
"(7) despite progress in the adoption of new and better business practices by many Federal agencies, the overall adoption of modernized business practices and advanced technologies across the Federal Government remains slow and uneven.
"SEC. 3. DEFINITIONS.
"In this Act:
"(1)
"(2)
"(A) the Committee on Homeland Security and Governmental Affairs and the Committee on Small Business and Entrepreneurship of the Senate; and
"(B) the Committee on Homeland Security, the Committee on Oversight and Reform [now Committee on Oversight and Accountability], and the Committee on Small Business of the House of Representatives.
"(3)
"(4)
"(5)
"(6)
"(7)
"(8)
"(A) a qualified HUBZone small business concern, a small business concern, a small business concern owned and controlled by service-disabled veterans, or a small business concern owned and controlled by women, as those terms are defined in section 3 of the Small Business Act (15 U.S.C. 632);
"(B) a small business concern owned and controlled by socially and economically disadvantaged individuals, as defined in section 8(d)(3)(C) of the Small Business Act (15 U.S.C. 637(d)(3)(C)); or
"(C) a small business concern unconditionally owned by an economically disadvantaged Indian tribe or an economically disadvantaged Native Hawaiian organization that qualifies as a socially and economically disadvantaged small business concern, as defined in section 8(a)(4) of the Small Business Act (15 U.S.C. 637(a)(4)).
"(9)
"SEC. 4. PROCUREMENT INNOVATION LAB REPORT.
"(a)
"(1) improving or encouraging better competition;
"(2) reducing time to award;
"(3) cost savings;
"(4) better mission outcomes; or
"(5) meeting the goals for contracts awarded to small business concerns under section 15(g) of the Small Business Act (15 U.S.C. 644(g)).
"(b)
"(c)
"(d)
"SEC. 5. COUNCIL.
"(a)
"(b)
"(1) be chaired by the Administrator or a designee of the Administrator; and
"(2) be composed of—
"(A) the Chief Procurement Officer of the Department;
"(B) Council members from—
"(i) the General Services Administration;
"(ii) the Department of Defense;
"(iii) the Department of the Treasury;
"(iv) the Department of Veterans Affairs;
"(v) the Department of Health and Human Services;
"(vi) the Small Business Administration; and
"(vii) such other Federal agencies as determined by the chair of the Council from among Federal agencies that have demonstrated significant, sustained progress using innovative acquisition practices and technologies, including for small business contracting, during each of the 3 years preceding the date of enactment of this Act; and
"(C) other employees, as determined appropriate by the chair of the Council, of Federal agencies with the requisite senior experience to make recommendations to improve Federal agency efficiency, effectiveness, and economy, including in promoting small business contracting.
"(c)
"(1) convene not later than 90 days after the date of enactment of this Act and thereafter on a quarterly basis until the Council submits the report required under subsection (d)(1); and
"(2) conduct outreach with the workforce and the public in meeting the requirements under subsection (d)(1).
"(d)
"(1)
"(A) innovative acquisition practices and applications of technologies that have worked well in achieving better procurement outcomes, including increased efficiency, improved program outcomes, better customer experience, and meeting or exceeding the goals under section 15(g) of the Small Business Act (15 U.S.C. 644(g)), and the reasons why those practices have succeeded;
"(B) steps to identify and adopt transformational commercial business practices, modernized data analytics, and advanced technologies that allow decision making to occur in a more friction-free buying environment and improve customer experience; and
"(C) any recommendations for statutory changes to accelerate the adoption of innovative acquisition practices.
"(2)
"(3)
"(A) publish the report required under paragraph (1) on the website of the Office of Management and Budget and on the Innovation Hub on the Acquisition Gateway or any successor Government-wide site available for increasing awareness of resources dedicated to procurement innovation; and
"(B) encourage the head of each Federal agency to maintain a site on the website of the Federal agency for acquisition and contracting professionals, program managers, members of the public, and others as appropriate that is—
"(i) dedicated to acquisition innovation; and
"(ii) identifies—
"(I) resources, including the acquisition innovation advocate and industry liaison of the Federal agency;
"(II) learning assets for the workforce, including the findings and recommendations made in the report required under paragraph (1);
"(III) events to build awareness and understanding of innovation activities;
"(IV) award recognition programs and recent recipients; and
"(V) upcoming plans to leverage innovative practices and technologies.
"(e)
"(f)
Requirements for Use of Appropriations by Executive Agencies for Services by Contract
Pub. L. 102–394, title V, §502, Oct. 6, 1992, 106 Stat. 1825, provided that: "No part of any appropriation contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts shall be expended by an executive agency, as referred to in the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 401 et seq.) [see this division (except sections 1123, 2303, 2304, and 2313)], pursuant to any obligation for services by contract, unless such executive agency has awarded and entered into such contract in full compliance with such Act and regulations promulgated thereunder."
Similar provisions were contained in the following prior appropriation acts:
Pub. L. 102–170, title V, §502, Nov. 26, 1991, 105 Stat. 1140.
Pub. L. 101–517, title V, §502, Nov. 5, 1990, 104 Stat. 2221.
Pub. L. 101–166, title V, §502, Nov. 21, 1989, 103 Stat. 1189.
Pub. L. 100–202, §101(h) [title V, §502], Dec. 22, 1987, 101 Stat. 1329–256, 1329-287.
Pub. L. 99–500, §101(i) [H.R. 5233, title V, §502], Oct. 18, 1986, 100 Stat. 1783–287, and Pub. L. 99–591, §101(i) [H.R. 5233, title V, §502], Oct. 30, 1986, 100 Stat. 3341–287.
Pub. L. 99–178, title V, §502, Dec. 12, 1985, 99 Stat. 1132.
Pub. L. 98–619, title V, §502, Nov. 8, 1984, 98 Stat. 3332.
Pub. L. 98–139, title V, §502, Oct. 31, 1983, 97 Stat. 899.
Pub. L. 97–377, title I, §101(e)(1) [title V, §502], Dec. 21, 1982, 96 Stat. 1878, 1904.
§1102. Administrator
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3684.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1102 | 41:404(b). | Pub. L. 93–400, §(5)(b), Aug. 30, 1974, 88 Stat. 797. |
SUBCHAPTER II—AUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR
§1121. General authority
(a)
(b)
(c)
(1)
(A) property other than real property in being;
(B) services, including research and development; and
(C) construction, alteration, repair, or maintenance of real property.
(2)
(3)
(d)
(e)
(f)
(1) impair or interfere with the determination by executive agencies of their need for, or their use of, specific property, services, or construction, including particular specifications for the property, services, or construction; or
(2) interfere with the determination by executive agencies of specific actions in the award or administration of procurement contracts.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3684.)
In subsection (c)(2), the text of 41:405a (1st sentence relating to promulgating a single, simplified, uniform Federal procurement regulation) is omitted as superseded by 41:405(a) because of section 11 of the Office of Federal Procurement Policy Act Amendments of 1979 (Public Law 96–83, 93 Stat. 652).
Statutory Notes and Related Subsidiaries
Supersedure of Inconsistent Statutory Provisions
Pub. L. 96–83, §11, Oct. 10, 1979, 93 Stat. 652, provided that: "The provisions of the Act [Pub. L. 93–400, Aug. 30, 1974, 88 Stat. 796, see this division (except sections 1123, 2303, 2304, and 2313)] as amended by this Act [see Short Title of 1979 Act note set out under section 101 of this title] shall supersede the provisions of section 222 of the Act of October 24, 1978, entitled 'An Act to amend the Small Business Act and the Small Business Investment Act of 1958' ([former] 41 U.S.C. 405a) [now 41 U.S.C. 1121(c)(2), 1123] to the extent they are inconsistent therewith."
Federal Support for Enhancement of State and Local Anti-Terrorism Response Capabilities
Pub. L. 108–136, div. A, title VIII, §803, Nov. 24, 2003, 117 Stat. 1541, provided that:
"(a)
"(b)
"(c)
Profit Methodology Study
Pub. L. 100–679, §7, Nov. 17, 1988, 102 Stat. 4068, provided that:
"(a)
"(b)
§1122. Functions
(a)
(1) providing leadership and ensuring action by the executive agencies in establishing, developing, and maintaining the single system of simplified Government-wide procurement regulations and resolving differences among the executive agencies in developing simplified Government-wide procurement regulations, procedures, and forms;
(2) coordinating the development of Government-wide procurement system standards that executive agencies shall implement in their procurement systems;
(3) providing leadership and coordination in formulating the executive branch position on legislation relating to procurement;
(4)(A) providing for and directing the activities of the computer-based Federal Procurement Data System (including recommending to the Administrator of General Services a sufficient budget for those activities), which shall be located in the General Services Administration, in order to adequately collect, develop, and disseminate procurement data; and
(B) ensuring executive agency compliance with the record requirements of section 1712 of this title;
(5) providing for and directing the activities of the Federal Acquisition Institute established under section 1201 of this title, including recommending to the Administrator of General Services a sufficient budget for such activities.1
(6) administering section 1703(a) to (i) of this title;
(7) establishing criteria and procedures to ensure the effective and timely solicitation of the viewpoints of interested parties in the development of procurement policies, regulations, procedures, and forms;
(8) developing standard contract forms and contract language in order to reduce the Federal Government's cost of procuring property and services and the private sector's cost of doing business with the Federal Government;
(9) providing for a Government-wide award to recognize and promote vendor excellence;
(10) providing for a Government-wide award to recognize and promote excellence in officers and employees of the Federal Government serving in procurement-related positions;
(11) developing policies, in consultation with the Administrator of the Small Business Administration, that ensure that small businesses, qualified HUBZone small business concerns (as defined in section 31(b) of the Small Business Act), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women are provided with the maximum practicable opportunities to participate in procurements that are conducted for amounts below the simplified acquisition threshold;
(12) developing policies that will promote achievement of goals for participation by small businesses, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns (as defined in section 31(b) of the Small Business Act), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women; and
(13) completing action, as appropriate, on the recommendations of the Commission on Government Procurement.
(b)
(1) shall consult with the affected executive agencies, including the Small Business Administration;
(2) with the concurrence of the heads of affected executive agencies, may designate one or more executive agencies to assist in performing those functions; and
(3) may establish advisory committees or other interagency groups to assist in providing for the establishment, development, and maintenance of a single system of simplified Government-wide procurement regulations and to assist in performing any other function the Administrator considers appropriate.
(c)
(1)
(2)
(A)
(B)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3685; Pub. L. 112–81, div. A, title VIII, §864(b)(3), Dec. 31, 2011, 125 Stat. 1524; Pub. L. 115–91, div. A, title XVII, §1701(a)(4)(F)(i), Dec. 12, 2017, 131 Stat. 1796.)
In clause (12), the words "small business concerns owned and controlled by service-disabled veterans" are added to conform to section 15(g)(1) of the Small Business Act (15:644(g)(1)).
Editorial Notes
References in Text
Section 31(b) of the Small Business Act, referred to in subsec. (a)(11), (12), is classified to section 657a(b) of Title 15, Commerce and Trade.
Amendments
2017—Subsec. (a)(11), (12). Pub. L. 115–91, §1701(a)(4)(F)(i), substituted "section 31(b) of the Small Business Act" for "section 3(p) of the Small Business Act (15 U.S.C. 632(p))".
2011—Subsec. (a)(5). Pub. L. 112–81 amended par. (5) generally. Prior to amendment, par. (5) related to the purposes of the activities of the Federal Acquisition Institute.
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by Pub. L. 115–91 effective Jan. 1, 2020, see section 1701(j) of Pub. L. 115–91, set out as a note under section 657a of Title 15, Commerce and Trade.
Revision to the Federal Procurement Data System
Pub. L. 116–92, div. A, title VIII, §806(b), Dec. 20, 2019, 133 Stat. 1485, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Administrator of General Services, in coordination with the Administrator for Federal Procurement Policy, shall direct appropriate revisions to the Federal procurement data system established pursuant to section 1122(a)(4) of title 41, United States Code (or any successor system), to facilitate the collection of complete, timely, and reliable data on the source selection processes used by Federal agencies for the contract actions being reported in the system. The Administrator of General Services shall ensure that data are collected—
"(1) at a minimum, on the usage of the lowest price technically acceptable contracting methods and best value contracting methods process; and
"(2) on all applicable contracting actions, including task orders or delivery orders issued under indefinite delivery-indefinite quantity contracts."
Procurement Administrative Lead Time Definition and Plan
Pub. L. 115–232, div. A, title VIII, §878, Aug. 13, 2018, 132 Stat. 1908, provided that:
"(a)
"(1) a definition of the term 'Procurement administrative lead time' or 'PALT', to be applied Government-wide, that describes the amount of time from the date on which a solicitation for a contract or task order is issued to the date of an initial award of the contract or task order; and
"(2) a plan for measuring and publicly reporting data on PALT for Federal Government contracts and task orders in amounts greater than the simplified acquisition threshold.
"(b)
"(1) begin on the date on which an initial solicitation is issued by a Federal department or agency for a contract or task order; and
"(2) end on the date of the award of the contract or task order.
"(c)
"(1) the senior procurement executives of Federal agencies;
"(2) the Secretary of Defense; and
"(3) the Administrator of the General Services Administration on modifying the existing data system of the Federal Government to determine the date on which the initial solicitation is issued.
"(d)
Pilot Program To Inventory Cost and Size of Service Contracts
Pub. L. 110–161, div. D, title VII, §748, Dec. 26, 2007, 121 Stat. 2035, provided that: "No later than 180 days after enactment of this Act [Dec. 26, 2007], the Office of Management and Budget shall establish a pilot program to develop and implement an inventory to track the cost and size (in contractor manpower equivalents) of service contracts, particularly with respect to contracts that have been performed poorly by a contractor because of excessive costs or inferior quality, as determined by a contracting officer within the last five years, involve inherently governmental functions, or were undertaken without competition. The pilot program shall be established in at least three Cabinet-level departments, based on varying levels of annual contracting for services, as reported by the Federal Procurement Data System's Federal Procurement Report for fiscal year 2005, including at least one Cabinet-level department that contracts out annually for $10,000,000,000 or more in services, at least one Cabinet-level department that contracts out annually for between $5,000,000,000 and $9,000,000,000 in services, and at least one Cabinet-level department that contracts out annually for under $5,000,000,000 in services."
Reporting of Bundled Contract Opportunities
Pub. L. 105–135, title IV, §414, Dec. 2, 1997, 111 Stat. 2619, provided that:
"(a)
"(b)
Results-Oriented Acquisition Process
Pub. L. 103–355, title V, §5052, Oct. 13, 1994, 108 Stat. 3352, provided that:
"(a)
"(b)
Data Collection Through Federal Procurement Data System
Pub. L. 103–355, title X, §10004, Oct. 13, 1994, 108 Stat. 3405, as amended by Pub. L. 115–232, div. A, title VIII, §812(a)(2)(C)(iv), Aug. 13, 2018, 132 Stat. 1847, provided that:
"(a)
"(1) Contract awards made pursuant to competitions conducted pursuant to section 7102 of the Federal Acquisition Streamlining Act of 1994 [Pub. L. 103–355, 15 U.S.C. 644 note].
"(2) Awards to business concerns owned and controlled by women.
"(3) Number of offers received in response to a solicitation.
"(4) Task order contracts.
"(5) Contracts for the acquisition of commercial items.
"(b)
1 So in original. The period probably should be a semicolon.
§1123. Small business concerns
In formulating the Federal Acquisition Regulation and procedures to ensure compliance with the Regulation, the Administrator, in consultation with the Small Business Administration, shall—
(1) conduct analyses of the impact on small business concerns resulting from revised procurement regulations; and
(2) incorporate into revised procurement regulations simplified bidding, contract performance, and contract administration procedures for small business concerns.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3687.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1123 | 41:405a (last sentence). | Pub. L. 95–507, title II, §222 (last sentence), Oct. 24, 1978, 92 Stat. 1771. |
§1124. Tests of innovative procurement methods and procedures
(a)
(1) ascertain the need for and specify the objectives of the program;
(2) develop the guidelines and procedures for carrying out the program and the criteria to be used in measuring the success of the program;
(3) evaluate the potential costs and benefits which may be derived from the innovative procurement methods and procedures tested under the program;
(4) select the appropriate executive agencies or components of executive agencies to carry out the program;
(5) specify the categories and types of products or services to be procured under the program; and
(6) develop the methods to be used to analyze the results of the program.
(b)
(c)
(1) a description of the proposed program (including the scope and purpose of the proposed program);
(2) the procedures to be followed in carrying out the proposed program;
(3) the provisions of law affected and the application of any provision of law that must be waived in order to carry out the proposed program; and
(4) the executive agencies involved in carrying out the proposed program.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3688.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1124(a) | 41:413(a) (1st, 2d sentences). | Pub. L. 93–400, §15, as added Pub. L. 98–191, §7, Dec. 1, 1983, 97 Stat. 1329; Pub. L. 104–201, title X, §1074(f)(2), Sept. 23, 1996, 110 Stat. 2661. |
| 1124(b) | 41:413(a) (last sentence). | |
| 1124(c) | 41:413(b). |
In subsection (c), the words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Operations" on authority of section 1(a)(6) of Public Law 104–14 (2 U.S.C. note prec. 21), Rule X(1)(h) of the Rules of the House of Representatives, adopted by House Resolution No. 5 (106th Congress, January 6, 1999), and Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007). The words "Committee on Homeland Security and Governmental Affairs" are substituted for "Committee on Governmental Affairs" on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
§1125. Recipients of Federal grants or assistance
(a)
(b)
(1) permit the Administrator to authorize procurement or supply support, either directly or indirectly, to a recipient of a Federal grant or assistance; or
(2) authorize action by a recipient contrary to State and local law in the case of a program to provide a Federal grant or assistance to a State or political subdivision.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3688.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1125(a) | 41:405(i)(1). | Pub. L. 93–400, §6(i), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1328. |
| 1125(b) | 41:405(i)(2). |
§1126. Policy regarding consideration of contractor past performance
(a)
(1) standards for evaluating past performance with respect to cost (when appropriate), schedule, compliance with technical or functional specifications, and other relevant performance factors that facilitate consistent and fair evaluation by all executive agencies;
(2) policies for the collection and maintenance of information on past contract performance that, to the maximum extent practicable, facilitate automated collection, maintenance, and dissemination of information and provide for ease of collection, maintenance, and dissemination of information by other methods, as necessary;
(3) policies for ensuring that—
(A) offerors are afforded an opportunity to submit relevant information on past contract performance, including performance under contracts entered into by the executive agency concerned, other departments and agencies of the Federal Government, agencies of State and local governments, and commercial customers; and
(B) the information submitted by offerors is considered; and
(4) the period for which information on past performance of offerors may be maintained and considered.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3689.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1126(a) | 41:405(j)(1). | Pub. L. 93–400, §6(j), as added Pub. L. 103–355, title I, §1091(b)(2), Oct. 13, 1994, 108 Stat. 3272. |
| 1126(b) | 41:405(j)(2). |
Statutory Notes and Related Subsidiaries
Inclusion of Data on Contractor Performance in Past Performance Databases for Executive Agency Source Selection Decisions
Pub. L. 112–239, div. A, title VIII, §853, Jan. 2, 2013, 126 Stat. 1856, provided that:
"(a)
"(1)
"(2)
"(b)
"(1) establish standards for the timeliness and completeness of past performance submissions for purposes of databases described in subsection (a);
"(2) assign responsibility and management accountability for the completeness of past performance submissions for such purposes; and
"(3) ensure that past performance submissions for such purposes are consistent with award fee evaluations in cases where such evaluations have been conducted.
"(c)
"(1) That affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases in accordance with subsection (a).
"(2) That such contractors are afforded up to 14 calendar days, from the date of delivery of the information provided in accordance with paragraph (1), to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases.
"(3) That agency evaluations of contractor past performance, including any comments, rebuttals, or additional information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1).
"(d)
"(e)
"(1) The extent to which the strategy required by subsection (a) is consistent with the strategy developed by the Under Secretary of Defense for Acquisition, Technology, and Logistics as described in subsection (a)(2).
"(2) The extent to which the actions of the Federal Acquisition Regulatory Council pursuant to this section have otherwise achieved the objectives of this section.
"(f)
"(1) The term 'appropriate committees of Congress' means—
"(A) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on Appropriations of the Senate; and
"(B) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability], and the Committee on Appropriations of the House of Representatives.
"(2) The term 'executive agency' has the meaning given that term in section 133 of title 41, United States Code, except that the term excludes the Department of Defense and the military departments.
"(3) The term 'Federal Acquisition Regulatory Council' means the Federal Acquisition Regulatory Council under section 1302(a) of title 41, United States Code."
Congressional Findings Regarding Consideration of Past Contract Performance
Pub. L. 103–355, title I, §1091(b)(1), Oct. 13, 1994, 108 Stat. 3272, provided that: "Congress makes the following findings:
"(A) Past contract performance of an offeror is one of the relevant factors that a contracting official of an executive agency should consider in awarding a contract.
"(B) It is appropriate for a contracting official to consider past contract performance of an offeror as an indicator of the likelihood that the offeror will successfully perform a contract to be awarded by that official."
§1127. Determining benchmark compensation amount
(a)
(1)
(2)
(3)
(4)
(5)
(A) organized under the laws of a State of the United States, the District of Columbia, Puerto Rico, or a possession of the United States; and
(B) whose voting stock is publicly traded.
(6)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3689; Pub. L. 117–81, div. A, title XVII, §1702(h)(1), Dec. 27, 2021, 135 Stat. 2158.)
Repeal of Section
Pub. L. 113–67, div. A, title VII, §702(b)(1), (c), Dec. 26, 2013, 127 Stat. 1189, repealed this section applicable only with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after Dec. 26, 2013.
Pub. L. 113–66, div. A, title VIII, §811(c)(1), (d), Dec. 26, 2013, 127 Stat. 806, repealed this section applicable with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after Dec. 26, 2013.
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1127(a)(1) | 41:435(b). | Pub. L. 93–400, §39, as added Pub. L. 105–85, title VIII, §808(c)(1), Nov. 18, 1997, 111 Stat. 1837; Pub. L. 105–261, title VIII, §804(c)(1), Oct. 17, 1998, 112 Stat. 2083. |
| 1127(a)(2) | 41:435(c)(3). | |
| 1127(a)(3) | 41:435(c)(1). | |
| 1127(a)(4) | 41:435(c)(5). | |
| 1127(a)(5) | 41:435(c)(4). | |
| 1127(a)(6) | 41:435(c)(2). | |
| 1127(b) | 41:435(a). |
Editorial Notes
Amendments
2021—Subsec. (b). Pub. L. 117–81 substituted "section 3744(a)(16)" for "section 2324(e)(1)(P)".
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal by Pub. L. 113–67 applicable only with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after Dec. 26, 2013, see section 702(c) of Pub. L. 113–67, set out as an Effective Date of 2013 Amendment note under section 4304 of this title.
Repeal by Pub. L. 113–66 applicable with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after Dec. 26, 2013, see section 811(d) of Pub. L. 113–66, set out as an Effective Date of 2013 Amendment note under section 4304 of this title.
Exclusive Applicability of Provisions Limiting Allowability of Compensation for Certain Contractor Personnel
Pub. L. 105–85, div. A, title VIII, §808(f), Nov. 18, 1997, 111 Stat. 1838, provided that: "Notwithstanding any other provision of law, no other limitation in law on the allowability of costs of compensation of senior executives under covered contracts shall apply to such costs of compensation incurred after January 1, 1998."
Definitions for Purposes of Section 808 of Pub. L. 105–85
Pub. L. 105–85, div. A, title VIII, §808(g), Nov. 18, 1997, 111 Stat. 1838, as amended by Pub. L. 105–261, div. A, title VIII, §804(c)(2), Oct. 17, 1998, 112 Stat. 2083, provided that: "In this section [see Tables for classification]:
"(1) The term 'covered contract' has the meaning given such term in section 2324(l) of title 10, United States Code [see 10 U.S.C. 3741], and section 306(l) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C. 256(l)) [see 41 U.S.C. 4301].
"(2) The terms 'compensation' and 'senior executives' have the meanings given such terms in section 2324(l) of title 10, United States Code [see 10 U.S.C. 3741 as to "compensation" and former 10 U.S.C. 2324(l)(5) as to "senior executives"], and section 306(m) of the Federal Property and Administrative Services Act of 1949 [see 41 U.S.C. 4301]."
§1128. Maintaining necessary capability with respect to acquisition of architectural and engineering services
The Administrator, in consultation with the Secretary of Defense, the Administrator of General Services, and the Director of the Office of Personnel Management, shall develop and implement a plan to ensure that the Federal Government maintains the necessary capability with respect to the acquisition of architectural and engineering services to—
(1) ensure that Federal Government employees have the expertise to determine agency requirements for those services;
(2) establish priorities and programs, including acquisition plans;
(3) establish professional standards;
(4) develop scopes of work; and
(5) award and administer contracts for those services.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3690.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1128 | 41:433 note. | Pub. L. 108–136, title XIV, §1414, Nov. 24, 2003, 117 Stat. 1666. |
§1129. Center of excellence in contracting for services
The Administrator shall maintain a center of excellence in contracting for services. The center shall assist the acquisition community by identifying, and serving as a clearinghouse for, best practices in contracting for services in the public and private sectors.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3690.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1129 | 41:405 note. | Pub. L. 108–136, title XIV, §1431(b), Nov. 24, 2003, 117 Stat. 1671. |
The words "Not later than 180 days after the date of the enactment of this Act" are omitted, and the word "maintain" is substituted for "establish", to eliminate obsolete words.
§1130. Effect of division on other law
This division does not impair or affect the authorities or responsibilities relating to the procurement of real property conferred by division C of this subtitle and chapters 1 to 11 of title 40.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3690.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1130 | 41:405(h)(1). | Pub. L. 93–400, §6(h)(1), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1328; Pub. L. 104–106, title LVI, §5607(d), Feb. 10, 1996, 110 Stat. 702. |
§1131. Annual report
The Administrator annually shall submit to Congress an assessment of the progress made in executive agencies in implementing the policy regarding major acquisitions that is stated in section 3103(a) of this title. The Administrator shall use data from existing management systems in making the assessment.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3690.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1131 | 41:405(k). | Pub. L. 93–400, §6(k), as added Pub. L. 103–355, title V, §5051(b), Oct. 13, 1994, 108 Stat. 3351; Pub. L. 105–85, title VIII, §851(b), Nov. 18, 1997, 111 Stat. 1851. |
CHAPTER 12—FEDERAL ACQUISITION INSTITUTE
§1201. Federal Acquisition Institute
(a)
(1) foster and promote the development of a professional acquisition workforce Government-wide;
(2) promote and coordinate Government-wide research and studies to improve the procurement process and the laws, policies, methods, regulations, procedures, and forms relating to acquisition by the executive agencies;
(3) collect data and analyze acquisition workforce data from the Office of Personnel Management, the heads of executive agencies, and, through periodic surveys, from individual employees;
(4) periodically analyze acquisition career fields to identify critical competencies, duties, tasks, and related academic prerequisites, skills, and knowledge;
(5) coordinate and assist agencies in identifying and recruiting highly qualified candidates for acquisition fields;
(6) develop instructional materials for acquisition personnel in coordination with private and public acquisition colleges and training facilities;
(7) evaluate the effectiveness of training and career development programs for acquisition personnel;
(8) promote the establishment and utilization of academic programs by colleges and universities in acquisition fields;
(9) facilitate, to the extent requested by agencies, interagency intern and training programs;
(10) collaborate with other civilian agency acquisition training programs to leverage training supporting all members of the civilian agency acquisition workforce;
(11) assist civilian agencies with their acquisition and capital planning efforts; and
(12) perform other career management or research functions as directed by the Administrator.
(b)
(1)
(2)
(c)
(1)
(2)
(3)
(A) meets its statutory requirements;
(B) meets the needs of the Federal acquisition workforce;
(C) implements appropriate programs;
(D) coordinates with appropriate organizations and groups that have an impact on the Federal acquisition workforce;
(E) develops and implements plans to meet future challenges of the Federal acquisition workforce; and
(F) works closely with the Defense Acquisition University.
(4)
(d)
(e)
(Added Pub. L. 112–81, div. A, title VIII, §864(b)(1), Dec. 31, 2011, 125 Stat. 1523.)
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Construction
Pub. L. 112–81, div. A, title VIII, §864(e), Dec. 31, 2011, 125 Stat. 1525, provided that: "Nothing in this section [enacting this chapter and amending sections 1122, 1703, and 1704 of this title], or the amendments made by this section, shall be construed to preclude the Secretary of Defense from establishing acquisition workforce policies, procedures, training standards, and certification requirements for acquisition positions in the Department of Defense, as provided in chapter 87 of title 10, United States Code."
Training Course on Human Trafficking and Government Contracting
Pub. L. 115–425, title I, §113, Jan. 8, 2019, 132 Stat. 5477, provided that: "Any curriculum, including any continuing education curriculum, for the acquisition workforce used by the Federal Acquisition Institute established under section 1201 of title 41, United States Code, shall include at least 1 course, lasting at least 30 minutes, regarding the law and regulations relating to human trafficking and contracting with the Federal Government."
CHAPTER 13—ACQUISITION COUNCILS
SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY COUNCIL
SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL
SUBCHAPTER III—FEDERAL ACQUISITION SUPPLY CHAIN SECURITY
Editorial Notes
Amendments
2018—Pub. L. 115–390, title II, §202(b), Dec. 21, 2018, 132 Stat. 5188, added item for subchapter III and items 1321 to 1328.
SUBCHAPTER I—FEDERAL ACQUISITION REGULATORY COUNCIL
§1301. Definition
In this subchapter, the term "Council" means the Federal Acquisition Regulatory Council established under section 1302(a) of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3691.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1301 | 41:403(17). | Pub. L. 93–400, §4(17), as added Pub. L. 108–375, title VIII, §807(b), Oct. 28, 2004, 118 Stat. 2011. |
§1302. Establishment and membership
(a)
(b)
(1)
(A) the Administrator;
(B) the Secretary of Defense;
(C) the Administrator of National Aeronautics and Space; and
(D) the Administrator of General Services.
(2)
(A)
(i) the official assigned by statute with the responsibility for acquisition policy in each of their respective agencies or, in the case of the Secretary of Defense, an official at an organizational level not lower than an Assistant Secretary of Defense within the Office of the Under Secretary of Defense for Acquisition and Sustainment; or
(ii) if no official of that agency is assigned by statute with the responsibility for acquisition policy for that agency, the official designated pursuant to section 1702(c) of this title.
(B)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3691; Pub. L. 116–92, div. A, title IX, §902(88), Dec. 20, 2019, 133 Stat. 1554.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1302(a) | 41:421(a). | Pub. L. 93–400, §25(a), (b), as added Pub. L. 100–679, §4, Nov. 17, 1988, 102 Stat. 4056; Pub. L. 101–510, title VIII, §807, Nov. 5, 1990, 104 Stat. 1593; Pub. L. 104–106, title XLIII, §4322(a)(2), Feb. 10, 1996, 110 Stat. 677. |
| 1302(b) | 41:421(b). |
In subsection (a), the words "(hereinafter in this section referred to as the 'Council')" are omitted as unnecessary.
In subsection (b)(2)(A)(i), the words "Under Secretary of Defense for Acquisition, Technology, and Logistics" are substituted for "Under Secretary of Defense for Acquisition and Technology" because of section 911(a)(1) of the National Defense Authorization Act for Fiscal Year 2000 (Public Law 106–65, 113 Stat. 717, 10 U.S.C. 133 note).
In subsection (b)(2)(A)(ii), the cross-reference to section 16(3) of the Office of Federal Procurement Policy Act (41:414(3)) is treated as a cross-reference to section 16(c) of the Act to reflect the amendment of section 16 by section 1421(a)(1) of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136, 117 Stat. 1666).
Editorial Notes
Amendments
2019—Subsec. (b)(2)(A)(i). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".
Statutory Notes and Related Subsidiaries
Status of Director of Defense Procurement
Pub. L. 102–190, div. A, title VIII, §809, Dec. 5, 1991, 105 Stat. 1423, as amended by Pub. L. 103–160, div. A, title IX, §904(f), Nov. 30, 1993, 107 Stat. 1729; Pub. L. 106–65, div. A, title IX, §911(a)(1), Oct. 5, 1999, 113 Stat. 717, provided that: "For the purposes of the amendment made by section 807 of the National Defense Authorization Act for Fiscal Year 1991 (Public Law 101–510; 104 Stat. 1593) to section 25(b)(2) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 421(b)(2)) [now 41 U.S.C. 1302(b)(2)], the Director of Defense Procurement of the Department of Defense shall be considered to be an official at an organizational level of an Assistant Secretary of Defense within the Office of the Under Secretary of Defense for Acquisition, Technology, and Logistics."
§1303. Functions and authority
(a)
(1)
(2)
(A) regulations essential to implement Government-wide policies and procedures within the agency; and
(B) additional policies and procedures required to satisfy the specific and unique needs of the agency.
(3)
(4)
(A)
(B)
(5)
(6)
(b)
(1)
(A) approve or disapprove all regulations relating to procurement that are proposed for public comment, prescribed in final form, or otherwise made effective by that agency before the regulation may be prescribed in final form, or otherwise made effective, except that the official may grant an interim approval, without review, for not more than 60 days for a procurement regulation in urgent and compelling circumstances;
(B) carry out the responsibilities of that agency set forth in chapter 35 of title 44 for each information collection request that relates to procurement rules or regulations; and
(C) eliminate or reduce—
(i) any redundant or unnecessary levels of review and approval in the procurement system of that agency; and
(ii) redundant or unnecessary procurement regulations which are unique to that agency.
(2)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3691; Pub. L. 117–81, div. A, title XVII, §1702(h)(2), Dec. 27, 2021, 135 Stat. 2158
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1303(a) | 41:421(c). | Pub. L. 93–400, §25(c)–(f), as added Pub. L. 100–679, §4, Nov. 17, 1988, 102 Stat. 4056; Pub. L. 104–201, title VIII, §822, title X, §1074(f)(3), Sept. 23, 1996, 110 Stat. 2609, 2661; Pub. L. 105–85, title VIII, §841(d), Nov. 18, 1997, 111 Stat. 1843. |
| 1303(b) | 41:421(d). | |
| 1303(c) | 41:421(e). | |
| 1303(d) | 41:421(f). |
In subsection (a)(6), the text of 41:421(c)(6) (last sentence) is omitted because 41:407 was repealed by section 4305(b) of the National Defense Authorization Act of Fiscal Year 1996 (Public Law 104–106, 110 Stat. 665).
In subsection (b)(1)(A), the words "after 60 days after November 17, 1988" are omitted as obsolete.
In subsection (b)(1)(B), the words "(as that term is defined in section 3502(11) of title 44)" are omitted because chapter 35 of title 44 was amended generally by the Paperwork Reduction Act of 1995 (Public Law 104–13, 109 Stat. 163) and 44:3502 no longer defines "information collection request". The term "information collection request" is retained in this section of the revised title, however, because 44:ch. 35 still contains provisions about requests for collection of information.
Editorial Notes
References in Text
The National Aeronautics and Space Act of 1958, referred to in subsec. (a)(1), is Pub. L. 85–568, July 29, 1958, 72 Stat. 426, which was classified principally to chapter 26 (§2451 et seq.) of Title 42, The Public Health and Welfare, and was substantially repealed and restated as chapter 201 (§20101 et seq.) of Title 51, National and Commercial Space Programs, by Pub. L. 111–314, §§3, 6, Dec. 18, 2010, 124 Stat. 3328, 3444. For complete classification of this Act to the Code, see Short Title of 1958 Act note set out under section 10101 of Title 51 and Tables.
Amendments
2021—Subsec. (a)(1). Pub. L. 117–81 substituted "chapter 4 of title 10, chapter 137 legacy provisions (as such term is defined in section 3016 of title 10)" for "chapters 4 and 137 of title 10".
1 See References in Text note below.
§1304. Contract clauses and certifications
(a)
(1) clearly define what types of contract clauses are to be treated as nonstandard clauses; and
(2) require prior approval for the use of a nonstandard clause on a repetitive basis by an official at a level of responsibility above the contracting officer.
(b)
(1)
(2)
(A) the certification requirement is specifically imposed by statute; or
(B) written justification for the certification requirement is provided to the Administrator by the Council and the Administrator approves in writing the inclusion of the certification requirement.
(3)
(A)
(B)
(i) the certification requirement is specifically imposed by statute; or
(ii) written justification for the certification requirement is provided to the head of the executive agency by the senior procurement executive of the agency and the head of the executive agency approves in writing the inclusion of the certification requirement.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3693.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1304(a) | 41:425(a). | Pub. L. 93–400, §29, as added Pub. L. 103–355, title I, §1093, Oct. 13, 1994, 108 Stat. 3273; Pub. L. 104–106, title XLIII, §4301(b)(2)(A), (c), Feb. 10, 1996, 110 Stat. 657, 658. |
| 1304(b)(1) | 41:425(b). | |
| 1304(b)(2), (3) | 41:425(c). |
Statutory Notes and Related Subsidiaries
Current Certification Requirements
Pub. L. 104–106, div. D, title XLIII, §4301(b)(1), Feb. 10, 1996, 110 Stat. 656, provided that:
"(A) Not later than 210 days after the date of the enactment of this Act [Feb. 10, 1996], the Administrator for Federal Procurement Policy shall issue for public comment a proposal to amend the Federal Acquisition Regulation to remove from the Federal Acquisition Regulation certification requirements for contractors and offerors that are not specifically imposed by statute. The Administrator may omit such a certification requirement from the proposal only if—
"(i) the Federal Acquisition Regulatory Council provides the Administrator with a written justification for the requirement and a determination that there is no less burdensome means for administering and enforcing the particular regulation that contains the certification requirement; and
"(ii) the Administrator approves in writing the retention of the certification requirement.
"(B)(i) Not later than 210 days after the date of the enactment of this Act, the head of each executive agency that has agency procurement regulations containing one or more certification requirements for contractors and offerors that are not specifically imposed by statute shall issue for public comment a proposal to amend the regulations to remove the certification requirements. The head of the executive agency may omit such a certification requirement from the proposal only if—
"(I) the senior procurement executive for the executive agency provides the head of the executive agency with a written justification for the requirement and a determination that there is no less burdensome means for administering and enforcing the particular regulation that contains the certification requirement; and
"(II) the head of the executive agency approves in writing the retention of such certification requirement.
"(ii) For purposes of clause (i), the term 'head of the executive agency' with respect to a military department means the Secretary of Defense."
Executive Documents
Addressing Tax Delinquency by Government Contractors
Memorandum of President of the United States, Jan. 20, 2010, 75 F.R. 3979, provided:
Memorandum for the Heads of Executive Departments and Agencies
The Federal Government pays more than half a trillion dollars a year to contractors and has an important obligation to protect American taxpayer money and the integrity of the Federal acquisition process. Yet reports by the Government Accountability Office (GAO) state that Federal contracts are awarded to tens of thousands of companies with serious tax delinquencies. The total amount in unpaid taxes owed by these contracting companies is estimated to be more than $5 billion.
Too often, Federal contracting officials do not have the most basic information they need to make informed judgments about whether a company trying to win a Federal contract is delinquent in paying its taxes. We need to give our contracting officials the tools they need to protect taxpayer dollars.
Accordingly, I hereby direct the Commissioner of Internal Revenue (Commissioner) to direct a review of certifications of non-delinquency in taxes that companies bidding for Federal contracts are required to submit pursuant to a 2008 amendment to the Federal Acquisition Regulation. I further direct that the Commissioner report to me within 90 days on the overall accuracy of contractors' certifications.
I also direct the Director of the Office of Management and Budget, working with the Secretary of the Treasury and other agency heads, to evaluate practices of contracting officers and debarring officials in response to contractors' certifications of serious tax delinquencies and to provide me, within 90 days, recommendations on process improvements to ensure these contractors are not awarded new contracts, including a plan to make contractor certifications available in a Government-wide database, as is already being done with other information on contractors.
Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
SUBCHAPTER II—CHIEF ACQUISITION OFFICERS COUNCIL
§1311. Establishment and membership
(a)
(b)
(1) the Deputy Director for Management of the Office of Management and Budget;
(2) the Administrator;
(3) the Under Secretary of Defense for Acquisition and Sustainment;
(4) the chief acquisition officer of each executive agency that is required to have a chief acquisition officer under section 1702 of this title and the senior procurement executive of each military department; and
(5) any other senior agency officer of each executive agency, appointed by the head of the agency in consultation with the Chairman of the Council, who can effectively assist the Council in performing the functions set forth in section 1312(b) of this title and supporting the associated range of acquisition activities.
(c)
(1)
(2)
(3)
(4)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3694; Pub. L. 116–92, div. A, title IX, §902(89), Dec. 20, 2019, 133 Stat. 1554.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1311(a) | 41:414b(a). | Pub. L. 93–400, §16A(a)–(c), as added Pub. L. 108–136, title XIV, §1422(a), Nov. 24, 2003, 117 Stat. 1668. |
| 1311(b) | 41:414b(b)(1) (words before comma), (2)–(5). | |
| 1311(c)(1) | 41:414b(b)(1) (words after comma). | |
| 1311(c)(2) | 41:414b(c)(2). | |
| 1311(c)(3) | 41:414b(c)(1). | |
| 1311(c)(4) | 41:414b(c)(3). |
Editorial Notes
Amendments
2019—Subsec. (b)(3). Pub. L. 116–92 substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".
§1312. Functions
(a)
(b)
(1) Develop recommendations for the Director of the Office of Management and Budget on Federal acquisition policies and requirements.
(2) Share experiences, ideas, best practices, and innovative approaches related to Federal acquisition.
(3) Assist the Administrator in the identification, development, and coordination of multiagency projects and other innovative initiatives to improve Federal acquisition.
(4) Promote effective business practices that ensure the timely delivery of best value products to the Federal Government and achieve appropriate public policy objectives.
(5) Further integrity, fairness, competition, openness, and efficiency in the Federal acquisition system.
(6) Work with the Office of Personnel Management to assess and address the hiring, training, and professional development needs of the Federal Government related to acquisition.
(7) Work with the Administrator and the Federal Acquisition Regulatory Council to promote the business practices referred to in paragraph (4) and other results of the functions carried out under this subsection.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3694.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1312(a) | 41:414b(d). | Pub. L. 93–400, §16A(d), (e), as added Pub. L. 108–136, title XIV, §1422(a), Nov. 24, 2003, 117 Stat. 1668. |
| 1312(b) | 41:414b(e). |
SUBCHAPTER III—FEDERAL ACQUISITION SUPPLY CHAIN SECURITY
§1321. Definitions
In this subchapter:
(1)
(A) the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Select Committee on Intelligence, and the majority and minority leader of the Senate; and
(B) the Committee on Oversight and Government Reform, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Homeland Security, the Committee on Armed Services, the Committee on Energy and Commerce, the Permanent Select Committee on Intelligence, and the Speaker and minority leader of the House of Representatives.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(Added Pub. L. 115–390, title II, §202(a), Dec. 21, 2018, 132 Stat. 5178.)
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Effective Date
Pub. L. 115–390, title II, §202(c), Dec. 21, 2018, 132 Stat. 5188, provided that: "The amendments made by this section [enacting this subchapter] shall take effect on the date that is 90 days after the date of the enactment of this Act [Dec. 21, 2018] and shall apply to contracts that are awarded before, on, or after that date."
Pub. L. 115–390, title II, §205, Dec. 21, 2018, 132 Stat. 5193, provided that: "This title [see section 201 of Pub. L. 115–390, set out as a Short Title of 2018 note under section 101 of this title] shall take effect on the date that is 90 days after the date of the enactment of this Act [Dec. 21, 2018]."
Implementation
Pub. L. 115–390, title II, §202(d), Dec. 21, 2018, 132 Stat. 5188, provided that:
"(1)
"(2)
"(3)
"(A)
"(B)
§1322. Federal Acquisition Security Council establishment and membership
(a)
(b)
(1)
(A) The Office of Management and Budget.
(B) The General Services Administration.
(C) The Department of Homeland Security, including the Cybersecurity and Infrastructure Security Agency.
(D) The Office of the Director of National Intelligence, including the National Counterintelligence and Security Center.
(E) The Department of Justice, including the Federal Bureau of Investigation.
(F) The Department of Defense, including the National Security Agency.
(G) The Department of Commerce, including the National Institute of Standards and Technology.
(H) Such other executive agencies as determined by the Chairperson of the Council.
(2)
(A)
(i)
(ii)
(B)
(c)
(1)
(2)
(A) subject to subsection (d), developing a schedule for meetings of the Council;
(B) designating executive agencies to be represented on the Council under subsection (b)(1)(H);
(C) in consultation with the lead representative of each agency represented on the Council, developing a charter for the Council; and
(D) not later than 7 days after completion of the charter, submitting the charter to the appropriate congressional committees and leadership.
(d)
(Added Pub. L. 115–390, title II, §202(a), Dec. 21, 2018, 132 Stat. 5178.)
Editorial Notes
References in Text
The date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, referred to in subsecs. (b)(2)(A)(i), (c)(1), and (d), is the date of enactment of Pub. L. 115–390, which was approved Dec. 21, 2018.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title.
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
§1323. Functions and authorities
(a)
(1) Identifying and recommending development by the National Institute of Standards and Technology of supply chain risk management standards, guidelines, and practices for executive agencies to use when assessing and developing mitigation strategies to address supply chain risks, particularly in the acquisition and use of covered articles under section 1326(a) of this title.
(2) Identifying or developing criteria for sharing information with executive agencies, other Federal entities, and non-Federal entities with respect to supply chain risk, including information related to the exercise of authorities provided under this section and sections 1326 and 4713 of this title. At a minimum, such criteria shall address—
(A) the content to be shared;
(B) the circumstances under which sharing is mandated or voluntary; and
(C) the circumstances under which it is appropriate for an executive agency to rely on information made available through such sharing in exercising the responsibilities and authorities provided under this section and section 4713 of this title.
(3) Identifying an appropriate executive agency to—
(A) accept information submitted by executive agencies based on the criteria established under paragraph (2);
(B) facilitate the sharing of information received under subparagraph (A) to support supply chain risk analyses under section 1326 of this title, recommendations under this section, and covered procurement actions under section 4713 of this title;
(C) share with the Council information regarding covered procurement actions by executive agencies taken under section 4713 of this title; and
(D) inform the Council of orders issued under this section.
(4) Identifying, as appropriate, executive agencies to provide—
(A) shared services, such as support for making risk assessments, validation of products that may be suitable for acquisition, and mitigation activities; and
(B) common contract solutions to support supply chain risk management activities, such as subscription services or machine-learning-enhanced analysis applications to support informed decision making.
(5) Identifying and issuing guidance on additional steps that may be necessary to address supply chain risks arising in the course of executive agencies providing shared services, common contract solutions, acquisitions vehicles, or assisted acquisitions.
(6) Engaging with the private sector and other nongovernmental stakeholders in performing the functions described in paragraphs (1) and (2) and on issues relating to the management of supply chain risks posed by the acquisition of covered articles.
(7) Carrying out such other actions, as determined by the Council, that are necessary to reduce the supply chain risks posed by acquisitions and use of covered articles.
(b)
(c)
(1)
(A) recommending orders applicable to executive agencies requiring the exclusion of sources or covered articles from executive agency procurement actions (in this section referred to as "exclusion orders");
(B) recommending orders applicable to executive agencies requiring the removal of covered articles from executive agency information systems (in this section referred to as "removal orders");
(C) requesting and approving exceptions to an issued exclusion or removal order when warranted by circumstances, including alternative mitigation actions or other findings relating to the national interest, including national security reviews, national security investigations, or national security agreements; and
(D) ensuring that recommended orders do not conflict with standards and guidelines issued under section 11331 of title 40 and that the Council consults with the Director of the National Institute of Standards and Technology regarding any recommended orders that would implement standards and guidelines developed by the National Institute of Standards and Technology.
(2)
(A) information necessary to positively identify the sources or covered articles recommended for exclusion or removal;
(B) information regarding the scope and applicability of the recommended exclusion or removal order;
(C) a summary of any risk assessment reviewed or conducted in support of the recommended exclusion or removal order;
(D) a summary of the basis for the recommendation, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk;
(E) a description of the actions necessary to implement the recommended exclusion or removal order; and
(F) where practicable, in the Council's sole and unreviewable discretion, a description of mitigation steps that could be taken by the source that may result in the Council rescinding a recommendation.
(3)
(A) that a recommendation has been made;
(B) of the criteria the Council relied upon under paragraph (1) and, to the extent consistent with national security and law enforcement interests, of information that forms the basis for the recommendation;
(C) that, within 30 days after receipt of notice, the source may submit information and argument in opposition to the recommendation;
(D) of the procedures governing the review and possible issuance of an exclusion or removal order pursuant to paragraph (5); and
(E) where practicable, in the Council's sole and unreviewable discretion, a description of mitigation steps that could be taken by the source that may result in the Council rescinding the recommendation.
(4)
(A) an exclusion or removal order is issued pursuant to paragraph (5); and
(B) the source has been notified pursuant to paragraph (6).
(5)
(A)
(i) The Secretary of Homeland Security, for exclusion and removal orders applicable to civilian agencies, to the extent not covered by clause (ii) or (iii).
(ii) The Secretary of Defense, for exclusion and removal orders applicable to the Department of Defense and national security systems other than sensitive compartmented information systems.
(iii) The Director of National Intelligence, for exclusion and removal orders applicable to the intelligence community and sensitive compartmented information systems, to the extent not covered by clause (ii).
(B)
(C)
(D)
(E)
(6)
(A) notify any source named in the order of—
(i) the exclusion or removal order; and
(ii) to the extent consistent with national security and law enforcement interests, information that forms the basis for the order;
(B) provide classified or unclassified notice of the exclusion or removal order to the appropriate congressional committees and leadership; and
(C) provide the exclusion or removal order to the agency identified in subsection (a)(3).
(7)
(d)
(e)
(f)
(1) to limit the authority of the Office of Federal Procurement Policy to carry out the responsibilities of that Office under any other provision of law; or
(2) to authorize the issuance of an exclusion or removal order based solely on the fact of foreign ownership of a potential procurement source that is otherwise qualified to enter into procurement contracts with the Federal Government.
(Added Pub. L. 115–390, title II, §202(a), Dec. 21, 2018, 132 Stat. 5180.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title.
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
§1324. Strategic plan
(a)
(1) the criteria and processes required under section 1323(a) of this title, including a threshold and requirements for sharing relevant information about such risks with all executive agencies and, as appropriate, with other Federal entities and non-Federal entities;
(2) an identification of existing authorities for addressing such risks;
(3) an identification and promulgation of best practices and procedures and available resources for executive agencies to assess and mitigate such risks;
(4) recommendations for any legislative, regulatory, or other policy changes to improve efforts to address such risks;
(5) recommendations for any legislative, regulatory, or other policy changes to incentivize the adoption of best practices for supply chain risk management by the private sector;
(6) an evaluation of the effect of implementing new policies or procedures on existing contracts and the procurement process;
(7) a plan for engaging with executive agencies, the private sector, and other nongovernmental stakeholders to address such risks;
(8) a plan for identification, assessment, mitigation, and vetting of supply chain risks from existing and prospective information and communications technology made available by executive agencies to other executive agencies through common contract solutions, shared services, acquisition vehicles, or other assisted acquisition services; and
(9) plans to strengthen the capacity of all executive agencies to conduct assessments of—
(A) the supply chain risk posed by the acquisition of covered articles; and
(B) compliance with the requirements of this subchapter.
(b)
(Added Pub. L. 115–390, title II, §202(a), Dec. 21, 2018, 132 Stat. 5184.)
Editorial Notes
References in Text
The date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, referred to in subsec. (a), is the date of enactment of Pub. L. 115–390, which was approved Dec. 21, 2018.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title.
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
§1325. Annual report
Not later than December 31 of each year, the Chairperson of the Council shall submit to the appropriate congressional committees and leadership a report on the activities of the Council during the preceding 12-month period.
(Added Pub. L. 115–390, title II, §202(a), Dec. 21, 2018, 132 Stat. 5184.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title.
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
§1326. Requirements for executive agencies
(a)
(1) assessing the supply chain risk posed by the acquisition and use of covered articles and avoiding, mitigating, accepting, or transferring that risk, as appropriate and consistent with the standards, guidelines, and practices identified by the Council under section 1323(a)(1); and
(2) prioritizing supply chain risk assessments conducted under paragraph (1) based on the criticality of the mission, system, component, service, or asset.
(b)
(1) developing an overall supply chain risk management strategy and implementation plan and policies and processes to guide and govern supply chain risk management activities;
(2) integrating supply chain risk management practices throughout the life cycle of the system, component, service, or asset;
(3) limiting, avoiding, mitigating, accepting, or transferring any identified risk;
(4) sharing relevant information with other executive agencies as determined appropriate by the Council in a manner consistent with section 1323(a) of this title;
(5) reporting on progress and effectiveness of the agency's supply chain risk management consistent with guidance issued by the Office of Management and Budget and the Council; and
(6) ensuring that all relevant information, including classified information, with respect to acquisitions of covered articles that may pose a supply chain risk, consistent with section 1323(a) of this title, is incorporated into existing processes of the agency for conducting assessments described in subsection (a) and ongoing management of acquisition programs, including any identification, investigation, mitigation, or remediation needs.
(c)
(1)
(2)
(3)
(d)
(1) assist executive agencies in conducting risk assessments described in subsection (a) and implementing mitigation requirements for information and communications technology; and
(2) provide such additional guidance or tools as are necessary to support actions taken by executive agencies.
(Added Pub. L. 115–390, title II, §202(a), Dec. 21, 2018, 132 Stat. 5184.)
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title.
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
§1327. Judicial review procedures
(a)
(b)
(1)
(2)
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
(D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (3); or
(E) not in accord with procedures required by law.
(3)
(4)
(A)
(B)
(i)
(ii)
(iii)
(I) Classified information.
(II) Sensitive security information, as defined by section 1520.5 of title 49, Code of Federal Regulations.
(III) Privileged law enforcement information.
(IV) Information obtained or derived from any activity authorized under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), except that, with respect to such information, subsections (c), (e), (f), (g), and (h) of section 106 (50 U.S.C. 1806), subsections (d), (f), (g), (h), and (i) of section 305 (50 U.S.C. 1825), subsections (c), (e), (f), (g), and (h) of section 405 (50 U.S.C. 1845), and section 706 (50 U.S.C. 1881e) of that Act shall not apply.
(V) Information subject to privilege or protections under any other provision of law.
(iv)
(v)
(C)
(D)
(c)
(1) has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.); and
(2) includes—
(A) any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation to require protection against unauthorized disclosure for reasons of national security; and
(B) any restricted data, as defined in section 11 of the Atomic Energy Act of 1954 (42 U.S.C. 2014).
(Added Pub. L. 115–390, title II, §202(a), Dec. 21, 2018, 132 Stat. 5185.)
Editorial Notes
References in Text
The Foreign Intelligence Surveillance Act of 1978, referred to in subsec. (b)(4)(B)(iii)(IV), is Pub. L. 95–511, Oct. 25, 1978, 92 Stat. 1783, which is classified principally to chapter 36 (§1801 et seq.) of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of Title 50 and Tables.
The Classified Information Procedures Act, referred to in subsec. (c)(1), is Pub. L. 96–456, Oct. 15, 1980, 94 Stat. 2025, which is set out in the Appendix to Title 18, Crimes and Criminal Procedure.
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title.
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
§1328. Termination
This subchapter shall terminate on December 31, 2033.
(Added Pub. L. 115–390, title II, §202(a), Dec. 21, 2018, 132 Stat. 5188; amended Pub. L. 117–263, div. E, title LIX, §5949(k)(1), Dec. 23, 2022, 136 Stat. 3492.)
Editorial Notes
Amendments
2022—Pub. L. 117–263 substituted "December 31, 2033" for "the date that is 5 years after the date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018".
Statutory Notes and Related Subsidiaries
Effective Date
Section effective 90 days after Dec. 21, 2018, and applicable to contracts that are awarded before, on, or after that date, see section 202(c) of Pub. L. 115–390, set out as a note under section 1321 of this title.
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
CHAPTER 15—COST ACCOUNTING STANDARDS
§1501. Cost Accounting Standards Board
(a)
(b)
(1)
(A) 2 representatives of the Federal Government—
(i) one of whom is a representative of the Department of Defense appointed by the Secretary of Defense; and
(ii) one of whom is an officer or employee of the General Services Administration appointed by the Administrator of General Services.
(B) 2 individuals from the private sector, each of whom is appointed by the Administrator, and—
(i) one of whom is a representative of industry; and
(ii) one of whom is particularly knowledgeable about cost accounting problems and systems and, if possible, is a representative of a public accounting firm.
(2)
(A)
(B)
(3)
(c)
(1) ensure that the cost accounting standards used by Federal contractors rely, to the maximum extent practicable, on commercial standards and accounting practices and systems;
(2) within one year after the date of enactment of this subsection, and on an ongoing basis thereafter, review any cost accounting standards established under section 1502 of this title and conform such standards, where practicable, to Generally Accepted Accounting Principles; and
(3) annually review disputes involving such standards brought to the boards established in section 7105 of this title or Federal courts, and consider whether greater clarity in such standards could avoid such disputes.
(d)
(e)
(1) to conform the cost accounting standards established under section 1502 of this title with Generally Accepted Accounting Principles; and
(2) to minimize the burden on contractors while protecting the interests of the Federal Government.
(f)
(1) without regard to the provisions of title 5 governing appointments in the competitive service—
(A) shall appoint an executive secretary; and
(B) may appoint, or detail pursuant to section 3341 of title 5, two additional staff members; and
(2) may pay those employees without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5 relating to classification and General Schedule pay rates, except that those employees may not receive pay in excess of the maximum rate of basic pay payable for level IV of the Executive Schedule.
(g)
(h)
(1) the Board, with the consent of the head of a Federal agency, may use, without reimbursement, personnel of that agency; and
(2) the Administrator, after consultation with the Board, may procure temporary and intermittent services of personnel under section 3109(b) of title 5.
(i)
(1)
(2)
(3)
(4)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3695; Pub. L. 114–328, div. A, title VIII, §820(a)(1), (3), Dec. 23, 2016, 130 Stat. 2273, 2274.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1501(a) | 41:422(a)(1) (1st sentence). | Pub. L. 93–400, §26(a)–(e), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4058. |
| 1501(b) | 41:422(a)(1) (last sentence), (2). | |
| 1501(c) | 41:422(b). | |
| 1501(d) | 41:422(c). | |
| 1501(e) | 41:422(d). | |
| 1501(f) | 41:422(e). |
In subsection (b)(2), the text of 41:422(a)(2)(C) is omitted as obsolete.
In subsection (b)(2)(A), the last sentence is substituted for "of the initial members, two shall be appointed for terms of two years, one shall be appointed for a term of three years, and one shall be appointed for a term of four years" because the initial members have already been appointed.
In subsection (c)(2), the reference to section 5376 of title 5 is substituted for the reference to grade GS–18 of the General Schedule because of section 529 [title I, §101(c)(1)] of the Treasury, Postal Service, and General Government Appropriations Act, 1991 (Public Law 101–509, 104 Stat. 1442, 5:5376 note).
In subsection (f)(1), the words "Except as otherwise provided in subsection (a) of this section" are omitted because 41:422(a) does not provide any relevant exception.
In subsection (f)(2), the words "private sector" are substituted for "private life" for consistency with subsection (b)(1)(B) of the revised section.
In subsection (f)(3), the words "Executive Schedule" are substituted for "Federal Executive Salary Schedule under section 5316 of title 5" for consistency and to eliminate unnecessary words.
Senate Revision Amendment
In subsec. (c)(2), "for level IV of the Executive Schedule" substituted for "under section 5376 of title 5" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010).
Editorial Notes
References in Text
The date of enactment of this subsection, referred to in subsec. (c)(2), is the date of enactment of Pub. L. 114–328, which was approved Dec. 23, 2016.
Level IV of the Executive Schedule, referred to in subsec. (f)(2), is set out under section 5315 of Title 5, Government Organization and Employees.
Amendments
2016—Subsec. (b)(1)(B)(ii). Pub. L. 114–328, §820(a)(1)(A), inserted "and, if possible, is a representative of a public accounting firm" after "systems".
Subsecs. (c) to (e). Pub. L. 114–328, §820(a)(1)(C), added subsecs. (c) to (e). Former subsecs. (c) to (e) redesignated (f) to (h), respectively.
Subsec. (f). Pub. L. 114–328, §820(a)(1)(B), (D), redesignated subsec. (c) as (f) and amended it generally. Prior to amendment, text read as follows: "The Administrator, after consultation with the Board, may—
"(1) appoint an executive secretary and 2 additional staff members without regard to the provisions of title 5 governing appointments in the competitive service; and
"(2) pay those employees without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5 relating to classification and General Schedule pay rates, except that those employees may not receive pay in excess of the maximum rate of basic pay payable for level IV of the Executive Schedule."
Subsecs. (g) to (i). Pub. L. 114–328, §820(a)(1)(B), redesignated subsecs. (d) to (f) as (g) to (i), respectively.
Subsec. (i)(1). Pub. L. 114–328, §820(a)(3)(A), substituted "subsection (h)(1)" for "subsection (e)(1)".
Subsec. (i)(3). Pub. L. 114–328, §820(a)(3)(B), substituted "subsection (h)(2)" for "subsection (e)(2)".
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Effective Date of 2016 Amendment
Pub. L. 114–328, div. A, title VIII, §820(d), Dec. 23, 2016, 130 Stat. 2276, provided that: "The amendments made by this section [enacting section 190 of Title 10, Armed Forces, and amending this section and section 1502 of this title] shall take effect on October 1, 2018."
§1502. Cost accounting standards
(a)
(1)
(2)
(b)
(1)
(A)
(B)
(C)
(i) a contract or subcontract for the acquisition of a commercial product or commercial service;
(ii) a contract or subcontract where the price negotiated is based on a price set by law or regulation;
(iii) a firm, fixed-price contract or subcontract awarded on the basis of adequate price competition without submission of certified cost or pricing data; or
(iv) a contract or subcontract with a value of less than $7,500,000 if, when the contract or subcontract is entered into, the segment of the contractor or subcontractor that will perform the work has not been awarded at least one contract or subcontract with a value of more than $7,500,000 that is covered by the standards.
(2)
(A) exempt classes of contractors and subcontractors from the requirements of this chapter; and
(B) establish procedures for the waiver of the requirements of this chapter for individual contracts and subcontracts.
(3)
(A)
(i) is primarily engaged in the sale of commercial products or commercial services; and
(ii) would not otherwise be subject to the cost accounting standards under this section.
(B)
(C)
(D)
(i) criteria for selecting an official to be delegated authority to grant waivers under subparagraph (A) or (B); and
(ii) the specific circumstances under which the waiver may be granted.
(E)
(c)
(1) take into account, after consultation and discussions with the Comptroller General, professional accounting organizations, contractors, and other interested parties—
(A) the probable costs of implementation, including any inflationary effects, compared to the probable benefits;
(B) the advantages, disadvantages, and improvements anticipated in the pricing and administration of, and settlement of disputes concerning, contracts; and
(C) the scope of, and alternatives available to, the action proposed to be taken;
(2) prepare and publish a report in the Federal Register on the issues reviewed under paragraph (1);
(3)(A) publish an advanced notice of proposed rulemaking in the Federal Register to solicit comments on the report prepared under paragraph (2);
(B) provide all parties affected at least 60 days after publication to submit their views and comments; and
(C) during the 60-day period, consult with the Comptroller General and consider any recommendation the Comptroller General may make; and
(4) publish a notice of proposed rulemaking in the Federal Register and provide all parties affected at least 60 days after publication to submit their views and comments.
(d)
(e)
(f)
(1) disclose in writing their cost accounting practices, including methods of distinguishing direct costs from indirect costs and the basis used for allocating indirect costs; and
(2) agree to a contract price adjustment, with interest, for any increased costs paid to the contractor or subcontractor by the Federal Government because of a change in the contractor's or subcontractor's cost accounting practices or a failure by the contractor or subcontractor to comply with applicable cost accounting standards.
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3696; Pub. L. 114–328, div. A, title VIII, §820(a)(2), Dec. 23, 2016, 130 Stat. 2274; Pub. L. 115–232, div. A, title VIII, §836(b)(1), Aug. 13, 2018, 132 Stat. 1860; Pub. L. 117–81, div. A, title XVII, §1702(h)(3), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1502(a) | 41:422(f)(1), (3). | Pub. L. 93–400, §26(f), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4060; Pub. L. 103–355, title II, §2453, title VIII, §8301(d), Oct. 13, 1994, 108 Stat. 3326, 3397; Pub. L. 104–106, title XLII, §4205, title XLIII, §4321(h)(4), Feb. 10, 1996, 110 Stat. 656, 675; Pub. L 106–65, title VIII, §802(a), (b), Oct. 5, 1999, 113 Stat. 701; Pub. L 109–163, div. A, title VIII, §822, Jan. 6, 2006, 119 Stat. 3386. |
| 1502(b)(1) | 41:422(f)(2), (4). | |
| 1502(b)(2) | 41:422(f)(4). | |
| 1502(b)(3) | 41:422(f)(5). | |
| 1502(c) | 41:422(g)(1). | Pub. L. 93–400, §26(g), (h)(1), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4061. |
| 1502(d) | 41:422(g)(2) (1st, 2d sentences). | |
| 1502(e) | 41:422(g)(2) (last sentence). | |
| 1502(f) | 41:422(h)(1). | |
| 1502(g) | 41:422(g)(3). |
In subsection (a)(1), the word "make" is omitted as being included in "prescribe".
In subsection (b)(2)(A), the word "categories" is omitted as being included in "classes".
In subsection (b)(3)(A)(ii), the words "as in effect on or after the effective date of this paragraph" are omitted as obsolete.
Editorial Notes
Amendments
2021—Subsec. (b)(1)(B). Pub. L. 117–81 substituted "section 3702(a)(1)(A)" for "section 2306a(a)(1)(A)(i)".
2018—Subsec. (b)(1)(A). Pub. L. 115–232, §836(b)(1)(A), substituted "commercial products or commercial services" for "commercial items".
Subsec. (b)(1)(C)(i). Pub. L. 115–232, §836(b)(1)(B), substituted "commercial product or commercial service" for "commercial item".
Subsec. (b)(3)(A)(i). Pub. L. 115–232, §836(b)(1)(C), substituted "commercial products or commercial services" for "commercial items".
2016—Subsec. (b)(3)(A). Pub. L. 114–328 substituted "$100,000,000" for "$15,000,000" in introductory provisions.
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
Effective Date of 2016 Amendment
Amendment by Pub. L. 114–328 effective Oct. 1, 2018, see section 820(d) of Pub. L. 114–328, set out as a note under section 1501 of this title.
Effective Date of Amendment by Pub. L. 106–65; Regulations; Implementation; Construction
Pub. L. 106–65, div. A, title VIII, §802(c)–(e), (g)–(i), Oct. 5, 1999, 113 Stat. 701, 702, provided that:
"(c)
"(2) Paragraph (1) requires only a change of the statement of a threshold condition in the regulation referred to by section number in that paragraph, and shall not be construed as—
"(A) a ratification or expression of approval of—
"(i) any aspect of the regulation; or
"(ii) the manner in which section 26 of the Office of Federal Procurement Policy Act [now 41 U.S.C. 1501 et seq.] is administered through the regulation; or
"(B) a requirement to apply the regulation.
"(d)
"(e)
"(2) Subsection (c) shall cease to be effective one year after the date on which final regulations issued in accordance with that subsection take effect.
"(g)
"(h)
"(1) any educational institution or federally funded research and development center that is associated with an educational institution in accordance with Office of Management and Budget Circular A–21, as in effect on January 1, 1999; or
"(2) any contract with a nonprofit entity that provides research and development and related products or services to the Department of Defense.
"(i)
"(1) contracts that are entered into on or after such effective date; and
"(2) determinations made on or after such effective date regarding whether a segment of a contractor or subcontractor is subject to the cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f)) [now 41 U.S.C. 1502(a), (b)], regardless of whether the contracts on which such determinations are made were entered into before, on, or after such date."
§1503. Contract price adjustment
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3699.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1503(a) | 41:422(h)(2). | Pub. L. 93–400, §26(h)(2)–(4), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4062. |
| 1503(b) | 41:422(h)(3). | |
| 1503(c) | 41:422(h)(4). |
§1504. Effect on other standards and regulations
(a)
(1) remain in effect until amended, superseded, or rescinded by the Board under this chapter; and
(2) are subject to the provisions of this division in the same manner as if prescribed by the Board under this division.
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3699.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1504(a) | 41:422(j)(1), (2). | Pub. L. 93–400, §26(j), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4062. |
| 1504(b) | 41:422(j)(3). | |
| 1504(c) | 41:422(j)(4). |
Editorial Notes
References in Text
Section 719 of the Defense Production Act of 1950, referred to in subsec. (a), is section 719 of act Sept. 8, 1950, ch. 932, title VII, as added Pub. L. 91–379, title I, §103, Aug. 15, 1970, 84 Stat. 796, which was classified to section 2168 of the former Appendix to Title 50, War and National Defense, prior to repeal by Pub. L. 100–679, §5(b), Nov. 17, 1988, 102 Stat. 4063.
1 See References in Text note below.
§1505. Examinations
To determine whether a contractor or subcontractor has complied with cost accounting standards prescribed under this chapter and has followed consistently the contractor's or subcontractor's disclosed cost accounting practices, an authorized representative of the head of the agency concerned, of the offices of inspector general established under chapter 4 of title 5, or of the Comptroller General shall have the right to examine and copy documents, papers, or records of the contractor or subcontractor relating to compliance with the standards.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3700; Pub. L. 117–286, §4(b)(71), Dec. 27, 2022, 136 Stat. 4350.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1505 | 41:422(k). | Pub. L. 93–400, §26(k), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4062. |
Editorial Notes
Amendments
2022—Pub. L. 117–286 substituted "chapter 4 of title 5," for "the Inspector General Act of 1978 (5 U.S.C. App.),".
§1506. Authorization of appropriations
Necessary amounts may be appropriated to carry out this chapter.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3700.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1506 | 41:422(l). | Pub. L. 93–400, §26(l), as added Pub. L. 100–679, §5(a), Nov. 17, 1988, 102 Stat. 4063. |
CHAPTER 17—AGENCY RESPONSIBILITIES AND PROCEDURES
§1701. Cooperation with the Administrator
On the request of the Administrator, each executive agency shall—
(1) make its services, personnel, and facilities available to the Office of Federal Procurement Policy to the greatest practicable extent for the performance of functions under this division; and
(2) except when prohibited by law, furnish to the Administrator, and give the Administrator access to, all information and records in its possession that the Administrator may determine to be necessary for the performance of the functions of the Office.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3700.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1701 | 41:406. | Pub. L. 93–400, §7, Aug. 30, 1974, 88 Stat. 798. |
Executive Documents
Ex. Ord. No. 12073. Federal Procurement in Labor Surplus Areas
Ex. Ord. No. 12073, Aug. 16, 1978, 43 F.R. 36873, provided:
By the authority vested in me as President by the Constitution of the United States of America, and in order to strengthen the economic base of our Nation, it is hereby ordered as follows:
1–1. Procurements in Labor Surplus Areas
1–101. Executive agencies shall emphasize procurement set-asides in labor surplus areas in order to strengthen our Nation's economy.
1–102. Labor surplus area procurements shall be consistent with this Order and, to the extent funds are available, the priorities of Section 15 of the Small Business Act, as amended by Public Law 95–89 (15 U.S.C. 644).
1–2. Administrator of General Services
1–201. The Administrator shall coordinate with and advise State and local officials with regard to Federal efforts to encourage procurements in labor surplus areas with the aim of fostering economic development in labor surplus areas.
1–202. The Administrator shall establish specific labor surplus area procurement targets for Executive agencies in consultation with the heads of those agencies.
1–203. In cooperation with the heads of Executive agencies, the Administrator shall encourage the use of set-asides or other appropriate methods for meeting procurement targets in labor surplus areas.
1–204. The Administrator shall report every six months to the President on the progress of the agencies in achieving the procurement targets.
1–3. Agency Responsibilities
1–301. The Secretary of Labor shall classify and designate labor markets which are labor surplus areas. The Secretary shall provide labor market data to the heads of agencies and State and local officials in order to promote the development of business opportunities in labor surplus areas.
1–302. The heads of Executive agencies shall cooperate with the Administrator in carrying out his responsibilities for labor surplus area programs and shall provide the information necessary for setting procurement targets and recording achievement. They shall keep the Administrator informed of plans and programs which affect labor surplus procurements, with particular attention to opportunities for minority firms.
1–303. In accord with Section 6 of the Office of Federal Procurement Policy Act (41 U.S.C. 405), the Administrator for Federal Procurement Policy shall be responsible for the overall direction and oversight of the policies affecting procurement programs for labor surplus areas.
Jimmy Carter.
Ex. Ord. No. 12931. Federal Procurement Reform
Ex. Ord. No. 12931, Oct. 13, 1994, 59 F.R. 52387, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to ensure effective and efficient spending of public funds through fundamental reforms in Government procurement, it is hereby ordered as follows:
(a) Review agency procurement rules, reporting requirements, contractual requirements, certification procedures, and other administrative procedures over and above those required by statute, and, where practicable, replace them with guiding principles that encourage and reward innovation;
(b) Review existing and planned agency programs to assure that such programs meet agency mission needs;
(c) Ensure that procurement organizations focus on measurable results and on increased attention to understanding and meeting customer needs;
(d) Increase the use of commercially available items where practicable, place more emphasis on past contractor performance, and promote best value rather than simply low cost in selecting sources for supplies and services;
(e) Ensure that simplified acquisition procedures are used, to the maximum extent practicable, for procurements under the simplified acquisition threshold in order to reduce administrative burdens and more effectively support the accomplishment of agency missions;
(f) Expand the use of the Government purchase card by the agency and take maximum advantage of the micro-purchase authority provided in the Federal Acquisition Streamlining Act of 1994 [Pub. L. 103–355, see Short Title of 1994 Act note set out under section 101 of this title] by delegating the authority, to the maximum extent practicable, to the offices that will be using the supplies or services to be purchased;
(g) Establish clear lines of contracting authority and accountability;
(h) Establish career education programs for procurement professionals, including requirements for successful completion of educational requirements or mandatory training for entry level positions and for promotion to higher level positions, in order to ensure a highly qualified procurement work force;
(i) Designate a Procurement Executive with agency-wide responsibility to oversee development of procurement goals, guidelines, and innovation, measure and evaluate procurement office performance against stated goals, enhance career development of the procurement work force, and advise the agency heads whether goals are being achieved; and
(j) Review existing and planned information technology acquisitions and contracts to ensure that the agency receives the best value with regard to price and technology, and consider alternatives in cases where best value is not being obtained.
(a) Coordinating Government-wide efforts;
(b) Assisting executive agencies in streamlining guidance for procurement processes;
(c) Identifying desirable Government-wide procurement system criteria; and
(d) Identifying major inconsistencies in law and policies relating to procurement that impose unnecessary burdens on the private sector and Federal procurement officials, and, following coordination with executive agencies, submitting necessary legislative initiatives to the Office of Management and Budget for the resolution of such inconsistencies.
William J. Clinton.
§1702. Chief Acquisition Officers and senior procurement executives
(a)
(b)
(1)
(2)
(3)
(A) monitoring the performance of acquisition activities and acquisition programs of the executive agency, evaluating the performance of those programs on the basis of applicable performance measurements, and advising the head of the executive agency regarding the appropriate business strategy to achieve the mission of the executive agency;
(B) increasing the use of full and open competition in the acquisition of property and services by the executive agency by establishing policies, procedures, and practices that ensure that the executive agency receives a sufficient number of sealed bids or competitive proposals from responsible sources to fulfill the Federal Government's requirements (including performance and delivery schedules) at the lowest cost or best value considering the nature of the property or service procured;
(C) increasing appropriate use of performance-based contracting and performance specifications;
(D) making acquisition decisions consistent with all applicable laws and establishing clear lines of authority, accountability, and responsibility for acquisition decisionmaking within the executive agency;
(E) managing the direction of acquisition policy for the executive agency, including implementation of the unique acquisition policies, regulations, and standards of the executive agency;
(F) advising the executive agency on the applicability of relevant policy on the contracts of the agency for overseas contingency operations and ensuring the compliance of the contracts and contracting activities of the agency with such policy;
(G) developing and maintaining an acquisition career management program in the executive agency to ensure that there is an adequate professional workforce; and
(H) as part of the strategic planning and performance evaluation process required under section 306 of title 5 and sections 1105(a)(28), 1115, 1116, and 9703 (added by section 5(a) of Public Law 103–62 (107 Stat. 289)) of title 31—
(i) assessing the requirements established for agency personnel regarding knowledge and skill in acquisition resources management and the adequacy of those requirements for facilitating the achievement of the performance goals established for acquisition management;
(ii) developing strategies and specific plans for hiring, training, and professional development to rectify a deficiency in meeting those requirements; and
(iii) reporting to the head of the executive agency on the progress made in improving acquisition management capability.
(c)
(1)
(2)
(3)
(A) designate the Chief Acquisition Officer as the senior procurement executive for the executive agency; or
(B) ensure that the senior procurement executive designated under paragraph (1) reports directly to the Chief Acquisition Officer without intervening authority.
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3701; Pub. L. 112–239, div. A, title VIII, §849, Jan. 2, 2013, 126 Stat. 1853.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1702(a), (b)(1), (2) | 41:414(a). | Pub. L. 93–400, §16, as added Pub. L. 98–191, §7, Dec. 1, 1983, 97 Stat. 1330; Pub. L. 98–369, title VII, §2732(b)(2), July 18, 1984, 98 Stat. 1199; Pub. L. 108–136, div. A, title XIV, §1421(a)(1), Nov. 24, 2003, 117 Stat. 1666. |
| 1702(b)(3) | 41:414(b). | |
| 1702(c) | 41:414(c). |
Editorial Notes
Amendments
2013—Subsec. (b)(3)(F) to (H). Pub. L. 112–239, §849(a), added subpar. (F) and redesignated former subpars. (F) and (G) as (G) and (H), respectively.
Subsec. (d). Pub. L. 112–239, §849(b), added subsec. (d).
§1703. Acquisition workforce
(a)
(b)
(1)
(2)
(c)
(1)
(A)
(B)
(2)
(A)
(B)
(i) developing and modifying acquisition certification programs;
(ii) ensuring quality assurance for agency implementation of government-wide training and certification standards;
(iii) analyzing the acquisition training curriculum to ascertain if all certification competencies are covered or if adjustments are necessary;
(iv) developing career path information for certified professionals to encourage retention in government positions;
(v) coordinating with the Office of Personnel Management for human capital efforts; and
(vi) managing rotation assignments to support opportunities to apply skills included in certification.
(d)
(e)
(f)
(1)
(A)
(B)
(C)
(2)
(A) relate pay to performance (including the extent to which the performance of personnel in the workforce contributes to achieving the cost goals, schedule goals, and performance goals established for acquisition programs pursuant to section 3103(b) of this title); and
(B) provide for consideration, in personnel evaluations and promotion decisions, of the extent to which the performance of personnel in the workforce contributes to achieving the cost goals, schedule goals, and performance goals.
(g)
(1)
(A) establish qualification requirements, including education requirements, for—
(i) entry-level positions in the General Schedule Contracting series (GS–1102);
(ii) senior positions in the General Schedule Contracting series (GS–1102);
(iii) all positions in the General Schedule Purchasing series (GS–1105); and
(iv) positions in other General Schedule series in which significant acquisition-related functions are performed; and
(B) prescribe the manner and extent to which the qualification requirements shall apply to an individual serving in a position described in subparagraph (A) at the time the requirements are established.
(2)
(3)
(h)
(1)
(2)
(3)
(i)
(1)
(A) adapts to fundamental changes in the nature of Federal Government acquisition of property and services associated with the changing roles of the Federal Government; and
(B) acquires new skills and a new perspective to enable it to contribute effectively in the changing environment of the 21st century.
(2)
(3)
(A) Government-wide task and delivery-order contracts entered into under sections 4103 and 4105 of this title.
(B) Government-wide contracts for the acquisition of information technology as defined in section 11101 of title 40 and multiagency acquisition contracts for that technology authorized by section 11314 of title 40.
(C) multiple-award schedule contracts entered into by the Administrator of General Services.
(4)
(5)
(6)
(7)
(8)
(j)
(1)
(2)
(k)
(1)
(2)
(A) The unusually high or unique qualifications of an individual receiving an annuity from the Civil Service Retirement and Disability Fund on the basis of the individual's service.
(B) The exceptional difficulty in recruiting or retaining a qualified employee.
(C) A temporary emergency hiring need.
(3)
(4)
(5)
(l)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3702; Pub. L. 112–74, div. C, title V, §526, Dec. 23, 2011, 125 Stat. 914; Pub. L. 112–81, div. A, title VIII, §864(c), (d), Dec. 31, 2011, 125 Stat. 1525; Pub. L. 112–239, div. A, title X, §1076(a)(15), title XI, §1103, Jan. 2, 2013, 126 Stat. 1948, 1973.)
In subsection (e), the word "information" the second time it appears is substituted for "data" for consistency in the subsection.
In subsection (i)(6), the words "Office of Federal Procurement Policy" are substituted for "Office of Federal Acquisition Policy" to provide the correct name of the office.
In subsection (j), the text of 1413(c) of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108–136, 117 Stat. 1665) is omitted as obsolete.
In subsection (k)(4), the words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Reform" on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007).
Editorial Notes
References in Text
Section 5051(c) of the Federal Acquisition Streamlining Act of 1994, referred to in subsec. (c)(2)(A), is section 5051(c) of Pub. L. 103–305, which is set out as a note under this section.
Amendments
2013—Subsec. (i)(6). Pub. L. 112–239, §1076(a)(15), amended Pub. L. 112–81, §864(d)(2). See 2011 Amendment note below.
Subsec. (j)(2). Pub. L. 112–239, §1103, substituted "September 30, 2017" for "September 30, 2012".
2011—Subsec. (c)(2). Pub. L. 112–81, §864(c)(1), designated existing provisions as subpar. (A), inserted subpar. heading, and added subpar. (B).
Subsec. (i)(2). Pub. L. 112–81, §864(d)(1), substituted "to support the activities set forth in section 1201(a) of this title" for "to support the training of the acquisition workforce of the executive agencies".
Subsec. (i)(6). Pub. L. 112–81, §864(d)(2), as amended by Pub. L. 112–239, §1076(a)(15), substituted "ensure that amounts collected under this section are not used for a purpose other than the activities set forth in section 1201(a) of this title." for "ensure that amounts collected under this subsection are not used for a purpose other than the purpose specified in subparagraphs (A) and (C) to (J) of section 1122(a)(5) of this title."
Pub. L. 112–74 struck out "for training" after "amounts collected" and substituted "subparagraphs (A) and (C) to (J) of section 1122(a)(5) of this title" for "paragraph (2)".
Subsec. (l). Pub. L. 112–81, §864(c)(2), added subsec. (l).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Effective Date of 2013 Amendment
Pub. L. 112–239, div. A, title X, §1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(15) is effective Dec. 31, 2011, and as if included in Pub. L. 112–81 as enacted.
Artificial Intelligence Training for the Acquisition Workforce
Pub. L. 117–207, Oct. 17, 2022, 136 Stat. 2238, provided that:
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Artificial Intelligence Training for the Acquisition Workforce Act' or the 'AI Training Act'.
"SEC. 2. ARTIFICIAL INTELLIGENCE TRAINING PROGRAMS.
"(a)
"(1)
"(2)
"(3)
"(A) employees of an executive agency who are responsible for—
"(i) program management;
"(ii) the planning, research, development, engineering, testing, and evaluation of systems, including quality control and assurance;
"(iii) procurement and contracting;
"(iv) logistics; or
"(v) cost estimating; and
"(B) other personnel of an executive agency designated by the head of the executive agency to participate in the AI training program.
"(4)
"(5)
"(A) has the meaning given the term in section 133 of title 41, United States Code; and
"(B) does not include—
"(i) the Department of Defense or a component of the Department of Defense; or
"(ii) the National Nuclear Security Administration or a component of the National Nuclear Security Administration.
"(b)
"(1)
"(2)
"(3)
"(A) the science underlying AI, including how AI works;
"(B) introductory concepts relating to the technological features of artificial intelligence systems;
"(C) the ways in which AI can benefit the Federal Government;
"(D) the risks posed by AI, including discrimination and risks to privacy;
"(E) ways to mitigate the risks described in subparagraph (D), including efforts to create and identify AI that is reliable, safe, and trustworthy; and
"(F) future trends in AI, including trends for homeland and national security and innovation.
"(4)
"(A) incorporate new information relating to AI; and
"(B) ensure that the AI training program continues to satisfy the requirements under paragraph (3).
"(5)
"(A) technologists;
"(B) scholars; and
"(C) other experts from the private, public, and nonprofit sectors.
"(6)
"(A) understand and measure the participation of the covered workforce; and
"(B) receive and consider feedback from participants in the AI training program to improve the AI training program.
"(7)
Supply Chain Security Training
Pub. L. 117–145, June 16, 2022, 136 Stat. 1269, provided that:
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Supply Chain Security Training Act of 2021'.
"SEC. 2. TRAINING PROGRAM TO MANAGE SUPPLY CHAIN RISK.
"(a)
"(b)
"(1) include, considering the protection of classified and other sensitive information, information on current, specific supply chain security threats and vulnerabilities; and
"(2) be updated as determined to be necessary by the Administrator.
"(c)
"(1) coordinate with the Federal Acquisition Security Council, the Secretary of Homeland Security, and the Director of the Office of Personnel Management; and
"(2) consult with the Director of the Department of Defense's Defense Acquisition University, the Director of National Intelligence, and the Director of the National Institute of Standards and Technology.
"(d)
"(1)
"(A) allow executive agencies to incorporate the training program into existing agency training programs; and
"(B) provide guidance on how to identify executive agency officials with supply chain risk management responsibilities.
"(2)
"SEC. 3. REPORTS ON IMPLEMENTATION OF PROGRAM.
"Not later than 180 days after the completion of the first course, and annually thereafter for the next three years, the Administrator of General Services shall submit to the appropriate congressional committees and leadership a report on implementation of the training program required under section 2.
"SEC. 4. DEFINITIONS.
"In this Act:
"(1)
"(A) the Committee on Homeland Security and Governmental Affairs and the Committee on Armed Services of the Senate; and
"(B) the Committee on Oversight and Reform [now Committee on Oversight and Accountability] and the Committee on Armed Services of the House of Representatives.
"(2)
"(3)
"(4)
"(5)
Effective Communication Between Government and Industry
Pub. L. 114–92, div. A, title VIII, §887, Nov. 25, 2015, 129 Stat. 949, provided that: "Not later than 180 days after the date of the enactment of this Act [Nov. 25, 2015], the Federal Acquisition Regulatory Council shall prescribe a regulation making clear that agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms."
Training for Contracting and Enforcement Personnel
Pub. L. 111–240, title I, §1343(a), Sept. 27, 2010, 124 Stat. 2545, provided that: "Not later than 1 year after the date of enactment of this Act [Sept. 27, 2010], the Federal Acquisition Institute, in consultation with the Administrator for Federal Procurement Policy, the Defense Acquisition University, and the Administrator [of the Small Business Administration], shall develop courses for acquisition personnel concerning proper classification of business concerns and small business size and status for purposes of Federal contracts, subcontracts, grants, cooperative agreements, and cooperative research and development agreements."
Defense Acquisition University Funding
Pub. L. 109–163, div. A, title VIII, §821(c), Jan. 6, 2006, 119 Stat. 3386, provided that: "Amounts transferred under section 37(h)(3)(D) of the Office of Federal Procurement Policy Act [now 41 U.S.C. 1703(i)(5)] (as amended by subsection (a)) for use by the Defense Acquisition University shall be in addition to other amounts authorized for the University."
Enhanced System of Performance Incentives
Pub. L. 103–355, title V, §5051(c), Oct. 13, 1994, 108 Stat. 3351, provided that: "Within one year after the date of the enactment of this Act [Oct. 13, 1994], the Deputy Director for Management of the Office of Management and Budget, in consultation with appropriate officials in other departments and agencies of the Federal Government, shall, to the maximum extent consistent with applicable law—
"(1) establish policies and procedures for the heads of such departments and agencies to designate acquisition positions and manage employees (including the accession, education, training and career development of employees) in the designated acquisition positions; and
"(2) review the incentives and personnel actions available to the heads of departments and agencies of the Federal Government for encouraging excellence in the acquisition workforce of the Federal Government and provide an enhanced system of incentives for the encouragement of excellence in such workforce which—
"(A) relates pay to performance (including the extent to which the performance of personnel in such workforce contributes to achieving the cost goals, schedule goals, and performance goals established for acquisition programs pursuant to section 313(b) of the Federal Property and Administrative Services Act of 1949, as added by subsection (a) [now 41 U.S.C. 3103(b)]); and
"(B) provides for consideration, in personnel evaluations and promotion decisions, of the extent to which the performance of personnel in such workforce contributes to achieving such cost goals, schedule goals, and performance goals."
1 So in original. Probably should be "Procurement".
§1704. Planning and policy-making for acquisition workforce
(a)
(1)
(2)
(b)
(1) supervising the acquisition workforce training fund established under section 1703(i) of this title;
(2) developing, in coordination with Chief Acquisition Officers and Chief Human Capital Officers, a strategic human capital plan for the acquisition workforce of the Federal Government;
(3) reviewing and providing input to individual agency acquisition workforce succession plans;
(4) recommending to the Administrator and other senior government officials appropriate programs, policies, and practices to increase the quantity and quality of the Federal acquisition workforce;
(5) implementing workforce programs under subsections (f) through (l) of section 1703 of this title; and
(6) carrying out other functions that the Administrator may assign.
(c)
(1)
(2)
(A) have curricula covering a broad range of acquisition and contracting disciplines corresponding to the specific acquisition and contracting needs of the agency involved;
(B) be developed and applied according to rigorous standards; and
(C) be designed to maximize efficiency, through the use of self-paced courses, online courses, on-the-job training, and the use of remote instructors, wherever those features can be applied without reducing the effectiveness of the training or negatively affecting academic standards.
(d)
(e)
(f)
(1)
(2)
(A) recruitment goals for personnel from procurement intern programs;
(B) the agency's acquisition workforce training needs;
(C) actions to retain high performing acquisition professionals who possess critical relevant skills;
(D) recruitment goals for personnel from the Federal Career Intern Program; and
(E) recruitment goals for personnel from the Presidential Management Fellows Program.
(g)
(1)
(A) develop a specific and actionable 5-year plan to increase the size of the acquisition workforce; and
(B) operate a government-wide acquisition intern program for the Federal agencies.
(2)
(3)
(A) The variety and complexity of acquisitions conducted by each Federal agency covered by the plan, and the workforce needed to effectively carry out the acquisitions.
(B) The development of a sustainable funding model to support efforts to hire, retain, and train an acquisition workforce of appropriate size and skill to effectively carry out the acquisition programs of the Federal agencies covered by the plan, including an examination of interagency funding methods and a discussion of how the model of the Defense Acquisition Workforce Development Fund could be applied to civilian agencies.
(C) Any strategic human capital planning necessary to hire, retain, and train an acquisition workforce of appropriate size and skill at each Federal agency covered by the plan.
(D) Methodologies that Federal agencies covered by the plan can use to project future acquisition workforce personnel hiring requirements, including an appropriate distribution of such personnel across each category of positions designated as acquisition workforce personnel under section 1703(g) of this title.
(E) Government-wide training standards and certification requirements necessary to enhance the mobility and career opportunities of the Federal acquisition workforce within the Federal agencies covered by the plan.
(F) If the Associate Administrator recommends as part of the plan a growth in the acquisition workforce of the Federal agencies covered by the plan below 25 percent over the next 5 years, an examination of each of the matters specified in subparagraphs (A) to (E) in the context of a 5-year plan that increases the size of such acquisition workforce by not less than 25 percent, or an explanation why such a level of growth would not be in the best interest of the Federal Government.
(4)
(5)
(h)
(i)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3706; Pub. L. 111–383, div. A, title X, §1075(e)(15), Jan. 7, 2011, 124 Stat. 4375; Pub. L. 112–81, div. A, title VIII, §864(a), Dec. 31, 2011, 125 Stat. 1522; Pub. L. 112–239, div. A, title X, §1076(a)(14), Jan. 2, 2013, 126 Stat. 1948.)
Amendments Not Shown in Text
Subsec. (g) of this section was derived from Pub. L. 110–417, [div. A], title VIII, §869, Oct. 14, 2008, 122 Stat. 4553, which was set out as a note under section 433a of former Title 41, Public Contracts, prior to being repealed and reenacted as subsec. (g) of this section by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. Section 869 of Pub. L. 110–417 was amended by Pub. L. 111–383, div. A, title X, §1075(e)(15), Jan. 7, 2011, 124 Stat. 4375. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 869 of Pub. L. 110–417 was amended as follows:
(1) in subsection (b), by striking "433(a)" and inserting "433a(a)"; and
(2) in subsection (c)(4)—
(A) by striking "37(j)" and inserting "37(g)"; and
(B) by striking "433(j)" and inserting "433(g)".
Such references did not appear in the text of subsec. (g) as enacted. See Historical and Revision Notes below.
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1704(a)(1) | no source. | |
| 1704(a)(2) | 41:433a(h). | Pub. L. 110–181, div. A, title VIII, §855, Jan. 28, 2008, 122 Stat. 251. |
| 1704(b)–(f) | 41:433a(a)–(e). | |
| 1704(g) | 41:433a note. | Pub. L. 110–417, [div. A], title VIII, §869, Oct. 14, 2008, 122 Stat. 4553. |
| 1704(h), (i) | 41:433a(f), (g). |
In subsection (a), the definition of "executive agency" is omitted as unnecessary.
In subsection (f)(1), the words "Not later than 1 year after the date of the enactment of this Act" are omitted as obsolete.
In subsection (g)(2), the words "Associate Administrator" are substituted for "Associate Administrator for Acquisition Workforce Programs designated under section 855(a) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 122 Stat. 251; 41 U.S.C. 433(a))" because of subsection (a)(1).
In subsection (g)(3)(D), the reference to "section 37(j) of the Office of Federal Procurement Policy Act" is changed to "section 1703(g) of this title" to correct an error in the law.
Editorial Notes
Amendments
2013—Subsec. (b). Pub. L. 112–239, §1076(a)(14), made technical amendment to directory language of Pub. L. 112–81, §864(a)(2). See 2011 Amendment note below.
2011—Subsec. (b). Pub. L. 112–81, §864(a)(2), as amended by Pub. L. 112–239, §1076(a)(14), substituted "The Associate Administrator shall be located in the Office of Federal Procurement Policy." for "The Associate Administrator shall be located in the Federal Acquisition Institute (or its successor)." in introductory provisions.
Pub. L. 112–81, §864(a)(1), inserted "The Associate Administrator shall be chosen on the basis of demonstrated knowledge and expertise in acquisition, human capital, and management." after "Programs." in introductory provisions.
Subsec. (b)(5), (6). Pub. L. 112–81, §864(a)(3)–(5), added par. (5) and redesignated former par. (5) as (6).
Statutory Notes and Related Subsidiaries
Effective Date of 2013 Amendment
Pub. L. 112–239, div. A, title X, §1076(a), Jan. 2, 2013, 126 Stat. 1947, provided that the amendment made by section 1076(a)(14) is effective Dec. 31, 2011, and as if included in Pub. L. 112–81 as enacted.
Expansion of Training and Use of Information Technology Cadres
Pub. L. 113–291, div. A, title VIII, §835, Dec. 19, 2014, 128 Stat. 3449, provided that:
"(a)
"(b)
"(1)
"(2)
"(A) Development of an information technology acquisition cadre within the agency or use of memoranda of understanding with other agencies that have such cadres or personnel with experience relevant to the agency's information technology acquisition needs.
"(B) Development of personnel assigned to information technology acquisitions, including cross-functional training of acquisition information technology and program personnel.
"(C) Use of the specialized career path for information technology program managers as designated by the Office of Personnel Management and plans for strengthening information technology program management.
"(D) Use of direct hire authority.
"(E) Conduct of peer reviews.
"(F) Piloting of innovative approaches to information technology acquisition workforce development, such as industry-government rotations.
"(c)
§1705. Advocates for competition
(a)
(1)
(2)
(A) designate for the executive agency and for each procuring activity of the executive agency one officer or employee serving in a position authorized for the executive agency on July 18, 1984 (other than the senior procurement executive designated pursuant to section 1702(c) of this title) to serve as the advocate for competition;
(B) not assign those officers or employees duties or responsibilities that are inconsistent with the duties and responsibilities of the advocates for competition; and
(C) provide those officers or employees with the staff or assistance necessary to carry out the duties and responsibilities of the advocate for competition, such as individuals who are specialists in engineering, technical operations, contract administration, financial management, supply management, and utilization of small and disadvantaged business concerns.
(b)
(1) be responsible for challenging barriers to, and promoting full and open competition in, the procurement of property and services by the executive agency;
(2) review the procurement activities of the executive agency;
(3) identify and report to the senior procurement executive of the executive agency—
(A) opportunities and actions taken to achieve full and open competition in the procurement activities of the executive agency; and
(B) any condition or action which has the effect of unnecessarily restricting competition in the procurement actions of the executive agency;
(4) prepare and transmit to the senior procurement executive an annual report describing—
(A) the advocate's activities under this section;
(B) new initiatives required to increase competition; and
(C) remaining barriers to full and open competition;
(5) recommend to the senior procurement executive—
(A) goals and the plans for increasing competition on a fiscal year basis; and
(B) a system of personal and organizational accountability for competition, which may include the use of recognition and awards to motivate program managers, contracting officers, and others in authority to promote competition in procurement programs; and
(6) describe other ways in which the executive agency has emphasized competition in programs for procurement training and research.
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3709; Pub. L. 115–232, div. A, title VIII, §836(b)(2), Aug. 13, 2018, 132 Stat. 1861.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1705 | 41:418. | Pub. L. 93–400, §20, as added Pub. L. 98–369, title VII, §2732(a), July 18, 1984, 98 Stat. 1197; Pub. L. 103–355, title VIII, §8303(a), Oct. 13, 1994, 108 Stat. 3398. |
Editorial Notes
Amendments
2018—Subsec. (c). Pub. L. 115–232 substituted "commercial products and commercial services" for "commercial items".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§1706. Personnel evaluation
The head of each executive agency subject to division C shall ensure, with respect to the employees of that agency whose primary duties and responsibilities pertain to the award of contracts subject to the provisions of the Small Business and Federal Procurement Competition Enhancement Act of 1984 (Public Law 98–577, 98 Stat. 3066), that the performance appraisal system applicable to those employees affords appropriate recognition to, among other factors, efforts to—
(1) increase competition and achieve cost savings through the elimination of procedures that unnecessarily inhibit full and open competition;
(2) further the purposes of the Small Business and Federal Procurement Competition Enhancement Act of 1984 (Public Law 98–577, 98 Stat. 3066) and the Defense Procurement Reform Act of 1984 (Public Law 98–525, title XII, 98 Stat. 2588); and
(3) further other objectives and purposes of the Federal acquisition system authorized by law.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3710.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1706 | 41:414a. | Pub. L. 98–577, title V, §502, Oct. 30, 1984, 98 Stat. 3085. |
Editorial Notes
References in Text
The Small Business and Federal Procurement Competition Enhancement Act of 1984, referred to in text, is Pub. L. 98–577, Oct. 30, 1984, 98 Stat. 3066. For complete classification of this Act to the Code, see Short Title of 1984 Act note set out under section 101 of this title and Tables.
The Defense Procurement Reform Act of 1984, referred to in par. (2), is Pub. L. 98–525, title XII, Oct. 19, 1984, 98 Stat. 2588. For complete classification of this Act to the Code, see Short Title of 1984 Amendment note set out under section 2302 of Title 10, Armed Forces, and Tables.
§1707. Publication of proposed regulations
(a)
(1)
(A) relates to the expenditure of appropriated funds; and
(B)(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or
(ii) has a significant cost or administrative impact on contractors or offerors.
(2)
(b)
(c)
(1) the text of the proposal or, if it is impracticable to publish the full text of the proposal, a summary of the proposal and a statement specifying the name, address, and telephone number of the officer or employee of the executive agency from whom the full text may be obtained; and
(2) a request for interested parties to submit comments on the proposal and the name and address of the officer or employee of the Federal Government designated to receive the comments.
(d)
(e)
(1)
(A) a notice of the policy, regulation, procedure, or form is published in the Federal Register and includes a statement that the policy, regulation, procedure, or form is temporary; and
(B) provision is made for a public comment period of 30 days beginning on the date on which the notice is published.
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3710.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1707 | 41:418b. | Pub. L. 93–400, §22, as added Pub. L. 98–577, title III, §302(a), Oct. 30, 1984, 98 Stat. 3076; Pub. L. 103–355, title V, §5092, Oct. 13, 1994, 108 Stat. 3362, as amended Pub. L. 104–106, title XLIII, §4321(a)(9), Feb. 10, 1996, 110 Stat. 671. |
In subsection (a)(2), the words "Notwithstanding the preceding sentence" are omitted as unnecessary.
§1708. Procurement notice
(a)
(1) an executive agency intending to solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000, but not to exceed $25,000, shall post, for not less than 10 days, in a public place at the contracting office issuing the solicitation a notice of solicitation described in subsection (c);
(2) an executive agency shall publish a notice of solicitation described in subsection (c) if the agency intends to—
(A) solicit bids or proposals for a contract for property or services for a price expected to exceed $25,000; or
(B) place an order, expected to exceed $25,000, under a basic agreement, basic ordering agreement, or similar arrangement; and
(3) an executive agency awarding a contract for property or services for a price exceeding $25,000, or placing an order exceeding $25,000 under a basic agreement, basic ordering agreement, or similar arrangement, shall furnish for publication a notice announcing the award or order if there is likely to be a subcontract under the contract or order.
(b)
(1)
(A) the proposed procurement is for an amount not greater than the simplified acquisition threshold and is to be conducted by—
(i) using widespread electronic public notice of the solicitation in a form that allows convenient and universal user access through a single, Government-wide point of entry; and
(ii) permitting the public to respond to the solicitation electronically;
(B) the notice would disclose the executive agency's needs and disclosure would compromise national security;
(C) the proposed procurement would result from acceptance of—
(i) an unsolicited proposal that demonstrates a unique and innovative research concept and publication of a notice of the unsolicited research proposal would disclose the originality of thought or innovativeness of the proposal or would disclose proprietary information associated with the proposal; or
(ii) a proposal submitted under section 9 of the Small Business Act (15 U.S.C. 638);
(D) the procurement is made against an order placed under a requirements contract, a task order contract, or a delivery order contract;
(E) the procurement is made for perishable subsistence supplies;
(F) the procurement is for utility services, other than telecommunication services, and only one source is available; or
(G) the procurement is for the services of an expert for use in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government in a trial, hearing, or proceeding before a court, administrative tribunal, or agency, or in any part of an alternative dispute resolution process, whether or not the expert is expected to testify.
(2)
(A) under conditions described in paragraph (2), (3), (4), (5), or (7) of section 3304(a) of this title or paragraph (2), (3), (4), (5), or (7) of section 3204(a) of title 10; or
(B) for which the head of the executive agency makes a determination in writing, after consultation with the Administrator and the Administrator of the Small Business Administration, that it is not appropriate or reasonable to publish a notice before issuing a solicitation.
(3)
(c)
(1) an accurate description of the property or services to be contracted for, which description—
(A) shall not be unnecessarily restrictive of competition; and
(B) shall include, as appropriate, the agency nomenclature, National Stock Number or other part number, and a brief description of the item's form, fit, or function, physical dimensions, predominant material of manufacture, or similar information that will assist a prospective contractor to make an informed business judgment as to whether a copy of the solicitation should be requested;
(2) provisions that—
(A)(i) state whether the technical data required to respond to the solicitation will not be furnished as part of the solicitation; and
(ii) identify the source in the Federal Government, if any, from which the technical data may be obtained; and
(B)(i) state whether an offeror or its product or service must meet a qualification requirement in order to be eligible for award; and
(ii) if so, identify the office from which the qualification requirement may be obtained;
(3) the name, business address, and telephone number of the contracting officer;
(4) a statement that all responsible sources may submit a bid, proposal, or quotation (as appropriate) that the agency shall consider;
(5) in the case of a procurement using procedures other than competitive procedures, a statement of the reason justifying the use of those procedures and the identity of the intended source; and
(6) in the case of a contract in an amount estimated to be greater than $25,000 but not greater than the simplified acquisition threshold, or a contract for the procurement of commercial products or commercial services using special simplified procedures—
(A) a description of the procedures to be used in awarding the contract; and
(B) a statement specifying the periods for prospective offerors and the contracting officer to take the necessary preaward and award actions.
(d)
(e)
(1)
(A) issue the solicitation earlier than 15 days after the date on which the notice is published; or
(B) in the case of a contract or order expected to be greater than the simplified acquisition threshold, establish a deadline for the submission of all bids or proposals in response to the notice required by subsection (a)(2) that—
(i) in the case of a solicitation for research and development, is earlier than 45 days after the date the notice required for a bid or proposal for a contract described in subsection (a)(2)(A) is published;
(ii) in the case of an order under a basic agreement, basic ordering agreement, or similar arrangement, is earlier than 30 days after the date the notice required for an order described in subsection (a)(2)(B) is published; or
(iii) in any other case, is earlier than 30 days after the date the solicitation is issued.
(2)
(3)
(f)
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3711; Pub. L. 115–232, div. A, title VIII, §836(b)(3), Aug. 13, 2018, 132 Stat. 1861; Pub. L. 117–81, div. A, title XVII, §1702(h)(4), Dec. 27, 2021, 135 Stat. 2158.)
In subsection (a)(3), the words "under a basic agreement, basic ordering agreement, or similar arrangement" are substituted for "referred to in clause (A)(ii)" for clarity. The words "by the Secretary of Commerce" are omitted as obsolete. The Secretary of Commerce no longer has responsibility for publishing notices of awards or orders. See revision note for subsection (d).
In subsection (b)(2), the text of 41 U.S.C. 416(C)(1)(H) is omitted because the procurement authority of the Secretary of Homeland Security pursuant to the special procedures provided in section 833(c) of the Homeland Security Act of 2002 (6 U.S.C. 339(c)) expired on September 30, 2007.
Subsection (b)(3) is added because of section 850(e)(3) of the National Defense Authorization Act for Fiscal Year 1998 (Public Law 105–85, 111 Stat. 1849, 15:637 note), which in part provided that the amendments made by section 850(e)(2), which amended 41:416(c)(1), be implemented in a manner consistent with applicable international agreements.
Subsection (d) is substituted for 41:416(a)(2) and (7) to eliminate unnecessary words. Federal Business Opportunities is the designated single point of universal electronic public access for publication of all procurement information and notices previously published by the Secretary of Commerce in the Commerce Business Daily. See 66 Fed. Reg. 27407, May 16, 2001, 68 Fed. Reg. 56678, October 1, 2003, 48 CFR ch. 1, subch. B, part 5, and the special notice posted in CBDNet on December 28, 2001, and printed on January 2, 2002.
In subsection (e)(1)(B)(i), the words "required for a bid or proposal for a contract described in" are substituted for "required by" for clarity.
In subsection (e)(1)(B)(ii), the words "required for an order described in" are substituted for "required by" for clarity.
Editorial Notes
Amendments
2021—Subsec. (b)(2)(A). Pub. L. 117–81 substituted "section 3204(a)" for "section 2304(c)".
2018—Subsecs. (c)(6), (e)(3). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
Applicability to Tennessee Valley Authority
Pub. L. 98–577, title III, §303(c), Oct. 30, 1984, 98 Stat. 3079, provided that: "The provisions of the amendments made by subsection (a) of this section [see Tables for classification] shall apply to the Tennessee Valley Authority only with respect to procurements to be paid from appropriated funds."
§1709. Contracting functions performed by Federal personnel
(a)
(1) an employee, as defined in section 2105 of title 5;
(2) a member of the armed forces; and
(3) an individual assigned to a Federal agency pursuant to subchapter VI of chapter 33 of title 5.
(b)
(1) a sufficient number of personnel described in subsection (a) in the agency or another Federal agency are readily available to perform a particular evaluation or analysis for the head of the executive agency making the determination; and
(2) the readily available personnel have the training and capabilities necessary to perform the evaluation or analysis.
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3714.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1709(a) | 41:419(b). | Pub. L. 93–400, §23, as added Pub. L. 103–355, title VI, §6002(a), Oct. 13, 1994, 108 Stat. 3363. |
| 1709(b) | 41:419(a). | |
| 1709(c) | 41:419(c). |
In subsection (a), before paragraph (1), the words "Personnel referred to in subsection (b) are" are substituted for "For purposes of subsection (a) of this section, the personnel described in this subsection are as follows" to eliminate unnecessary words. In paragraph (3), the words "employee from State or local governments" are substituted for "person" for clarity.
Senate Revision Amendment
In subsec. (a)(3), "individual" substituted for "employee from State or local governments" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010).
Statutory Notes and Related Subsidiaries
Requirement for Guidance and Regulations
Pub. L. 103–355, title VI, §6002(b), Oct. 13, 1994, 108 Stat. 3363, provided that: "The Federal Acquisition Regulatory Council established by section 25(a) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 421(a)) [now 41 U.S.C. 1302(a)] shall—
"(1) review part 37 of title 48 of the Code of Federal Regulations as it relates to the use of advisory and assistance services; and
"(2) provide guidance and promulgate regulations regarding—
"(A) what actions Federal agencies are required to take to determine whether expertise is readily available within the Federal Government before contracting for advisory and technical services to conduct acquisitions; and
"(B) the manner in which personnel with expertise may be shared with agencies needing expertise for such acquisitions."
§1710. Public-private competition required before conversion to contractor performance
(a)
(1)
(A) formally compares the cost of performance of the function by agency civilian employees with the cost of performance by a contractor;
(B) creates an agency tender, including a most efficient organization plan, in accordance with Office of Management and Budget Circular A76, as implemented on May 29, 2003, or any successor circular;
(C) includes the issuance of a solicitation;
(D) determines whether the submitted offers meet the needs of the executive agency with respect to factors other than cost, including quality, reliability, and timeliness;
(E) examines the cost of performance of the function by agency civilian employees and the cost of performance of the function by one or more contractors to demonstrate whether converting to performance by a contractor will result in savings to the Federal Government over the life of the contract, including—
(i) the estimated cost to the Federal Government (based on offers received) for performance of the function by a contractor;
(ii) the estimated cost to the Federal Government for performance of the function by agency civilian employees; and
(iii) an estimate of all other costs and expenditures that the Federal Government would incur because of the award of the contract;
(F) requires continued performance of the function by agency civilian employees unless the difference in the cost of performance of the function by a contractor compared to the cost of performance of the function by agency civilian employees would, over all performance periods required by the solicitation, be equal to or exceed the lesser of—
(i) 10 percent of the personnel-related costs for performance of that function in the agency tender; or
(ii) $10,000,000; and
(G) examines the effect of performance of the function by a contractor on the agency mission associated with the performance of the function.
(2)
(3)
(A) modified, reorganized, divided, or in any way changed for the purpose of exempting the conversion of the function from the requirements of this section; or
(B) converted to performance by a contractor to circumvent a civilian personnel ceiling.
(b)
(1)
(A) shall, at least monthly during the development and preparation of the performance work statement and the management efficiency study used in making that determination, consult with civilian employees who will be affected by that determination and consider the views of the employees on the development and preparation of that statement and that study; and
(B) may consult with the employees on other matters relating to that determination.
(2)
(A)
(B)
(3)
(c)
(1)
(A) The function for which the public-private competition is to be conducted.
(B) The location at which the function is performed by agency civilian employees.
(C) The number of agency civilian employee positions potentially affected.
(D) The anticipated length and cost of the public-private competition, and a specific identification of the budgetary line item from which funds will be used to cover the cost of the public-private competition.
(E) A certification that a proposed performance of the function by a contractor is not a result of a decision by an official of an executive agency to impose predetermined constraints or limitations on agency civilian employees in terms of man years, end strengths, full-time equivalent positions, or maximum number of employees.
(2)
(A) agency civilian employees who would be affected by such a conversion in performance; and
(B) the local community and the Federal Government, if more than 50 agency civilian employees perform the function.
(3)
(A)
(i) the report required by paragraph (1) has not been submitted; or
(ii) the certification required by paragraph (1)(E) was not included in the report required by paragraph (1).
(B)
(i) In the case of a failure to submit the report when required, the date on which the representative individual or an official of the representative entity authorized to pose the objection first knew or should have known of that failure.
(ii) In the case of a failure to include the certification in a submitted report, the date on which the report was submitted to Congress.
(C)
(d)
(1) included on the procurement list established pursuant to section 8503 of this title; or
(2) planned to be changed to performance by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely disabled people in accordance with chapter 85 of this title.
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3715.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1710 | 41:439. | Pub. L. 93–400, §43, as added Pub. L. 110–181, title III, §327(a), Jan. 28, 2008, 122 Stat. 63. |
In the heading for subsection (d) and in subsection (d)(2), the words "disabled people" are substituted for "handicapped persons" for consistency with chapter 85 of the revised title.
§1711. Value engineering
Each executive agency shall establish and maintain cost-effective procedures and processes for analyzing the functions of a program, project, system, product, item of equipment, building, facility, service, or supply of the agency. The analysis shall be—
(1) performed by qualified agency or contractor personnel; and
(2) directed at improving performance, reliability, quality, safety, and life cycle costs.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3718.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1711 | 41:432. | Pub. L. 93–400, §36, as added Pub. L. 104–106, title XLIII, §4306(a), Feb. 10, 1996, 110 Stat. 665. |
§1712. Record requirements
(a)
(b)
(1) competitive procedures—
(A) the date of contract award;
(B) information identifying the source to whom the contract was awarded;
(C) the property or services the Federal Government obtains under the procurement; and
(D) the total cost of the procurement; or
(2) procedures other than competitive procedures—
(A) the information described in paragraph (1);
(B) the reason under section 3304(a) of this title or section 3204(a) of title 10 for using the procedures; and
(C) the identity of the organization or activity that conducted the procurement.
(c)
(d)
(1) ensure the accuracy of the information included in the record established and maintained by the agency under subsection (a); and
(2) transmit in a timely manner such information to the General Services Administration for entry into the Federal Procurement Data System referred to in section 1122(a)(4) of this title, or any successor system.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3718; Pub. L. 117–81, div. A, title XVII, §1702(h)(5), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1712 | 41:417. | Pub. L. 93–400, §19, as added Pub. L. 98–369, title VII, §2732(a), July 18, 1984, 98 Stat. 1197; Pub. L. 103–355, title IV, §4403, Oct. 13, 1994, 108 Stat. 3349; Pub. L. 110–417, title VIII, §874(b), Oct. 14, 2008, 122 Stat. 4558. |
Editorial Notes
Amendments
2021—Subsec. (b)(2)(B). Pub. L. 117–81 substituted "section 3204(a)" for "section 2304(c)".
§1713. Procurement data
(a)
(1)
(2)
(3)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3719; Pub. L. 115–91, div. A, title XVII, §1701(a)(4)(F)(ii), Dec. 12, 2017, 131 Stat. 1796.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1713(a) | 41:417a(b). | Pub. L. 100–533, title V, §502, Oct. 25, 1988, 102 Stat. 2697; Pub. L. 105–135, title VI, §604(f)(2), Dec. 2, 1997, 111 Stat. 2634. |
| 1713(b) | 41:417a(a). |
In subsection (b), the words "socially and economically disadvantaged individuals" are substituted for "socially and economically disadvantaged businesses" for consistency with the term set out in subsection (a).
Editorial Notes
References in Text
Section 31(b) of the Small Business Act, referred to in subsec. (a)(1), is classified to section 657a(b) of Title 15, Commerce and Trade.
Section 204 of the Women's Business Ownership Act of 1988, referred to in subsec. (a)(3), is section 204 of Pub. L. 100–533, which is set out as a note under section 637 of Title 15, Commerce and Trade.
Amendments
2017—Subsec. (a). Pub. L. 115–91 substituted "section 31(b) of the Small Business Act" for "section 3(p) of the Small Business Act (15 U.S.C. 632(p))".
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by Pub. L. 115–91 effective Jan. 1, 2020, see section 1701(j) of Pub. L. 115–91, set out as a note under section 657a of Title 15, Commerce and Trade.
CHAPTER 19—SIMPLIFIED ACQUISITION PROCEDURES
Editorial Notes
Amendments
2018—Pub. L. 115–232, div. A, title VIII, §836(b)(6)(B)(ii), Aug. 13, 2018, 132 Stat. 1861, substituted "List of laws inapplicable to procurements of commercial products and commercial services" for "List of laws inapplicable to procurements of commercial items" in item 1906.
2012—Pub. L. 112–194, §2(a)(2), Oct. 5, 2012, 126 Stat. 1447, added item 1909.
§1901. Simplified acquisition procedures
(a)
(1) not greater than the simplified acquisition threshold; and
(2) greater than the simplified acquisition threshold but not greater than $5,000,000 for which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial products or commercial services.
(b)
(c)
(d)
(e)
(1) shall publish a notice in accordance with section 1708 of this title and, as provided in section 1708(c)(4) of this title, permit all responsible sources to submit a bid, proposal, or quotation (as appropriate) that the agency shall consider;
(2) may not conduct the purchase on a sole source basis unless the need to do so is justified in writing and approved in accordance with section 3204(e) of title 10 or section 3304(e) of this title, as applicable; and
(3) shall include in the contract file a written description of the procedures used in awarding the contract and the number of offers received.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3719; Pub. L. 115–232, div. A, title VIII, §836(b)(4), Aug. 13, 2018, 132 Stat. 1861; Pub. L. 117–81, div. A, title XVII, §1702(h)(6), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1901 | 41:427. | Pub. L. 93–400, §31, as added Pub. L. 103–355, title IV, §4201(a), Oct. 13, 1994, 108 Stat. 3342; Pub. L. 104–106, title XLII, §4202(c), title XLIII, §4302(b), Feb. 10, 1996, 110 Stat. 653, 658, as amended Pub. L. 104–201, title X, §1074(b)(6) (less effective date), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 105–85, title VIII, §850(d), Nov. 18, 1997, 111 Stat. 1848. |
Section 31(e) of the Office of Federal Procurement Policy Act (41 U.S.C. 427(e)) is omitted as obsolete.
In subsection (e)(2), the reference to section 253 of this title is limited to section 3303(e) of the revised title for clarity.
Editorial Notes
Amendments
2021—Subsec. (e)(2). Pub. L. 117–81 substituted "section 3204(e)" for "section 2304(f)".
2018—Subsec. (a)(2). Pub. L. 115–232, §836(b)(4)(A), substituted "commercial products or commercial services" for "commercial items".
Subsec. (e). Pub. L. 115–232, §836(b)(4)(B), substituted "Commercial Products and Commercial Services" for "Commercial Items" in heading and, in introductory provisions, substituted "commercial products or commercial services" for "commercial items".
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
Staturory Notes and Related Subsidiaries
Procurement Through Commercial E-Commerce Portals
Pub. L. 115–91, div. A, title VIII, §846, Dec. 12, 2017, 131 Stat. 1483, as amended by Pub. L. 115–232, div. A, title VIII, §838(a), Aug. 13, 2018, 132 Stat. 1875; Pub. L. 117–81, div. A, title VIII, §853, title XVII, §1702(i)(2), Dec. 27, 2021, 135 Stat. 1848, 2159, provided that:
"(a)
"(b)
"(c)
"(1)
"(2)
"(A) Market analysis and initial communications with potential commercial e-commerce portal providers on technical considerations of how the portals function (including the use of standard terms and conditions of the portals by the Government), the degree of customization that can occur without creating a Government-unique portal, the measures necessary to address the considerations for supplier and product screening specified in subsection (e), security of data, considerations pertaining to nontraditional Government contractors, and potential fees, if any, to be charged by the Administrator, the portal provider, or the suppliers for participation in the program established pursuant to subsection (a).
"(B) Consultation with affected departments and agencies about their unique procurement needs, such as supply chain risks for health care products, information technology, software, or any other category determined necessary by the Administrator.
"(C) An assessment of the products or product categories that are suitable for purchase on the commercial e-commerce portals.
"(D) An assessment of the precautions necessary to safeguard any information pertaining to the Federal Government, especially precautions necessary to protect against national security or cybersecurity threats.
"(E) A review of standard terms and conditions of commercial e-commerce portals in the context of Government requirements.
"(F) An assessment of the impact on existing programs, including schedules, set-asides for small business concerns, and other preference programs.
"(3)
"(4)
"(5)
"(A) begin testing commercial e-commerce portal models (other than any such model selected for the initial proof of concept) identified pursuant to paragraph (2); and
"(B) submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Oversight and Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a report that includes—
"(i) a summary of the assessments conducted under paragraph (2) with respect to a commercial e-commerce portal model identified pursuant to such paragraph;
"(ii) a list of the types of commercial products that could be procured using models tested pursuant to subparagraph (A);
"(iii) an estimate of the amount that could be spent by the head of a department or agency under the program, disaggregated by type of commercial e-commerce portal model; and
"(iv) an update on the models tested pursuant to subparagraph (A) and a timeline for completion of such testing.
"(6)
"(A) an assessment and comparison of commercial e-commerce portal models with respect to—
"(i) price and quality of the commercial products supplied by each commercial e-commerce portal model;
"(ii) supplier reliability and service;
"(iii) safeguards for the security of Government information and third-party supplier proprietary information;
"(iv) protections against counterfeit commercial products;
"(v) supply chain risks, particularly with respect to complex commercial products; and
"(vi) overall adherence to Federal procurement rules and policies; and
"(B) an analysis of the costs and benefits of the convenience to the Federal Government of procuring commercial products from each such commercial e-commerce portal model.
"(d)
"(e)
"(1)
"(2)
"(f)
"(1) All laws, including laws that set forth policies, procedures, requirements, or restrictions for the procurement of property or services by the Federal Government, apply to the program established pursuant to subsection (a) unless otherwise provided in this section.
"(2) A procurement of a product made through a commercial e-commerce portal under the program established pursuant to subsection (a) is deemed to be an award of a prime contract for purposes of the goals established under section 15(g) of the Small Business Act (15 U.S.C. 644(g)), if the purchase is from a supplier that is a small business concern.
"(3) Nothing in this section shall be construed as limiting the authority of a department or agency to restrict competition to small business concerns.
"(4) Nothing in this section shall be construed as limiting the applicability of section 1341 of title 31, United States Code (popularly referred to as the Anti-Deficiency Act).
"(5) A procurement of a product made through a commercial e-commerce portal under the program established pursuant to subsection (a) is deemed to satisfy requirements for full and open competition pursuant to sections 3201 through 3205 of title 10, United States Code, and section 3301 of title 41, United States Code, if—
"(A) there are offers from two or more suppliers of such a product or similar product with substantially the same physical, functional, or performance characteristics on the online marketplace; and
"(B) the Administrator establishes procedures to implement subparagraph (A) and notifies Congress at least 30 days before implementing such procedures.
"(g)
"(h)
"(1) agree not to sell or otherwise make available to any third party any information pertaining to a product ordered by the Federal Government through the commercial e-commerce portal in a manner that identifies the Federal Government, or any of its departments or agencies, as the purchaser, except if the information is needed to process or deliver an order or the Administrator provides written consent;
"(2) agree to take the necessary precautions to safeguard any information pertaining to the Federal Government, especially precautions necessary to protect against national security or cybersecurity threats; and
"(3) agree not to use, for pricing, marketing, competitive, or other purposes, any information, including any Government-owned data, such as purchasing trends or spending habits, related to a product from a third-party supplier featured on the commercial e-commerce portal or the transaction of such product, except as necessary to comply with the requirements of the program established in subsection (a).
"(i)
"(j)
"(1)
"(2)
"(A) A description of the acquisition of the commercial e-commerce portals (including the extent to which the portals had to be configured or otherwise modified to meet the needs of the program) costs, and the implementation schedule.
"(B) A description of participation by suppliers, with particular attention to those described under subsection (e), that have registered or that have sold goods with at least one commercial e-commerce portal provider, including numbers, categories, and trends.
"(C) The effect, if any, of the program on the ability of agencies to meet goals established for suppliers and products described under subsection (e), including goals established under section 15(g) of the Small Business Act (15 U.S.C. 644(g)).
"(D) A discussion of the limitations, if any, to participation by suppliers in the program.
"(E) Any other matters the Comptroller General considers relevant to report.
"(k)
"(1)
"(2)
"(A) The Committees on Armed Services of the Senate and House of Representatives.
"(B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives.
"(C) The Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives.
"(3)
"(4)
"(5)
§1902. Procedures applicable to purchases below micro-purchase threshold
(a)
(1) Except as provided in paragraph (2) of this subsection, for purposes of this section, the micro-purchase threshold is $10,000.
(2) For purposes of this section, the micro-purchase threshold for procurement activities administered under sections 6303 through 6305 of title 31 by institutions of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), or related or affiliated nonprofit entities, or by nonprofit research organizations or independent research institutes is—
(A) $10,000; or
(B) such higher threshold as determined appropriate by the head of the relevant executive agency and consistent with clean audit findings under chapter 75 of title 31, internal institutional risk assessment, or State law.
(b)
(1)
(2)
(c)
(d)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3720; Pub. L. 114–328, div. A, title II, §217(b), Dec. 23, 2016, 130 Stat. 2051; Pub. L. 115–91, div. A, title VIII, §806(a), Dec. 12, 2017, 131 Stat. 1456; Pub. L. 115–232, div. A, title VIII, §§812(a)(2)(C)(ix), 821(b), Aug. 13, 2018, 132 Stat. 1847, 1853.)
Adjustment of Micro-Purchase Threshold
For adjustment of dollar threshold pursuant to section 1908 of this title, see definition of micro-purchase threshold in Federal Acquisition Regulation 2.101.
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1902 | 41:428. | Pub. L. 93–400, §32, as added Pub. L. 103–355, title IV, §4301(a), Oct. 13, 1994, 108 Stat. 3346; Pub. L. 104–106, title XLIII, §§4304(b)(4), (c)(3), 4311, Feb. 10, 1996, 110 Stat. 664, 671. |
Senate Revision Amendment
In subsecs. (a), (d), and (e), "$3,000" substituted for "$2,500" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010).
Editorial Notes
Amendments
2018—Subsec. (a)(1). Pub. L. 115–232, §821(b), struck out "sections 2338 and 2339 of title 10 and" after "Except as provided in".
Subsec. (b)(1). Pub. L. 115–232, §812(a)(2)(C)(ix), struck out ", section 2323 of title 10," after "(15 U.S.C. 637(a))".
2017—Subsec. (a)(1). Pub. L. 115–91 substituted "$10,000" for "$3,000".
2016—Subsec. (a). Pub. L. 114–328, §217(b)(1), designated existing provisions as par. (1), substituted "Except as provided in sections 2338 and 2339 of title 10 and paragraph (2) of this subsection, for purposes" for "For purposes" and added par. (2).
Subsecs. (d), (e). Pub. L. 114–328, §217(b)(2), substituted "with a price not greater than the micro-purchase threshold" for "not greater than $3,000".
Statutory Notes and Related Subsidiaries
Convenience Checks
Pub. L. 115–91, div. A, title VIII, §806(b), Dec. 12, 2017, 131 Stat. 1456, provided that: "A convenience check may not be used for an amount in excess of one half of the micro-purchase threshold under section 1902(a) of title 41, United States Code, or a lower amount established by the head of the agency."
Micro-Purchase Threshold for Procurement Solicitations by Research Institutions
Pub. L. 114–329, div. A, title II, §207, Jan. 6, 2017, 130 Stat. 3001, provided that:
"(a)
"(1) $10,000 (as adjusted periodically to account for inflation); or
"(2) such higher threshold as determined appropriate by the head of the relevant executive agency and consistent with audit findings under chapter 75 of title 31, United States Code, internal institutional risk assessment, or State law.
"(b)
[For definitions of terms used in section 207 of Pub. L. 114–329, set out above, see section 2 of Pub. L. 114–329, set out as a note under section 1862s of Title 42, The Public Health and Welfare.]
Micro-Purchase Guidelines
Pub. L. 111–240, title I, §1332, Sept. 27, 2010, 124 Stat. 2541, provided that: "Not later than 1 year after the date of enactment of this Act [Sept. 27, 2010], the Director of the Office of Management and Budget, in coordination with the Administrator of General Services, shall issue guidelines regarding the analysis of purchase card expenditures to identify opportunities for achieving and accurately measuring fair participation of small business concerns in purchases in an amount not in excess of the micro-purchase threshold, as defined in section 32 of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 428) [now 41 U.S.C. 1902] (in this section referred to as 'micro-purchases'), consistent with the national policy on small business participation in Federal procurements set forth in sections 2(a) and 15(g) of the Small Business Act (15 U.S.C. 631(a) and 644(g)), and dissemination of best practices for participation of small business concerns in micro-purchases."
[For definition of "small business concern" as used in section 1332 of Pub. L. 111–240, set out above, see section 1001 of Pub. L. 111–240, set out as a note under section 632 of Title 15, Commerce and Trade.]
§1903. Special emergency procurement authority
(a)
(1) in support of a contingency operation (as defined in section 101(a) of title 10);
(2) to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack against the United States;
(3) in support of a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate the provision of international disaster assistance pursuant to chapter 9 of part I of the Foreign Assistance Act of 1961 (22 U.S.C. 2292 et seq.); or
(4) in support of an emergency or major disaster (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122)).
(b)
(1) the amount specified in section 1902(a), (d), and (e) of this title shall be deemed to be—
(A) $15,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and
(B) $25,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States;
(2) the term "simplified acquisition threshold" means—
(A) $750,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and
(B) $1,500,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States; and
(3) the $5,000,000 limitation in sections 1901(a)(2) and 3305(a)(2) of this title and section 3205(a)(2) of title 10 is deemed to be $10,000,000.
(c)
(1)
(2)
(A) cost accounting standards prescribed under section 1502 of this title; or
(B) cost or pricing data requirements (commonly referred to as truth in negotiating) under chapter 35 of this title and chapter 271 of title 10.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3721; Pub. L. 114–92, div. A, title VIII, §816, Nov. 25, 2015, 129 Stat. 897; Pub. L. 114–328, div. A, title VIII, §816, title XVI, §1641, Dec. 23, 2016, 130 Stat. 2272, 2600; Pub. L. 115–232, div. A, title VIII, §836(b)(5), Aug. 13, 2018, 132 Stat. 1861; Pub. L. 117–81, div. A, title XVII, §1702(h)(7), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1903(a) | 41:428a(a), (e). | Pub. L. 93–400, §32A, as added Pub. L. 108–136, title XIV, §1443(a)(1), Nov. 24, 2003, 117 Stat. 1675; Pub. L. 108–375, title VIII, §822, Oct. 28, 2004, 118 Stat. 2016. |
| 1903(b) | 41:428a(b), (c). | |
| 1903(c) | 41:428a(d). |
Editorial Notes
References in Text
The Foreign Assistance Act of 1961, referred to in subsec. (a)(3), is Pub. L. 87–195, Sept. 4, 1961, 75 Stat. 424. Chapter 9 of part I of the Act is classified generally to part IX [§2292 et seq.] of subchapter I of chapter 32 of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 2151 of Title 22 and Tables.
Amendments
2021—Subsec. (b)(3). Pub. L. 117–81, §1702(h)(7)(A), substituted "section 3205(a)(2)" for "section 2304(g)(1)(B)".
Subsec. (c)(2)(B). Pub. L. 117–81, §1701(h)(7)(B), substituted "chapter 271" for "section 2306a".
2018—Subsec. (c). Pub. L. 115–232, §836(b)(5)(A), substituted "Commercial Product or Commercial Service" for "Commercial Item" in heading.
Subsec. (c)(1). Pub. L. 115–232, §836(b)(5)(B), substituted "as a commercial product or a commercial service" for "as a commercial item".
Subsec. (c)(2). Pub. L. 115–232, §836(b)(5)(C), substituted "for a product or service treated as a commercial product or a commercial service" for "for an item or service treated as a commercial item" in introductory provisions.
2016—Subsec. (a)(2). Pub. L. 114–328, §1641, inserted "cyber," before "nuclear,".
Subsec. (a)(3), (4). Pub. L. 114–328, §816, added pars. (3) and (4).
2015—Subsec. (b)(2)(A). Pub. L. 114–92, §816(1), substituted "$750,000" for "$250,000".
Subsec. (b)(2)(B). Pub. L. 114–92, §816(2), substituted "$1,500,000" for "$1,000,000".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§1904. Certain transactions for defense against attack
(a)
(1)
(2)
(3)
(A) section 845(c) of that Act shall apply with respect to prototype projects carried out under paragraph (2); and
(B) the Director of the Office of Management and Budget shall perform the functions of the Secretary of Defense under section 845(d) of that Act.
(4)
(A)
(B)
(b)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3721.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1904 | 41:428a note. | Pub. L. 108–136, title XIV, §1441, Nov. 24, 2003, 117 Stat. 1673. |
In subsection (a)(2), the reference to subsection (g) of section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160, 10 U.S.C. 2371 note) is changed to subsection (i) because of section 847(c)(1) of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136, 117 Stat. 1554), which redesignated subsection (g) as subsection (h), and section 823(2) of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163, 119 Stat. 3387), which redesignated subsection (h) as subsection (i).
In subsection (a)(3)(A), the words "paragraph (2)" are substituted for "this paragraph" to correct the cross-reference.
In subsection (a)(4)(A), the words "to use the authority for such project" are omitted as unnecessary.
In subsection (c), the words "Committee on Homeland Security and Governmental Affairs" are substituted for "Committee on Governmental Affairs" on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004). The words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Reform" on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007).
Editorial Notes
References in Text
Section 2371 of title 10, referred to in subsec. (a)(1), was renumbered section 4021 of title 10 by Pub. L. 116–283, §1841(b)(1), as amended by Pub. L. 117–81, div. A, title XVII, §1701(u)(2)(B), Dec. 27, 2021, 135 Stat. 2151.
Section 845 of the National Defense Authorization Act for Fiscal Year 1994 (Public Law 103–160, 10 U.S.C. 2371 note), referred to in subsec. (a)(2), was repealed by Pub. L. 114–92, div. A, title VIII, §815(c), Nov. 25, 2015, 129 Stat. 896.
Section 2371(h) of title 10, referred to in subsec. (c), was repealed by Pub. L. 113–291, div. A, title X, §1071(f)(20), Dec. 19, 2014, 128 Stat. 3511.
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
1 See References in Text note below.
§1905. List of laws inapplicable to contracts or subcontracts not greater than simplified acquisition threshold
(a)
(b)
(1)
(2)
(c)
(1) provides for criminal or civil penalties; or
(2) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts or subcontracts in amounts not greater than the simplified acquisition threshold.
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3722.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1905(a) | no source. | |
| 1905(b)–(d) | 41:429. | Pub. L. 93–400, §33, as added Pub. L. 103–355, title IV, §4101, Oct. 13, 1994, 108 Stat. 3339. |
§1906. List of laws inapplicable to procurements of commercial products and commercial services
(a)
(b)
(1)
(2)
(c)
(1)
(2)
(3)
(4)
(d)
(1) provides for criminal or civil penalties; or
(2) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts for the procurement of commercial products or commercial services.
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3723; Pub. L. 115–91, div. A, title VIII, §820, Dec. 12, 2017, 131 Stat. 1464; Pub. L. 115–232, div. A, title VIII, §836(b)(6)(A), (B)(i), Aug. 13, 2018, 132 Stat. 1861.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1906(a) | no source. | |
| 1906(b)–(e) | 41:430. | Pub. L. 93–400, §34, as added Pub. L. 103–355, title VIII, §8003(a), Oct. 13, 1994, 108 Stat. 3388. |
Editorial Notes
Amendments
2018—Pub. L. 115–232, §836(b)(6)(B)(i), substituted "List of laws inapplicable to procurements of commercial products and commercial services" for "List of laws inapplicable to procurements of commercial items" in section catchline.
Subsecs. (b) to (d). Pub. L. 115–232, §836(b)(6)(A), substituted "commercial products or commercial services" for "commercial items" wherever appearing.
2017—Subsec. (c)(1). Pub. L. 115–91 inserted at end "The term does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Federal Government and other parties and are not identifiable to any particular contract."
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§1907. List of laws inapplicable to procurements of commercially available off-the-shelf items
(a)
(1)
(2)
(3)
(A) section 15 of the Small Business Act (15 U.S.C. 644); or
(B) bid protest procedures developed under the authority of—
(i) subchapter V of chapter 35 of title 31;
(ii) section 3308 of title 10; or
(iii) sections 3706 and 3707 of this title.
(b)
(1) provides for criminal or civil penalties; or
(2) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts for the procurement of commercially available off-the-shelf items.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3724;Pub. L. 117–81, div. A, title XVII, §1702(h)(8), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1907 | 41:431(a), (b). | Pub. L. 93–400, §35(a), (b), as added Pub. L. 104–106, title XLII, §4203(a), Feb. 10, 1996, 110 Stat. 654; Pub. L. 105–85, title X, §1073(g)(2)(C), Nov. 18, 1997, 111 Stat. 1906. |
Amendments
2021—Subsec. (a)(3)(B)(ii). Pub. L. 117–81 substituted "section 3308" for "section 2305(e) and (f)".
§1908. Inflation adjustment of acquisition-related dollar thresholds
(a)
(b)
(1)
(2)
(A) in chapters 67 and 83 of this title;
(B) in sections 3141 to 3144, 3146, and 3147 of title 40;
(C) the United States Trade Representative establishes pursuant to title III of the Trade Agreements Act of 1979 (19 U.S.C. 2511 et seq.); or
(D) in sections 3131 through 3134 of title 40, except any modification of any such dollar threshold made by regulation in effect on the date of the enactment of this subparagraph shall remain in effect.
(3)
(c)
(1)
(A) in effect on October 1, 2000, that was first specified in a law that took effect on or before October 1, 2000, is the October 1, 2000, constant dollar value of that dollar threshold; and
(B) specified in a law that takes effect after October 1, 2000, is the constant dollar value of that threshold as of the effective date of that dollar threshold pursuant to that law.
(2)
(3)
(d)
(e)
(1) calculated on the basis of changes in the Consumer Price Index for all-urban consumers published monthly by the Secretary of Labor; and
(2) rounded, in the case of a dollar threshold that as calculated under paragraph (1) is—
(A) less than $10,000, to the nearest $500;
(B) not less than $10,000, but less than $100,000, to the nearest $5,000;
(C) not less than $100,000, but less than $1,000,000, to the nearest $50,000;
(D) not less than $1,000,000, but less than $10,000,000, to the nearest $500,000;
(E) not less than $10,000,000, but less than $100,000,000, to the nearest $5,000,000;
(F) not less than $100,000,000, but less than $1,000,000,000, to the nearest $50,000,000; and
(G) $1,000,000,000 or more, to the nearest $500,000,000.
(f)
(1)
(2)
(A) shall determine, in writing, whether the dollar threshold is required to be adjusted under this section; and
(B) on determining that it should be adjusted, shall publish in the Federal Register a revised notice of the adjustment dollar thresholds under this section that includes the adjustment of the dollar threshold covered by the petition.
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3725; Pub. L. 114–92, div. A, title VIII, §817, Nov. 25, 2015, 129 Stat. 897; Pub. L. 115–91, div. A, title VIII, §821, Dec. 12, 2017, 131 Stat. 1464; Pub. L. 117–58, div. G, title IX, §70922(f), Nov. 15, 2021, 135 Stat. 1305; Pub. L. 117–81, div. A, title VIII, §861, Dec. 27, 2021, 135 Stat. 1851.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 1908(a) | no source. | |
| 1908(b)(1) | 41:431a(c). | Pub. L. 93–400, §35A, as added Pub. L. 108–375, title VIII, §807(a)(1), Oct. 28, 2004, 118 Stat. 2010. |
| 1908(b)(2) | 41:431a(d). | |
| 1908(b)(3) | 41:431a note. | Pub. L. 108–375, title VIII, §807(c)(1), Oct. 28, 2004, 118 Stat. 2011. |
| 1908(c)(1), (2) | 41:431a(a). | |
| 1908(c)(3) | 41:431a note. | Pub. L. 108–375, title VIII, §807(c)(2), Oct. 28, 2004, 118 Stat. 2011. |
| 1908(d) | 41:431a(b). | |
| 1908(e) | 41:431a(e). | |
| 1908(f) | 41:431a(f). |
In subsection (c)(3), the words "After the date of the enactment of this Act" are omitted as obsolete.
In subsection (e)(1), the words "Secretary of Labor" are substituted for "Department of Labor" because of 29:551.
Editorial Notes
References in Text
The Trade Agreements Act of 1979, referred to in subsec. (b)(2)(C), is Pub. L. 96–39, July 26, 1979, 93 Stat. 144. Title III of the Act is classified generally to subchapter I (§2511 et seq.) of chapter 13 of Title 19, Customs Duties. For complete classification of this Act to the Code, see References in Text note set out under section 2501 of Title 19 and Tables.
The date of the enactment of this subparagraph, referred to in subsec. (b)(2)(D), is the date of enactment of Pub. L. 117–81, which was approved Dec. 27, 2021.
Amendments
2021—Subsec. (b)(2)(A). Pub. L. 117–58 substituted "chapters 67 and 83" for "chapter 67".
Subsec. (b)(2)(D). Pub. L. 117–81, §861(a), added subpar. (D).
Subsec. (d). Pub. L. 117–81, §861(b), struck out second period at end.
2017—Subsec. (d). Pub. L. 115–91 inserted before period at end "and shall apply, in the case of the procurement of property or services by contract, to a contract, and any subcontract at any tier under the contract, in effect on that date without regard to the date of award of the contract or subcontract."
2015—Subsec. (e)(2). Pub. L. 114–92, §817(1), substituted "as calculated under paragraph (1)" for "on the day before the adjustment" in introductory provisions.
Subsec. (e)(2)(D) to (G). Pub. L. 114–92, §817(2), (3), added subpars. (D) to (G) and struck out former subpar. (D) which read as follows: "$1,000,000 or more, to the nearest $500,000."
Statutory Notes and Related Subsidiaries
Adjustment for Inflation of Right-Hand Drive Passenger Sedans
Pub. L. 112–81, div. A, title VIII, §814(b), Dec. 31, 2011, 125 Stat. 1491, provided that: "The Department of Defense representative to the Federal Acquisition Regulatory Council established under section 1302 of title 41, United States Code, shall ensure that the threshold established in section 2253 of title 10, United States Code, for the acquisition of right-hand drive passenger sedans is included on the list of dollar thresholds that are subject to adjustment for inflation in accordance with the requirements of section 1908 of title 41, United States Code, and is adjusted pursuant to such provision, as appropriate."
§1909. Management of purchase cards
(a)
(1) There is a record in each executive agency of each holder of a purchase card issued by the agency for official use, annotated with the limitations on single transactions and total transactions that are applicable to the use of each such card or check by that purchase card holder.
(2) Each purchase card holder and individual issued a convenience check is assigned an approving official other than the card holder with the authority to approve or disapprove transactions.
(3) The holder of a purchase card and each official with authority to authorize expenditures charged to the purchase card are responsible for—
(A) reconciling the charges appearing on each statement of account for that purchase card with receipts and other supporting documentation; and
(B) forwarding a summary report to the certifying official in a timely manner of information necessary to enable the certifying official to ensure that the Federal Government ultimately pays only for valid charges that are consistent with the terms of the applicable Government-wide purchase card contract entered into by the Administrator of General Services.
(4) Any disputed purchase card charge, and any discrepancy between a receipt and other supporting documentation and the purchase card statement of account, is resolved in the manner prescribed in the applicable Government-wide purchase card contract entered into by the Administrator of General Services.
(5) Payments on purchase card accounts are made promptly within prescribed deadlines to avoid interest penalties.
(6) Rebates and refunds based on prompt payment, sales volume, or other actions by the agency on purchase card accounts are reviewed for accuracy and properly recorded as a receipt to the agency that pays the monthly bill.
(7) Records of each purchase card transaction (including records on associated contracts, reports, accounts, and invoices) are retained in accordance with standard Government policies on the disposition of records.
(8) Periodic reviews are performed to determine whether each purchase card holder has a need for the purchase card.
(9) Appropriate training is provided to each purchase card holder and each official with responsibility for overseeing the use of purchase cards issued by the executive agency.
(10) The executive agency has specific policies regarding the number of purchase cards issued by various component organizations and categories of component organizations, the credit limits authorized for various categories of card holders, and categories of employees eligible to be issued purchase cards, and that those policies are designed to minimize the financial risk to the Federal Government of the issuance of the purchase cards and to ensure the integrity of purchase card holders.
(11) The executive agency uses effective systems, techniques, and technologies to prevent or identify illegal, improper, or erroneous purchases.
(12) The executive agency invalidates the purchase card of each employee who—
(A) ceases to be employed by the agency, immediately upon termination of the employment of the employee; or
(B) transfers to another unit of the agency, immediately upon the transfer of the employee unless the agency determines that the units are covered by the same purchase card authority.
(13) The executive agency takes steps to recover the cost of any illegal, improper, or erroneous purchase made with a purchase card or convenience check by an employee, including, as necessary, through salary offsets.
(b)
(c)
(1)
(2)
(3)
(A) A summary description of confirmed violations involving misuse of a purchase card following completion of a review by the agency or by the Inspector General of the agency.
(B) A summary description of all adverse personnel action, punishment, or other action taken based on each violation.
(d)
(1) conduct periodic assessments of the agency purchase card or convenience check programs to identify and analyze risks of illegal, improper, or erroneous purchases and payments in order to develop a plan for using such risk assessments to determine the scope, frequency, and number of periodic audits of purchase card or convenience check transactions;
(2) perform analysis or audits, as necessary, of purchase card transactions designed to identify—
(A) potentially illegal, improper, or erroneous uses of purchase cards;
(B) any patterns of such uses; and
(C) categories of purchases that could be made by means other than purchase cards in order to better aggregate purchases and obtain lower prices (excluding transactions made under card-based strategic sourcing arrangements);
(3) report to the head of the executive agency concerned on the results of such analysis or audits; and
(4) report to the Director of the Office of Management and Budget on the implementation of recommendations made to the head of the executive agency to address findings of any analysis or audit of purchase card and convenience check transactions or programs for compilation and transmission by the Director to Congress and the Comptroller General.
(e)
(Added Pub. L. 112–194, §2(a)(1), Oct. 5, 2012, 126 Stat. 1445; Pub. L. 117–81, div. A, title XVII, §1702(h)(9), Dec. 27, 2021, 135 Stat. 2158.)
Editorial Notes
Amendments
2021—Subsec. (e). Pub. L. 117–81 substituted "section 4754" for "section 2784".
Statutory Notes and Related Subsidiaries
Deadline for Guidance on Management of Purchase Cards
Pub. L. 112–194, §2(c), Oct. 5, 2012, 126 Stat. 1448, required the Director of the Office of Management and Budget to prescribe the guidance required by subsec. (b) of this section not later than 180 days after Oct. 5, 2012.
CHAPTER 21—RESTRICTIONS ON OBTAINING AND DISCLOSING CERTAIN INFORMATION
§2101. Definitions
In this chapter:
(1)
(2)
(A) Cost or pricing data (as defined in section 3701 of title 10 with respect to procurements subject to that section and section 3501(a) of this title with respect to procurements subject to that section).
(B) Indirect costs and direct labor rates.
(C) Proprietary information about manufacturing processes, operations, or techniques marked by the contractor in accordance with applicable law or regulation.
(D) Information marked by the contractor as "contractor bid or proposal information", in accordance with applicable law or regulation.
(3)
(4)
(5)
(A) an officer, as defined in section 2104 of title 5;
(B) an employee, as defined in section 2105 of title 5; and
(C) a member of the uniformed services, as defined in section 2101(3) of title 5.
(6)
(7)
(A) Bid prices submitted in response to a Federal agency solicitation for sealed bids, or lists of those bid prices before public bid opening.
(B) Proposed costs or prices submitted in response to a Federal agency solicitation, or lists of those proposed costs or prices.
(C) Source selection plans.
(D) Technical evaluation plans.
(E) Technical evaluations of proposals.
(F) Cost or price evaluations of proposals.
(G) Competitive range determinations that identify proposals that have a reasonable chance of being selected for award of a contract.
(H) Rankings of bids, proposals, or competitors.
(I) Reports and evaluations of source selection panels, boards, or advisory councils.
(J) Other information marked as "source selection information" based on a case-by-case determination by the head of the agency, the head's designee, or the contracting officer that its disclosure would jeopardize the integrity or successful completion of the Federal agency procurement to which the information relates.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3727; Pub. L. 117–81, div. A, title XVII, §1702(h)(10), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2101(1) | 41:423(f)(5). | Pub. L. 93–400, §27(f), as added Pub. L. 100–679, §6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, §814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, §1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, §705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, §8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, §4304(a), Feb. 10, 1996, 110 Stat. 662. |
| 2101(2) | 41:423(f)(1). | |
| 2101(3) | 41:423(f)(3). | |
| 2101(4) | 41:423(f)(4). | |
| 2101(5) | 41:423(f)(7). | |
| 2101(6) | 41:423(f)(6). | |
| 2101(7) | 41:423(f)(2). |
Editorial Notes
Amendments
2021—Par. (2)(A). Pub. L. 117–81 substituted "section 3701" for "section 2306a(h)".
§2102. Prohibitions on disclosing and obtaining procurement information
(a)
(1)
(2)
(3)
(A)(i) is a present or former official of the Federal Government; or
(ii) is acting or has acted for or on behalf of, or who is advising or has advised the Federal Government with respect to, a Federal agency procurement; and
(B) by virtue of that office, employment, or relationship has or had access to contractor bid or proposal information or source selection information.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3728.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2102(a) | 41:423(a). | Pub. L. 93–400, §27(a), (b), as added Pub. L. 100–679, §6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, §814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, §1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, §705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, §8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, §4304(a), Feb. 10, 1996, 110 Stat. 659; Pub. L. 107–347, title II, §209(d)(4), Dec. 17, 2002, 116 Stat. 2930. |
| 2102(b) | 41:423(b). |
§2103. Actions required of procurement officers when contacted regarding non-Federal employment
(a)
(1) promptly report the contact in writing to the official's supervisor and to the designated agency ethics official (or designee) of the agency in which the official is employed; and
(2)(A) reject the possibility of non-Federal employment; or
(B) disqualify himself or herself from further personal and substantial participation in that Federal agency procurement until the agency authorizes the official to resume participation in the procurement, in accordance with the requirements of section 208 of title 18 and applicable agency regulations on the grounds that—
(i) the person is no longer a bidder or offeror in that Federal agency procurement; or
(ii) all discussions with the bidder or offeror regarding possible non-Federal employment have terminated without an agreement or arrangement for employment.
(b)
(c)
(1) An official who knowingly fails to comply with the requirements of this section.
(2) A bidder or offeror that engages in employment discussions with an official who is subject to the restrictions of this section, knowing that the official has not complied with paragraph (1) or (2) of subsection (a).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3728.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2103(a) | 41:423(c)(1). | Pub. L. 93–400, §27(c), as added Pub. L. 100–679, §6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, §814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, §1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, §705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, §8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, §4304(a), Feb. 10, 1996, 110 Stat. 660. |
| 2103(b) | 41:423(c)(2). | |
| 2103(c) | 41:423(c)(3), (4). |
§2104. Prohibition on former official's acceptance of compensation from contractor
(a)
(1) served, when the contractor was selected or awarded a contract, as the procuring contracting officer, the source selection authority, a member of the source selection evaluation board, or the chief of a financial or technical evaluation team in a procurement in which that contractor was selected for award of a contract in excess of $10,000,000;
(2) served as the program manager, deputy program manager, or administrative contracting officer for a contract in excess of $10,000,000 awarded to that contractor; or
(3) personally made for the Federal agency a decision to—
(A) award a contract, subcontract, modification of a contract or subcontract, or a task order or delivery order in excess of $10,000,000 to that contractor;
(B) establish overhead or other rates applicable to one or more contracts for that contractor that are valued in excess of $10,000,000;
(C) approve issuance of one or more contract payments in excess of $10,000,000 to that contractor; or
(D) pay or settle a claim in excess of $10,000,000 with that contractor.
(b)
(c)
(d)
(1) A former official who knowingly accepts compensation in violation of this section.
(2) A contractor that provides compensation to a former official knowing that the official accepts the compensation in violation of this section.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3729.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2104(a) | 41:423(d)(1). | Pub. L. 93–400, §27(d), as added Pub. L. 100–679, §6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, §814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, §1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, §705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, §8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, §4304(a), Feb. 10, 1996, 110 Stat. 660. |
| 2104(b) | 41:423(d)(2). | |
| 2104(c) | 41:423(d)(5). | |
| 2104(d) | 41:423(d)(3), (4). |
§2105. Penalties and administrative actions
(a)
(b)
(1) an individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct; and
(2) an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct.
(c)
(1)
(A) Canceling the Federal agency procurement, if a contract has not yet been awarded.
(B) Rescinding a contract with respect to which—
(i) the contractor or someone acting for the contractor has been convicted for an offense punishable under subsection (a); or
(ii) the head of the agency that awarded the contract has determined, based on a preponderance of the evidence, that the contractor or a person acting for the contractor has engaged in conduct constituting the offense.
(C) Initiating a suspension or debarment proceeding for the protection of the Federal Government in accordance with procedures in the Federal Acquisition Regulation.
(D) Initiating an adverse personnel action, pursuant to the procedures in chapter 75 of title 5 or other applicable law or regulation.
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3730.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2105(a) | 41:423(e)(1). | Pub. L. 93–400, §27(e), as added Pub. L. 100–679, §6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, §814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, §1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, §705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, §8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, §4304(a), Feb. 10, 1996, 110 Stat. 661. |
| 2105(b) | 41:423(e)(2). | |
| 2105(c) | 41:423(e)(3). |
In subsection (a), the word "violates" is substituted for "engages in conduct constituting a violation of" to eliminate unnecessary words.
In subsection (b), the words "liable to the Federal Government for" are substituted for "subject to" for consistency in the revised title and with other titles of the United States Code.
In subsection (c)(1), the words "has violated" are substituted for "has engaged in conduct constituting a violation of" to eliminate unnecessary words.
§2106. Reporting information believed to constitute evidence of offense
A person may not file a protest against the award or proposed award of a Federal agency procurement contract alleging a violation of section 2102, 2103, or 2104 of this title, and the Comptroller General may not consider that allegation in deciding a protest, unless the person, no later than 14 days after the person first discovered the possible violation, reported to the Federal agency responsible for the procurement the information that the person believed constitutes evidence of the offense.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3731.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2106 | 41:423(g). | Pub. L. 93–400, §27(g), as added Pub. L. 100–679, §6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, §814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, §1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, §705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, §8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, §4304(a), Feb. 10, 1996, 110 Stat. 663. |
§2107. Savings provisions
This chapter does not—
(1) restrict the disclosure of information to, or its receipt by, a person or class of persons authorized, in accordance with applicable agency regulations or procedures, to receive that information;
(2) restrict a contractor from disclosing its own bid or proposal information or the recipient from receiving that information;
(3) restrict the disclosure or receipt of information relating to a Federal agency procurement after it has been canceled by the Federal agency before contract award unless the Federal agency plans to resume the procurement;
(4) prohibit individual meetings between a Federal agency official and an offeror or potential offeror for, or a recipient of, a contract or subcontract under a Federal agency procurement, provided that unauthorized disclosure or receipt of contractor bid or proposal information or source selection information does not occur;
(5) authorize the withholding of information from, nor restrict its receipt by, Congress, a committee or subcommittee of Congress, the Comptroller General, a Federal agency, or an inspector general of a Federal agency;
(6) authorize the withholding of information from, nor restrict its receipt by, the Comptroller General in the course of a protest against the award or proposed award of a Federal agency procurement contract; or
(7) limit the applicability of a requirement, sanction, contract penalty, or remedy established under another law or regulation.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3731.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2107 | 41:423(h). | Pub. L. 93–400, §27(h), as added Pub. L. 100–679, §6(a), Nov. 17, 1988, 102 Stat. 4063; Pub. L. 101–189, title VIII, §814(a)–(d)(1), Nov. 29, 1989, 103 Stat. 1495; Pub. L. 101–510, title XIV, §1484(l)(6), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 102–25, title VII, §705(i), Apr. 6, 1991, 105 Stat. 121; Pub. L. 103–355, title VIII, §8301(e), Oct. 13, 1994, 108 Stat. 3397; Pub. L. 104–106, title XLIII, §4304(a), Feb. 10, 1996, 110 Stat. 663. |
CHAPTER 23—MISCELLANEOUS
§2301. Use of electronic commerce in Federal procurement
(a)
(b)
(c)
(d)
(1) are implemented with uniformity throughout the agency, to the extent practicable;
(2) are implemented only after granting due consideration to the use or partial use, as appropriate, of existing electronic commerce and electronic data interchange systems and infrastructures such as the Federal acquisition computer network architecture known as FACNET;
(3) facilitate access to Federal Government procurement opportunities, including opportunities for small business concerns, socially and economically disadvantaged small business concerns, and business concerns owned predominantly by women; and
(4) ensure that any notice of agency requirements or agency solicitation for contract opportunities is provided in a form that allows convenient and universal user access through a single, Government-wide point of entry.
(e)
(1) issue policies to promote, to the maximum extent practicable, uniform implementation of this section by executive agencies, with due regard for differences in program requirements among agencies that may require departures from uniform procedures and processes in appropriate cases, when warranted because of the agency mission;
(2) ensure that the head of each executive agency complies with the requirements of subsection (d); and
(3) consult with the heads of appropriate Federal agencies with applicable technical and functional expertise, including the Office of Information and Regulatory Affairs, the National Institute of Standards and Technology, the General Services Administration, and the Department of Defense.
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3732; Pub. L. 114–328, div. A, title VIII, §833(b)(5)(A)(ii), Dec. 23, 2016, 130 Stat. 2285.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2301(a) | 41:426(f). | Pub. L. 93–400, §30, as added Pub. L. 103–355, title IX, §9001(a), Oct. 13, 1994, 108 Stat. 3399; Pub. L. 105–85, title VIII, §850(a), Nov. 18, 1997, 111 Stat. 1847; Pub. L. 106–398, §1 [[div. A], title VIII, §810(d)], Oct. 30, 2000, 114 Stat. 1654A–210. |
| 2301(b) | 41:426(a). | |
| 2301(c) | 41:426(b). | |
| 2301(d) | 41:426(c). | |
| 2301(e) | 41:426(d). |
In this section, the text of 41:426(e) is omitted as obsolete because the last report was to be submitted not later than March 1, 2004.
In subsection (c), the word "executive" is added for clarity and for consistency in the revised section.
In subsection (e)(2), the words "with respect to the agency systems, technologies, procedures, and processes established pursuant to this section" are omitted as unnecessary.
Editorial Notes
Amendments
2016—Subsec. (f). Pub. L. 114–328 added subsec. (f).
Executive Documents
Streamlining Procurement Through Electronic Commerce
Memorandum of President of the United States, Oct. 28, 1993, 58 F.R. 58095, provided:
Memorandum for the Heads of Executive Departments and Agencies [and] the President's Management Council
The Federal Government spends $200 billion annually buying goods and services. Unfortunately, the red tape and burdensome paperwork of the current procurement system increases costs, produces unnecessary delays, and reduces Federal work force productivity. Moving to an electronic commerce system to simplify and streamline the purchasing process will promote customer service and cost-effectiveness. The electronic exchange of acquisition information between the private sector and the Federal Government also will increase competition by improving access to Federal contracting opportunities for the more than 300,000 vendors currently doing business with the Government, particularly small businesses, as well as many other vendors who find access to bidding opportunities difficult under the current system. For these reasons, I am committed to fundamentally altering and improving the way the Federal Government buys goods and services by ensuring that electronic commerce is implemented for appropriate Federal purchases as quickly as possible.
1. OBJECTIVES.
The objectives of this electronic commerce initiative are to:
(a) exchange procurement information—such as solicitations, offers, contracts, purchase orders, invoices, payments, and other contractual documents—electronically between the private sector and the Federal Government to the maximum extent practical;
(b) provide businesses, including small, small disadvantaged, and women-owned businesses, with greater access to Federal procurement opportunities;
(c) ensure that potential suppliers are provided simplified access to the Federal Government's electronic commerce system;
(d) employ nationally and internationally recognized data formats that serve to broaden and ease the electronic interchange of data; and
(e) use agency and industry systems and networks to enable the Government and potential suppliers to exchange information and access Federal procurement data.
2. IMPLEMENTATION.
The President's Management Council, in coordination with the Office of Federal Procurement Policy of the Office of Management and Budget, and in consultation with appropriate Federal agencies with applicable technical and functional expertise, as necessary, shall provide overall leadership, management oversight, and policy direction to implement electronic commerce in the executive branch through the following actions:
(a) by March 1994, define the architecture for the Government-wide electronic commerce acquisition system and identify executive departments or agencies responsible for developing, implementing, operating, and maintaining the Federal electronic system;
(b) by September 1994, establish an initial electronic commerce capability to enable the Federal Government and private vendors to electronically exchange standardized requests for quotations, quotes, purchase orders, and notice of awards and begin Government-wide implementation;
(c) by July 1995, implement a full scale Federal electronic commerce system that expands initial capabilities to include electronic payments, document interchange, and supporting databases; and
(d) by January 1997, complete Government-wide implementation of electronic commerce for appropriate Federal purchases, to the maximum extent possible.
This implementation schedule should be accelerated where practicable.
The head of each executive department or agency shall:
(a) ensure that budgetary resources are available, within approved budget levels, for electronic commerce implementation in each respective department or agency;
(b) assist the President's Management Council in implementing the electronic commerce system as quickly as possible in accordance with the schedules established herein; and
(c) designate one or more senior level employees to assist the President's Management Council and serve as a point of contact for the development and implementation of the Federal electronic commerce system within each respective department or agency.
3. NO PRIVATE RIGHTS CREATED.
This directive is for the internal management of the executive branch and does not create any right or benefit, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.
The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.
William J. Clinton.
§2302. Rights in technical data
(a)
(b)
(1)
(2)
(c)
(1)
(A) the Federal Government has unlimited rights in technical data developed exclusively with Federal funds if delivery of the data—
(i) was required as an element of performance under a contract; and
(ii) is needed to ensure the competitive acquisition of supplies or services that will be required in substantial quantities in the future; and
(B) the Federal Government and each agency of the Federal Government has an unrestricted, royalty-free right to use, or to have its contractors use, for governmental purposes (excluding publication outside the Federal Government) technical data developed exclusively with Federal funds.
(2)
(d)
(1) Whether the item or process to which the technical data pertains was developed—
(A) exclusively with Federal funds;
(B) exclusively at private expense; or
(C) in part with Federal funds and in part at private expense.
(2) The statement of congressional policy and objectives in section 200 of title 35, the statement of purposes in section 2(b) of the Small Business Innovation Development Act of 1982 (Public Law 97–219, 15 U.S.C. 638 note), and the declaration of policy in section 2 of the Small Business Act (15 U.S.C. 631).
(3) The interest of the Federal Government in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture.
(e)
(1) defining the respective rights of the Federal Government and the contractor or subcontractor (at any tier) regarding technical data to be delivered under the contract;
(2) specifying technical data to be delivered under the contract and schedules for delivery;
(3) establishing or referencing procedures for determining the acceptability of technical data to be delivered under the contract;
(4) establishing separate contract line items for technical data to be delivered under the contract;
(5) to the maximum practicable extent, identifying, in advance of delivery, technical data which is to be delivered with restrictions on the right of the Federal Government to use the data;
(6) requiring the contractor to revise any technical data delivered under the contract to reflect engineering design changes made during the performance of the contract and affecting the form, fit, and function of the items specified in the contract and to deliver the revised technical data to an agency within a time specified in the contract;
(7) requiring the contractor to furnish written assurance, when technical data is delivered or is made available, that the technical data is complete and accurate and satisfies the requirements of the contract concerning technical data;
(8) establishing remedies to be available to the Federal Government when technical data required to be delivered or made available under the contract is found to be incomplete or inadequate or to not satisfy the requirements of the contract concerning technical data; and
(9) authorizing the head of the agency to withhold payments under the contract (or exercise another remedy the head of the agency considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3733.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2302(a) | 41:418a(a) (1st sentence). | Pub. L. 93–400, §21, as added Pub. L. 98–577, title III, §301(a), Oct. 30, 1984, 98 Stat. 3074; Pub. L. 99–145, title IX, §961(d)(2), Nov. 8, 1985, 99 Stat. 704. |
| 2302(b) | 41:418a(a) (2d, last sentences). | |
| 2302(c) | 41:418a(b). | |
| 2302(d) | 41:418a(c). | |
| 2302(e) | 41:418a(d). |
In subsection (a), the words "Federal Acquisition Regulation" are substituted for "single system of Government-wide procurement regulations as defined in section 403(4) of this title" because section 3(a)(1) of the Office of Federal Procurement Policy Act Amendments of 1988 (Public Law 100–679, 102 Stat. 4055) substituted "Federal Acquisition Regulation" for "single system of Government-wide procurement regulations" in section 6 of the Office of Federal Procurement Policy Act (Public Law 93–400, 88 Stat. 797, 41:406) and because section 3(c) of the Office of Federal Procurement Policy Act Amendments of 1988 (102 Stat. 4056) struck section 4(4) of the Office of Federal Procurement Policy Act (88 Stat. 797, 41:403(4)), as amended by section 4 of the Office of Federal Procurement Policy Act Amendments of 1983 (Public Law 98–191, 97 Stat. 1326), which had defined "single system of Government-wide procurement regulations".
§2303. Ethics safeguards related to contractor conflicts of interest
(a)
(b)
(1)
(2)
(A) define "personal conflict of interest" as it relates to contractor employees performing relevant acquisition functions; and
(B) require each contractor whose employees perform relevant acquisition functions to—
(i) identify and prevent personal conflicts of interest for the employees;
(ii) prohibit contractor employees who have access to non-public government information obtained while performing relevant acquisition functions from using the information for personal gain;
(iii) report any personal conflict-of-interest violation by an employee to the applicable contracting officer or contracting officer's representative as soon as it is identified;
(iv) maintain effective oversight to verify compliance with personal conflict-of-interest safeguards;
(v) have procedures in place to screen for potential conflicts of interest for all employees performing relevant acquisition functions; and
(vi) take appropriate disciplinary action in the case of employees who fail to comply with policies established pursuant to this section.
(3)
(A)
(i) the personal conflicts-of-interest policy developed under this subsection; and
(ii) the contractor's responsibilities under the policy.
(B)
(i) contracts entered into on or after that effective date; and
(ii) task or delivery orders awarded on or after that effective date, regardless of whether the contracts pursuant to which the task or delivery orders are awarded are entered before, on, or after October 14, 2008.
(4)
(A)
(B)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3735.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2303(a) | no source. | |
| 2303(b), (c) | 41:405c(a), (c). | Pub. L. 110–417, [div. A], title VIII, §841(a), (c), Oct. 14, 2008, 122 Stat. 4537, 4539. |
In this section, the words "relevant acquisition functions" are substituted for "acquisition functions closely associated with inherently governmental functions" because of subsection (a).
In subsection (b), the words "Not later than 270 days after the date of the enactment of this Act" are omitted because of section 6(f) of the bill.
In subsection (b)(4)(A), the words "Except as provided in subparagraph (B)" are omitted as unnecessary.
Statutory Notes and Related Subsidiaries
Preventing Organizational Conflicts of Interest in Federal Acquisition
Pub. L. 117–324, Dec. 27, 2022, 136 Stat. 4439, provided that:
"SECTION 1. SHORT TITLE.
"This Act may be cited as the 'Preventing Organizational Conflicts of Interest in Federal Acquisition Act'.
"SEC. 2. PREVENTING ORGANIZATIONAL CONFLICTS OF INTEREST IN FEDERAL ACQUISITION.
"(a)
"(1) to provide and update—
"(A) definitions related to specific types of organizational conflicts of interest, including unequal access to information, impaired objectivity, and biased ground rules;
"(B) definitions, guidance, and illustrative examples related to relationships of contractors with public, private, domestic, and foreign entities that may cause contract support to be subject to potential organizational conflicts of interest, including undue influence; and
"(C) illustrative examples of situations related to the potential organizational conflicts of interest identified under this paragraph, including an example of the awarding by a Federal regulatory agency of a contract for consulting services to a contractor if employees of the contractor performing work under such contract are permitted by the contractor to simultaneously perform work under a contract for a private sector client under the regulatory purview of such agency;
"(2) to provide executive agencies with solicitation provisions and contract clauses to avoid or mitigate organizational conflicts of interest, for agency use as needed, that require contractors to disclose information relevant to potential organizational conflicts of interest and limit future contracting with respect to potential conflicts of interest with the work to be performed under awarded contracts;
"(3) to allow executive agencies to tailor such solicitation provisions and contract clauses as necessary to address risks associated with conflicts of interest and other considerations that may be unique to the executive agency;
"(4) to require executive agencies—
"(A) to establish or update as needed agency conflict of interest procedures to implement the revisions to the Federal Acquisition Regulation made under this section; and
"(B) to periodically assess and update such procedures as needed to address agency-specific conflict of interest issues; and
"(5) to update the procedures set forth in section 9.506 of the Federal Acquisition Regulation to permit contracting officers to take into consideration professional standards and procedures to prevent organizational conflicts of interest to which an offeror or contractor is subject.
"(b)
Deadline for Issuance of Standard Policy
Pub. L. 111–350, §6(f)(1), Jan. 4, 2011, 124 Stat. 3854, provided that: "The requirement in section 2303(b)(1) of title 41, United States Code, to issue a policy shall be done not later than 270 days after October 14, 2008."
Review of Federal Acquisition Regulation Relating to Conflicts of Interest
Pub. L. 110–417, [div. A], title VIII, §841(b), Oct. 14, 2008, 122 Stat. 4539, provided that:
"(1)
"(A) identify contracting methods, types and services that raise heightened concerns for potential personal and organizational conflicts of interest; and
"(B) determine whether revisions to the Federal Acquisition Regulation are necessary to—
"(i) address personal conflicts of interest by contractor employees with respect to functions other than those described in subsection (a) [now 41 U.S.C. 2303(b)]; or
"(ii) achieve sufficiently rigorous, comprehensive, and uniform government-wide policies to prevent and mitigate organizational conflicts of interest in Federal contracting.
"(2)
"(3)
§2304. Conflict of interest standards for consultants
(a)
(1) conflict of interest standards for persons who provide consulting services described in subsection (b); and
(2) procedures, including registration, certification, and enforcement requirements as may be appropriate, to promote compliance with the standards.
(b)
(1) advisory and assistance services provided to the Federal Government to the extent necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States;
(2) services related to support of the preparation or submission of bids and proposals for Federal contracts to the extent that inclusion of the services in the regulations is necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States; and
(3) other services related to Federal contracts as specified in the regulations prescribed under subsection (a) to the extent necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States.
(c)
(1)
(2)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3736.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2304(a) | 41:405b(a). | Pub. L. 100–463, title VIII, §8141, Oct. 1, 1988, 102 Stat. 2270–47. |
| 2304(b) | 41:405b(b). | |
| 2304(c) | 41:405b(d). | |
| 2304(d) | 41:405b(e). |
In this section, the text of 41:405b(c) is omitted as obsolete.
In subsection (a), before paragraph (1), the words "The Administrator shall prescribe under this division Government-wide regulations" are substituted for "Not later than 90 days after October 1, 1988, the Administrator of the Office of Federal Procurement Policy shall issue a policy, and not later than 180 days thereafter Government-wide regulations shall be issued under the Office of Federal Procurement Policy Act (41 U.S.C. 401 et seq.)" to eliminate obsolete words.
In subsection (b), before paragraph (1), the words "the following types of consulting services" are omitted as unnecessary.
In subsection (c)(2), the words "Director of National Intelligence" are substituted for "Director of Central Intelligence" because of section 1081(a) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458, 50 U.S.C. 401 note). The words "each January 1" are substituted for "no later than January 1, 1990, and annually thereafter to eliminate obsolete and unnecessary words. The words "exempted under paragraph (1)" are substituted for "exempted from the regulations required by subsection (a) of this section in accordance with the provisions of this subsection" to eliminate unnecessary words.
Editorial Notes
References in Text
Executive Order 12333, referred to in subsec. (c)(1), is set out as a note under section 3001 of Title 50, War and National Defense.
§2305. Authority of Director of Office of Management and Budget not affected
This division does not limit the authorities and responsibilities of the Director of the Office of Management and Budget in effect on December 1, 1983.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3737.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2305 | 41:405(h)(2). | Pub. L. 93–400, §6(h)(2), Aug. 30, 1974, 88 Stat. 797; Pub. L. 96–83, §4, Oct. 10, 1979, 93 Stat. 649; Pub. L. 98–191, §5, Dec. 1, 1983, 97 Stat. 1328. |
The words "in effect on December 1, 1983" are substituted for "current" for clarity.
§2306. Openness of meetings
The Administrator by regulation shall require that—
(1) formal meetings of the Office of Federal Procurement Policy, as designated by the Administrator, for developing procurement policies and regulations be open to the public; and
(2) public notice of each meeting be given not less than 10 days prior to the meeting.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3737.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2306 | 41:412(b). | Pub. L. 93–400, §14(b), Aug. 30, 1974, 88 Stat. 800; Pub. L. 96–83, §9, Oct. 10, 1979, 93 Stat. 652. |
§2307. Comptroller General's access to information
The Administrator and personnel in the Office of Federal Procurement Policy shall furnish information the Comptroller General may require to discharge the responsibilities of the Comptroller General. For this purpose, the Comptroller General or representatives of the Comptroller General shall have access to all books, documents, papers, and records of the Office of Federal Procurement Policy.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3737.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2307 | 41:412(a). | Pub. L. 93–400, §14(a), Aug. 30, 1974, 88 Stat. 800. |
Senate Revision Amendment
In text, "representatives of the Comptroller General" substituted for "his representatives" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010).
§2308. Modular contracting for information technology
(a)
(b)
(c)
(1) under the modular contracting process, an acquisition of a major system of information technology may be divided into several smaller acquisition increments that—
(A) are easier to manage individually than would be one comprehensive acquisition;
(B) address complex information technology objectives incrementally in order to enhance the likelihood of achieving workable solutions for attaining those objectives;
(C) provide for delivery, implementation, and testing of workable systems or solutions in discrete increments, each of which comprises a system or solution that is not dependent on a subsequent increment in order to perform its principal functions; and
(D) provide an opportunity for subsequent increments of the acquisition to take advantage of any evolution in technology or needs that occurs during conduct of the earlier increments;
(2) to the maximum extent practicable, a contract for an increment of an information technology acquisition should be awarded within 180 days after the solicitation is issued and, if the contract for that increment cannot be awarded within that period, the increment should be considered for cancellation; and
(3) the information technology provided for in a contract for acquisition of information technology should be delivered within 18 months after the solicitation resulting in award of the contract was issued.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3737.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2308 | 41:434. | Pub. L. 93–400, §38, formerly §35, as added Pub. L. 104–106, title LII, §5202(a), Feb. 10, 1996, 110 Stat. 690; renumbered §38, Pub. L. 104–201, title X, §1074(d)(1), Sept. 23, 1996, 110 Stat. 2660. |
§2309. Protection of constitutional rights of contractors
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3738.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2309 | 41:436. | Pub. L. 93–400, §40, formerly §39, as added Pub. L. 105–277, title III, §308(a), Oct. 21, 1998, 112 Stat. 2681–879; renumbered §40, Pub. L. 108–136, title XIV, §1431(d)(2), Nov. 24, 2003, 117 Stat. 1672. |
In subsection (a), the reference is to the Chemical Weapons Convention Implementation Act of 1998 rather than the Chemical Weapons Convention Implementation Act of 1997 to correct an error in the source provision.
Editorial Notes
References in Text
The Chemical Weapons Convention Implementation Act of 1998, referred to in subsec. (a), is Pub. L. 105–277, div. I, Oct. 21, 1998, 112 Stat. 2681–856, which is classified principally to chapter 75 (§6701 et seq.) of Title 22, Foreign Relations and Intercourse. For complete classification of this Act to the Code, see Short Title note set out under section 6701 of Title 22 and Tables.
§2310. Performance-based contracts or task orders for services to be treated as contracts for the procurement of commercial items
(a)
(1) the value of the contract or task order is estimated not to exceed $25,000,000;
(2) the contract or task order sets forth specifically each task to be performed and, for each task—
(A) defines the task in measurable, mission-related terms;
(B) identifies the specific end products or output to be achieved; and
(C) contains firm, fixed prices for specific tasks to be performed or outcomes to be achieved; and
(3) the source of the services provides similar services to the general public under terms and conditions similar to those offered to the Federal Government.
(b)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3738.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2310 | 41:437. | Pub. L. 93–400, §41, as added Pub. L. 108–136, title XIV, §1431(a), Nov. 24, 2003, 117 Stat. 1671. |
In subsection (c), the words "Committees on Homeland Security and Governmental Affairs" are substituted for "Committees on Governmental Affairs" on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004). The words "Committees on Oversight and Government Reform" are substituted for "Committees on Government Reform" on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
§2311. Enhanced transparency on interagency contracting and other transactions
The Director of the Office of Management and Budget shall direct appropriate revisions to the Federal Procurement Data System or any successor system to facilitate the collection of complete, timely, and reliable data on interagency contracting actions and on transactions other than contracts, grants, and cooperative agreements issued pursuant to section 4021 of title 10 or similar authorities. The Director of the Office of Management and Budget shall ensure that data, consistent with what is collected for contract actions, is obtained on—
(1) interagency contracting actions, including data at the task or delivery-order level; and
(2) other transactions, including the initial award and any subsequent modifications awarded or orders issued (other than transactions that are reported through the Federal Assistance Awards Data System).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3739; Pub. L. 117–81, div. A, title XVII, §1702(h)(11), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2311 | 41:405 note. | Pub. L. 110–417, [div. A], title VIII, §874(a), Oct. 14, 2008, 122 Stat. 4558. |
In the first sentence, the words "Not later than one year after the date of enactment of this Act" are omitted because of section 6(f) of the bill.
Editorial Notes
Amendments
2021—Pub. L. 117–81 substituted "section 4021" for "section 2371" in introductory provisions.
Statutory Notes and Related Subsidiaries
Deadline for Revisions in Federal Procurement Data System or Successor System
Pub. L. 111–350, §6(f)(2), Jan. 4, 2011, 124 Stat. 3855, provided that: "The requirement in section 2311 of title 41, United States Code, to direct appropriate revisions in the Federal Procurement Data System or any successor system shall be done not later than one year after October 14, 2008."
§2312. Contingency Contracting Corps
(a)
(b)
(c)
(d)
(1) in support of a contingency operation as defined in section 101(a)(13) of title 10; or
(2) to respond to an emergency or major disaster as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122).
(e)
(f)
(g)
(1) in the case of a member of the Armed Forces, out of funds available to the Armed Force concerned; and
(2) in the case of a Federal employee, out of funds available to the employing agency.
(h)
(1)
(2)
(i)
(1)
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3739.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2312 (except subsection (a)) | 41:440. | Pub. L. 93–400, §44, as added Pub. L. 110–417, [div. A], title VIII, §870(a), Oct. 14, 2008, 122 Stat. 4554. |
| 2312(a) | no source. |
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
§2313. Database for Federal agency contract and grant officers and suspension and debarment officials
(a)
(b)
(1) Any person awarded a Federal agency contract or grant in excess of $500,000, if any information described in subsection (c) exists with respect to the person.
(2) Any person awarded such other category or categories of Federal agency contract as the Federal Acquisition Regulation may provide, if any information described in subsection (c) exists with respect to the person.
(c)
(1) Each civil or criminal proceeding, or any administrative proceeding, in connection with the award or performance of a contract or grant with the Federal Government with respect to the person during the period to the extent that the proceeding results in the following dispositions:
(A) In a criminal proceeding, a conviction.
(B) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.
(C) In an administrative proceeding, a finding of fault and liability that results in—
(i) the payment of a monetary fine or penalty of $5,000 or more; or
(ii) the payment of a reimbursement, restitution, or damages in excess of $100,000.
(D) To the maximum extent practicable and consistent with applicable laws and regulations, in a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the person if the proceeding could have led to any of the outcomes specified in subparagraph (A), (B), or (C).
(E) In an administrative proceeding—
(i) a final determination of contractor fault by the Secretary of Defense pursuant to section 823(d) of the National Defense Authorization Act for Fiscal Year 2010 (10 U.S.C. 2302 note; Public Law 111–84); or
(ii) a substantiated allegation, pursuant to section 1704(b) of the National Defense Authorization Act for Fiscal Year 2013, that the contractor, a subcontractor, or an agent of the contractor or subcontractor engaged in any of the activities described in section 106(g) of the Trafficking Victims Protection Act of 2000 (22 U.S.C. 7104(g)).
(2) Each Federal contract and grant awarded to the person that was terminated in the period due to default.
(3) Each Federal suspension and debarment of the person.
(4) Each Federal administrative agreement entered into by the person and the Federal Government in the period to resolve a suspension or debarment proceeding.
(5) Each final finding by a Federal official in the period that the person has been determined not to be a responsible source under paragraph (3) or (4) of section 113 of this title.
(6) Other information that shall be provided for purposes of this section in the Federal Acquisition Regulation.
(7) To the maximum extent practicable, information similar to the information covered by paragraphs (1) to (4) in connection with the award or performance of a contract or grant with a State government.
(8) Whether the person is included on any of the following lists maintained by the Office of Foreign Assets Control of the Department of the Treasury:
(A) The specially designated nationals and blocked persons list (commonly known as the "SDN list").
(B) The sectoral sanctions identification list.
(C) The foreign sanctions evaders list.
(D) The list of persons sanctioned under the Iran Sanctions Act of 1996 (Public Law 104–172; 50 U.S.C. 1701 note) that do not appear on the SDN list (commonly known as the "Non-SDN Iranian Sanctions Act list").
(E) The list of foreign financial institutions subject to part 561 of title 31, Code of Federal Regulations.
(d)
(1)
(2)
(A) the timely and accurate input of information into the database;
(B) the timely notification of any covered person when information relevant to the person is entered into the database; and
(C) opportunities for any covered person to submit comments pertaining to information about the person for inclusion in the database.
(3)
(4)
(A)
(B)
(e)
(1)
(2)
(A)
(B)
(f)
(1) submit to the Administrator of General Services, in a manner determined appropriate by the Administrator of General Services, the information subject to inclusion in the database as listed in subsection (c) current as of the date of submittal of the information under this subsection; and
(2) update the information submitted under paragraph (1) on a semiannual basis.
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3740; Pub. L. 111–212, title III, §3010, July 29, 2010, 124 Stat. 2340; Pub. L. 111–383, div. A, title VIII, §834(d), Jan. 7, 2011, 124 Stat. 4279; Pub. L. 112–239, div. A, title VIII, §852, title XVII, §1704(d)(2), Jan. 2, 2013, 126 Stat. 1856, 2096; Pub. L. 113–291, div. A, title XII, §1270, Dec. 19, 2014, 128 Stat. 3587; Pub. L. 116–283, div. A, title VIII, §885, Jan. 1, 2021, 134 Stat. 3791.)
Amendments Not Shown in Text
This section was derived from section 417b of former Title 41, Public Contracts, which was amended by Pub. L. 111–212, title III, §3010, July 29, 2010, 124 Stat. 2340, and Pub. L. 111–383, div. A, title VIII, §834(d), Jan. 7, 2011, 124 Stat. 4279, prior to being repealed and reenacted as this section by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For applicability of those amendments to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 417b of former Title 41 was amended by adding at the end of subsec. (e)(1) the following: "In addition, the Administrator shall post all such information, excluding past performance reviews, on a publicly available Internet website." and by adding at the end of subsec. (c)(1) the following new subparagraph:
"(E) In an administrative proceeding, a final determination of contractor fault by the Secretary of Defense pursuant to section 823(d) of the National Defense Authorization Act for Fiscal Year 2010 (10 U.S.C. 2302 note)."
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 2313 | 41:417b. | Pub. L. 110–417, [div. A], title VIII, §872, Oct. 14, 2008, 122 Stat. 4555. |
In subsection (a), the words "not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill.
In subsection (c)(7), the word "practicable" is substituted for "practical" to correct an error in the law.
In subsection (f), the words "Not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall require" are substituted for "shall be amended to require" to reflect the permanence of the provision.
In subsection (f)(2), the words "the information submitted under paragraph (1)" are substituted for "such information" for clarity.
Editorial Notes
References in Text
Section 1704(b) of the National Defense Authorization Act for Fiscal Year 2013, referred to in subsec. (c)(1)(E)(ii), is section 1704(b) of Pub. L. 112–239, which is classified to section 7104b(b) of Title 22, Foreign Relations and Intercourse.
Amendments
2021—Subsec. (d)(3). Pub. L. 116–283, §885(1), inserted ", and an identification of any beneficial owner of such corporation," after "to the corporation".
Subsec. (d)(4). Pub. L. 116–283, §885(2), added par. (4).
2014—Subsec. (c)(8). Pub. L. 113–291 added par. (8).
2013—Subsec. (c)(1)(E). Pub. L. 112–239, §1704(d)(2), amended subpar. (E) generally. Prior to amendment, subpar. (E), as added by Pub. L. 111–383, §834(d), read as follows: "(E) In an administrative proceeding, a final determination of contractor fault by the Secretary of Defense pursuant to section 823(d) of the National Defense Authorization Act for Fiscal Year 2010 (10 U.S.C. 2302 note)." See Amendments Not Shown in Text note above.
Subsec. (d)(3). Pub. L. 112–239, §852, added par. (3).
Statutory Notes and Related Subsidiaries
Deadline for Establishing Database
Pub. L. 111–350, §6(f)(3), Jan. 4, 2011, 124 Stat. 3855, provided that: "The requirement in section 2313(a) of title 41, United States Code, to establish a database shall be done not later than one year after October 14, 2008."
Deadline for Amending Federal Acquisition Regulation
Pub. L. 111–350, §6(f)(4), Jan. 4, 2011, 124 Stat. 3855, provided that: "The Federal Acquisition Regulation shall be amended to meet the requirements of sections 2313(f), 3302(b) and (d), 4710(b), and 4711(b) of title 41, United States Code, not later than one year after October 14, 2008."
Division C—Procurement
Definitions
For additional definitions of terms used in this division, with certain exceptions, see section 102 of Title 40, Public Buildings, Property, and Works.
CHAPTER 31—GENERAL
Statutory Notes and Related Subsidiaries
Cost-Effectiveness Analysis of Equipment Rental
Pub. L. 115–254, div. B, title V, §555, Oct. 5, 2018, 132 Stat. 3381, as amended by Pub. L. 117–81, div. A, title XVII, §1702(i)(1), Dec. 27, 2021, 135 Stat. 2159, provided that:
"(a)
"(1)
"(2)
"(3)
"(4)
"(b)
"(c)
"(1)
"(2)
"(d)
"(1) when the President has issued an emergency declaration or a major disaster declaration pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.);
"(2) in other emergency situations if the agency head makes a determination that obtaining such equipment is necessary in order to protect human life or property; or
"(3) when otherwise authorized by law.
"(e)
"(f)
"(1)
"(2)
"(3)
"(4)
Uniform Contract Writing System Requirements
Pub. L. 112–239, div. A, title VIII, §862, Jan. 2, 2013, 126 Stat. 1859, provided that:
"(a)
"(1) establish uniform data standards, internal control requirements, independent verification and validation requirements, and business process rules for processing procurement requests, contracts, receipts, and invoices by the Department of Defense or other executive agencies, as applicable;
"(2) establish and maintain one or more approved electronic contract writing systems that conform with the standards, requirements, and rules established pursuant to paragraph (1); and
"(3) require the use of electronic contract writing systems approved in accordance with paragraph (2) for all contracts entered into by the Department of Defense or other executive agencies, as applicable.
"(b)
"(1) The Secretary of Defense, with respect to the Department of Defense and the military departments.
"(2) The Administrator for Federal Procurement Policy, with respect to the executive agencies other than the Department of Defense and the military departments.
"(c)
"(d)
"(e)
"(1) describe the standards, requirements, and rules established pursuant to subsection (a)(1);
"(2) identify the electronic contract writing systems approved pursuant to subsection (a)(2) and, if multiple systems are approved, explain why the use of such multiple systems is the most efficient and effective approach to meet the contract writing needs of the Federal Government; and
"(3) provide the schedule for phasing in the use of approved electronic contract writing systems in accordance with subsections (a)(3) and (d).
"(f)
"(1) The term 'appropriate committees of Congress' means—
"(A) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on Appropriations of the Senate; and
"(B) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability], and the Committee on Appropriations of the House of Representatives.
"(2) The term 'executive agency' has the meaning given that term in section 133 of title 41, United States Code."
§3101. Applicability
(a)
(b)
(1)
(A)
(B)
(2)
(c)
(1)
(A) to the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration; or
(B) except as provided in paragraph (2), when this division is made inapplicable pursuant to law.
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3742.)
In subsection (c)(1)(B), the words "except as provided in paragraph (2)" are added for clarity. The words "section 113(e) of title 40 or any other" are omitted as unnecessary.
Executive Documents
Ex. Ord. No. 13005. Empowerment Contracting
Ex. Ord. No. 13005, May 21, 1996, 61 F.R. 26069, provided:
In order to promote economy and efficiency in Federal procurement, it is necessary to secure broad-based competition for Federal contracts. This broad competition is best achieved where there is an expansive pool of potential contractors capable of producing quality goods and services at competitive prices. A great and largely untapped opportunity for expanding the pool of such contractors can be found in this Nation's economically distressed communities.
Fostering growth of Federal contractors in economically distressed communities and ensuring that those contractors become viable businesses for the long term will promote economy and efficiency in Federal procurement and help to empower those communities. Fostering growth of long-term viable contractors will be promoted by offering appropriate incentives to qualified businesses.
Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States, including section 486(a) [now 121(a)] of title 40, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
(a) monitor the implementation and operation of the policies and procedures developed in accordance with this order;
(b) develop a process to ensure the proper administration of the program and to reduce the potential for fraud by the intended beneficiaries of the program;
(c) develop principles and a process to evaluate the effectiveness of the policies and procedures developed in accordance with this order; and
(d) by December 1 of each year, issue a report to the President on the status and effectiveness of the program.
(a) issue rules, regulations, and guidelines necessary to implement this order, including a requirement for the periodic review of the eligibility of qualified businesses and distressed areas;
(b) draft all rules, regulations, and guidelines necessary to implement this order within 90 days of the date of this order; and
(c) ensure that all policies and procedures and all rules, regulations, and guidelines adopted and implemented in accordance with this order minimize the administrative burden on affected agencies and the procurement process.
(a) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10).
(b) "Area of general economic distress" shall be defined, for all urban and rural communities, as any census tract that has a poverty rate of at least 20 percent or any designated Federal Empowerment Zone, Supplemental Empowerment Zone, Enhanced Enterprise Community, or Enterprise Community. In addition, the Secretary may designate as an area of general economic distress any additional rural or Indian reservation area after considering the following factors:
(1) Unemployment rate;
(2) Degree of poverty;
(3) Extent of outmigration; and
(4) Rate of business formation and rate of business growth.
(c) "Qualified large business" means a large for-profit or not-for-profit trade or business that (1) employs a significant number of residents from the area of general economic distress; and (2) either has a significant physical presence in the area of general economic distress or has a direct impact on generating significant economic activity in the area of general economic distress.
(d) "Qualified small business" means a small for-profit or not-for-profit trade or business that (1) employs a significant number of residents from the area of general economic distress; (2) has a significant physical presence in the area of general economic distress; or (3) has a direct impact on generating significant economic activity in the area of general economic distress.
(e) "Secretary" means the Secretary of Commerce.
William J. Clinton.
Ex. Ord. No. 13627. Strengthening Protections Against Trafficking in Persons in Federal Contracts
Ex. Ord. No. 13627, Sept. 25, 2012, 77 F.R. 60029, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act (40 U.S.C. 101 et seq.) and the Trafficking Victims Protection Act of 2000, as amended (TVPA) (Public Law 106–386, Division A), and in order to strengthen protections against trafficking in persons in Federal contracting, it is hereby ordered as follows:
The United States has long had a zero-tolerance policy regarding Government employees and contractor personnel engaging in any form of this criminal behavior. As the largest single purchaser of goods and services in the world, the United States Government bears a responsibility to ensure that taxpayer dollars do not contribute to trafficking in persons. By providing our Government workforce with additional tools and training to apply and enforce existing policy, and by providing additional clarity to Government contractors and subcontractors on the steps necessary to fully comply with that policy, this order will help to protect vulnerable individuals as contractors and subcontractors perform vital services and manufacture the goods procured by the United States.
In addition, the improved safeguards provided by this order to strengthen compliance with anti-trafficking laws will promote economy and efficiency in Government procurement. These safeguards, which have been largely modeled on successful practices in the private sector, will increase stability, productivity, and certainty in Federal contracting by avoiding the disruption and disarray caused by the use of trafficked labor and resulting investigative and enforcement actions.
(1) strengthen the efficacy of the Government's zero-tolerance policy on trafficking in persons by Federal contractors and subcontractors in solicitations, contracts, and subcontracts for supplies or services (including construction and commercial items), by:
(A) expressly prohibiting Federal contractors, contractor employees, subcontractors, and subcontractor employees from engaging in any of the following types of trafficking-related activities:
(i) using misleading or fraudulent recruitment practices during the recruitment of employees, such as failing to disclose basic information or making material misrepresentations regarding the key terms and conditions of employment, including wages and fringe benefits, the location of work, living conditions and housing (if employer provided or arranged), any significant costs to be charged to the employee, and, if applicable, the hazardous nature of the work;
(ii) charging employees recruitment fees;
(iii) destroying, concealing, confiscating, or otherwise denying access by an employee to the employee's identity documents, such as passports or drivers' licenses; and
(iv) for portions of contracts and subcontracts:
(I) performed outside the United States, failing to pay return transportation costs upon the end of employment, for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working on a U.S. Government contract or subcontract;
(II) not covered by subsection (a)(1)(A)(iv)(I) of this section, failing to pay return transportation costs upon the end of employment, for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working on a U.S. Government contract or subcontract, if the payment of such costs is required under existing temporary worker programs or pursuant to a written agreement with the employee; provided, however
(III) that the requirements of subsections (a)(1)(A)(iv)(I) and (II) shall not apply to:
(aa) an employee who is legally permitted to remain in the country of employment and who chooses to do so; or
(bb) an employee who is a victim of trafficking and is seeking victim services or legal redress in the country of employment, or an employee who is a witness in a trafficking-related enforcement action;
(v) other specific activities that the FAR Council identifies as directly supporting or promoting trafficking in persons, the procurement of commercial sex acts, or the use of forced labor in the performance of the contract or subcontract;
(B) requiring contractors and their subcontractors, by contract clause, to agree to cooperate fully in providing reasonable access to allow contracting agencies and other responsible enforcement agencies to conduct audits, investigations, or other actions to ascertain compliance with the TVPA, this order, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor; and
(C) requiring contracting officers to notify, in accordance with agency procedures, the agency's Inspector General, the agency official responsible for initiating suspension or debarment actions, and law enforcement, if appropriate, if they become aware of any activities that would justify termination under section 106(g) of the TVPA, 22 U.S.C. 7104(g), or are inconsistent with the requirements of this order or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor, and further requiring that the agency official responsible for initiating suspension and debarment actions consider whether suspension or debarment is necessary in order to protect the Government's interest;
(2) except as provided in subsection (a)(3) of this section, ensure that provisions in solicitations and clauses in contracts and subcontracts, where the estimated value of the supplies acquired or services required to be performed outside the United States exceeds $500,000, include the following requirements pertaining to the portion of the contract or subcontract performed outside the United States:
(A) that each such contractor and subcontractor maintain a compliance plan during the performance of the contract or subcontract that is appropriate for the size and complexity of the contract or subcontract and the nature and scope of the activities performed, including the risk that the contract or subcontract will involve services or supplies susceptible to trafficking. The compliance plan shall be provided to the contracting officer upon request, and relevant contents of the plan shall be posted no later than the initiation of contract performance at the workplace and on the contractor or subcontractor's Web site (if one is maintained), and shall, at a minimum, include:
(i) an awareness program to inform employees about:
(I) the policy of ensuring that employees do not engage in trafficking in persons or related activities, including those specified in subsection (a)(1)(A) of this section, the procurement of commercial sex acts, or the use of forced labor; and
(II) the actions that will be taken against employees for violation of such policy;
(ii) a process for employees to report, without fear of retaliation, any activity that would justify termination under section 106(g) of the TVPA, or is inconsistent with the requirements of this order, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor;
(iii) a recruitment and wage plan that only permits the use of recruitment companies with trained employees, prohibits charging recruitment fees to the employee, and ensures that wages meet applicable host country legal requirements or explains any variance;
(iv) a housing plan, if the contractor or subcontractor intends to provide or arrange housing, that ensures that the housing meets host country housing and safety standards or explains any variance; and
(v) procedures to prevent subcontractors at any tier from engaging in trafficking in persons, including those trafficking-related activities described in subsection (a)(1)(A) of this section, and to monitor, detect, and terminate any subcontractors or subcontractor employees that have engaged in such activities; and
(B) that each such contractor and subcontractor shall certify, prior to receiving an award and annually thereafter during the term of the contract or subcontract, that:
(i) it has the compliance plan referred to in subsection (a)(2)(A) of this section in place to prevent trafficking-related activities described in section 106(g) of the TVPA and this order; and
(ii) either, to the best of its knowledge and belief, neither it nor any of its subcontractors has engaged in any such activities; or, if abuses have been found, the contractor or subcontractor has taken the appropriate remedial and referral actions;
(3) specify that the requirements in subsections (a)(2)(A) and (B) of this section shall not apply with respect to contracts or subcontracts for commercially available off-the-shelf items.
(b) Not later than 1 year after the date of this order, the member agencies of the President's Interagency Task Force to Monitor and Combat Trafficking in Persons (PITF), established pursuant to section 105 of the TVPA, 22 U.S.C. 7103, shall jointly establish a process for evaluating and identifying, for Federal contracts and subcontracts performed substantially within the United States, whether there are industries or sectors with a history (or where there is current evidence) of trafficking-related or forced labor activities described in section 106(g) of the TVPA, in subsection (a)(1)(A) of this section, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor. Where the PITF has identified such industries or sectors, it shall notify agencies of these designations, and individual agencies shall, in consultation with the Office of Federal Procurement Policy of the Office of Management and Budget, adopt and publish appropriate safeguards, guidance, and compliance assistance to prevent trafficking and forced labor in Federal contracting in these identified areas.
(1) in consultation with appropriate management councils, such as the Chief Acquisition Officers Council, provide guidance to agencies on developing appropriate internal procedures and controls for awarding and administering Federal contracts to improve monitoring of and compliance with actions to prevent trafficking in persons, consistent with section 106 of the TVPA, including the development of methods to track the number of trafficking violations reported and remedies applied; and
(2) in consultation with the Federal Acquisition Institute and appropriate management councils, such as the Chief Acquisition Officers Council:
(A) develop methods to track the number of Federal employees trained; and
(B) implement training requirements to ensure that the Federal acquisition workforce is trained on the policies and responsibilities for combating trafficking, including on:
(i) applicable laws, regulations, and policies; and
(ii) internal controls and oversight procedures implemented by the agency, including enforcement procedures available to the agency to investigate, manage, and mitigate contractor and subcontractor trafficking violations.
(b) The member agencies of PITF shall jointly facilitate the sharing of information that may be used by acquisition, program, and other offices within agencies to evaluate where the risk of trafficking in persons may be heightened based on the nature of the work to be performed, the place of performance, and any other relevant considerations.
(1) the authority granted by law to an executive department, agency, or the head thereof; or
(2) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Executive Order No. 13673
Ex. Ord. No. 13673, July 31, 2014, 79 F.R. 45309, as amended by Ex. Ord. No. 13683, §3, Dec. 11, 2014, 79 F.R. 75042; Ex. Ord. No. 13738, Aug. 23, 2016, 81 F.R. 58807, which related to compliance with labor laws by Federal contractors, was revoked by Ex. Ord. No. 13782, §1, Mar. 27, 2017, 82 F.R. 15607, set out below.
Ex. Ord. No. 13782. Revocation of Federal Contracting Executive Orders
Ex. Ord. No. 13782, Mar. 27, 2017, 82 F.R. 15607, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
Government Contracting
Memorandum of President of the United States, Mar. 4, 2009, 74 F.R. 9755, provided:
Memorandum for the Heads of Executive Departments and Agencies
The Federal Government has an overriding obligation to American taxpayers. It should perform its functions efficiently and effectively while ensuring that its actions result in the best value for the taxpayers.
Since 2001, spending on Government contracts has more than doubled, reaching over $500 billion in 2008. During this same period, there has been a significant increase in the dollars awarded without full and open competition and an increase in the dollars obligated through cost-reimbursement contracts. Between fiscal years 2000 and 2008, for example, dollars obligated under cost-reimbursement contracts nearly doubled, from $71 billion in 2000 to $135 billion in 2008. Reversing these trends away from full and open competition and toward cost-reimbursement contracts could result in savings of billions of dollars each year for the American taxpayer.
Excessive reliance by executive agencies on sole-source contracts (or contracts with a limited number of sources) and cost-reimbursement contracts creates a risk that taxpayer funds will be spent on contracts that are wasteful, inefficient, subject to misuse, or otherwise not well designed to serve the needs of the Federal Government or the interests of the American taxpayer. Reports by agency Inspectors General, the Government Accountability Office (GAO), and other independent reviewing bodies have shown that noncompetitive and cost-reimbursement contracts have been misused, resulting in wasted taxpayer resources, poor contractor performance, and inadequate accountability for results.
When awarding Government contracts, the Federal Government must strive for an open and competitive process. However, executive agencies must have the flexibility to tailor contracts to carry out their missions and achieve the policy goals of the Government. In certain exigent circumstances, agencies may need to consider whether a competitive process will not accomplish the agency's mission. In such cases, the agency must ensure that the risks associated with noncompetitive contracts are minimized.
Moreover, it is essential that the Federal Government have the capacity to carry out robust and thorough management and oversight of its contracts in order to achieve programmatic goals, avoid significant overcharges, and curb wasteful spending. A GAO study last year of 95 major defense acquisitions projects found cost overruns of 26 percent, totaling $295 billion over the life of the projects. Improved contract oversight could reduce such sums significantly.
Government outsourcing for services also raises special concerns. For decades, the Federal Government has relied on the private sector for necessary commercial services used by the Government, such as transportation, food, and maintenance. Office of Management and Budget Circular A–76, first issued in 1966, was based on the reasonable premise that while inherently governmental activities should be performed by Government employees, taxpayers may receive more value for their dollars if non-inherently governmental activities that can be provided commercially are subject to the forces of competition.
However, the line between inherently governmental activities that should not be outsourced and commercial activities that may be subject to private sector competition has been blurred and inadequately defined. As a result, contractors may be performing inherently governmental functions. Agencies and departments must operate under clear rules prescribing when outsourcing is and is not appropriate.
It is the policy of the Federal Government that executive agencies shall not engage in noncompetitive contracts except in those circumstances where their use can be fully justified and where appropriate safeguards have been put in place to protect the taxpayer. In addition, there shall be a preference for fixed-price type contracts. Cost-reimbursement contracts shall be used only when circumstances do not allow the agency to define its requirements sufficiently to allow for a fixed-price type contract. Moreover, the Federal Government shall ensure that taxpayer dollars are not spent on contracts that are wasteful, inefficient, subject to misuse, or otherwise not well designed to serve the Federal Government's needs and to manage the risk associated with the goods and services being procured. The Federal Government must have sufficient capacity to manage and oversee the contracting process from start to finish, so as to ensure that taxpayer funds are spent wisely and are not subject to excessive risk. Finally, the Federal Government must ensure that those functions that are inherently governmental in nature are performed by executive agencies and are not outsourced.
I hereby direct the Director of the Office of Management and Budget (OMB), in collaboration with the Secretary of Defense, the Administrator of the National Aeronautics and Space Administration, the Administrator of General Services, the Director of the Office of Personnel Management, and the heads of such other agencies as the Director of OMB determines to be appropriate, and with the participation of appropriate management councils and program management officials, to develop and issue by July 1, 2009, Government-wide guidance to assist agencies in reviewing, and creating processes for ongoing review of, existing contracts in order to identify contracts that are wasteful, inefficient, or not otherwise likely to meet the agency's needs, and to formulate appropriate corrective action in a timely manner. Such corrective action may include modifying or canceling such contracts in a manner and to the extent consistent with applicable laws, regulations, and policy.
I further direct the Director of OMB, in collaboration with the aforementioned officials and councils, and with input from the public, to develop and issue by September 30, 2009, Government-wide guidance to:
(1) govern the appropriate use and oversight of sole-source and other types of noncompetitive contracts and to maximize the use of full and open competition and other competitive procurement processes;
(2) govern the appropriate use and oversight of all contract types, in full consideration of the agency's needs, and to minimize risk and maximize the value of Government contracts generally, consistent with the regulations to be promulgated pursuant to section 864 of Public Law 110–417;
(3) assist agencies in assessing the capacity and ability of the Federal acquisition workforce to develop, manage, and oversee acquisitions appropriately; and
(4) clarify when governmental outsourcing for services is and is not appropriate, consistent with section 321 of Public Law 110–417 (31 U.S.C. 501 note).
Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of OMB is hereby authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
§3102. Delegation and assignment of powers, functions, and responsibilities
(a)
(b)
(1) the head of an executive agency may delegate functions and assign responsibilities relating to procurement to any officer or employee within the agency;
(2) the heads of 2 or more executive agencies, consistent with section 1535 of title 31 and regulations prescribed under section 1074 of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 31 U.S.C. 1535 note), may by agreement delegate procurement functions and assign procurement responsibilities from one executive agency to another of those executive agencies or to an officer or civilian employee of another of those executive agencies; and
(3) the heads of 2 or more executive agencies may establish joint or combined offices to exercise procurement functions and responsibilities.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3743.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3102 | 41:261. | June 30, 1949, ch. 288, title III, §311, as added Pub. L. 103–355, title I, §1552, Oct. 13, 1994, 108 Stat. 3299. |
§3103. Acquisition programs
(a)
(b)
(1)
(2)
(c)
(1) determine whether there is a continuing need for programs that are significantly behind schedule, over budget, or not in compliance with performance or capability requirements; and
(2) identify suitable actions to be taken, including termination, with respect to those programs.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3743.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3103 | 41:263. | June 30, 1949, ch. 288, title III, §313, as added Pub. L. 103–355, title V, §5051(a), Oct. 13, 1994, 108 Stat. 3351; Pub. L. 105–85, div. A, title VIII, §851(a), Nov. 18, 1997, 111 Stat. 1851. |
§3104. Small business concerns
It is the policy of Congress that a fair proportion of the total purchases and contracts for property and services for the Federal Government shall be placed with small business concerns.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3744.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3104 | 41:252(b). | June 30, 1949, ch. 288, title III, §302(b), 63 Stat. 393; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 98–369, div. B, title VII, §2714(a)(1)(A), July 18, 1984, 98 Stat. 1184. |
The word "declared" is omitted as unnecessary.
§3105. New contracts and grants and merit-based selection procedures
(a)
(1) an executive agency should not be required by legislation to award—
(A) a new contract to a specific non-Federal Government entity; or
(B) a new grant for research, development, test, or evaluation to a non-Federal Government entity; and
(2) a program, project, or technology identified in legislation be procured or awarded through merit-based selection procedures.
(b)
(1) a contract is a new contract unless the work provided for in the contract is a continuation of the work performed by the specified entity under a prior contract; and
(2) a grant is a new grant unless the work provided for in the grant is a continuation of the work performed by the specified entity under a prior grant.
(c)
(1) refers to this section;
(2) identifies the particular non-Federal Government entity involved; and
(3) states that the award to that entity is required by the provision of law in contravention of the policy set forth in subsection (a).
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3744.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3105(a) | 41:253(i)(1). | June 30, 1949, ch. 288, title III, §303(i), as added Pub. L. 103–355, title VII, §7203(b)(1)(B), Oct. 13, 1994, 108 Stat. 3380; Pub. L. 104–106, title XLI, §4101(b)(1), Feb. 10, 1996, 110 Stat. 642. |
| 41:266(a). | June 30, 1949, ch. 288, title III, §316, as added Pub. L. 103–355, title VII, §7203(b)(2), Oct. 13, 1994, 108 Stat. 3381; Pub. L. 104–106, title XLIII, §4321(e)(9), Feb. 10, 1996, 110 Stat. 675. | |
| 3105(b) | 41:253(i)(3). | |
| 41:266(c). | ||
| 3105(c) | 41:253(i)(2). | |
| 41:266(b). | ||
| 3105(d) | 41:253(i)(4). | |
| 41:266(d). |
§3106. Erection, repair, or furnishing of public buildings and improvements not authorized, and certain contracts not permitted, by this division
This division does not—
(1) authorize the erection, repair, or furnishing of a public building or public improvement; or
(2) permit a contract for the construction or repair of a building, road, sidewalk, sewer, main, or similar item using procedures other than sealed-bid procedures under section 3301(b)(1)(A) of this title if the conditions set forth in section 3301(b)(1)(A) of this title apply or the contract is to be performed outside the United States.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3745.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3106 | 41:252(c)(1). | June 30, 1949, ch. 288, title III, §302(c)(1), 63 Stat. 393; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §§2, 3, Aug. 28, 1958, 72 Stat. 966; Pub. L. 89–343, §2, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 89–348, §1(2), Nov. 8, 1965, 79 Stat. 1310; Pub. L. 90–268, §4, Mar. 16, 1968, 82 Stat. 50; Pub. L. 93–356, §3, July 25, 1974, 88 Stat. 390; Pub. L. 98–191, §9(a)(1), Dec. 1, 1983, 97 Stat. 1331; Pub. L. 98–369, div. B, title VII, §2714(a)(1)(B), July 18, 1984, 98 Stat. 1184. |
In paragraph (1), the words "but such authorization shall be required in the same manner as heretofore" are omitted as unnecessary.
CHAPTER 33—PLANNING AND SOLICITATION
Editorial Notes
Amendments
2018—Pub. L. 115–232, div. A, title VIII, §836(b)(10)(B)(ii), Aug. 13, 2018, 132 Stat. 1863, substituted "Preference for commercial products and commercial services" for "Preference for commercial items" in item 3307.
2013—Pub. L. 112–239, div. A, title VIII, §851(a)(2), Jan. 2, 2013, 126 Stat. 1855, added item 3312.
§3301. Full and open competition
(a)
(1) obtain full and open competition through the use of competitive procedures in accordance with the requirements of this division and the Federal Acquisition Regulation; and
(2) use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.
(b)
(1)
(A) solicit sealed bids if—
(i) time permits the solicitation, submission, and evaluation of sealed bids;
(ii) the award will be made on the basis of price and other price-related factors;
(iii) it is not necessary to conduct discussions with the responding sources about their bids; and
(iv) there is a reasonable expectation of receiving more than one sealed bid; or
(B) request competitive proposals if sealed bids are not appropriate under subparagraph (A).
(2)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3745.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3301(a) | 41:253(a)(1). | June 30, 1949, ch. 288, title III, §303(a), 63 Stat. 395; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 90–268, §2, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, title VII, §2711(a)(1), July 18, 1984, 98 Stat. 1175; Pub. L. 103–355, title I, §1051(1), Oct. 13, 1994, 108 Stat. 3260. |
| 3301(b)(1) | 41:253(a)(2). | |
| 3301(b)(2) | 41:252(c)(2). | June 30, 1949, ch. 288, title III, §302(c)(2), as added Pub. L. 98–369, title VII, §2714(a)(1)(B), July 18, 1984, 98 Stat. 1184. |
| 3301(c) | 41:253(h). | June 30, 1949, ch. 288, title III, §303(h), as added Pub. L. 104–106, title XLI, §4101(b)(2), Feb. 10, 1996, 110 Stat. 642. |
Editorial Notes
References in Text
Section 204 of title 23, referred to in subsec. (b)(2), was repealed and a new section 204 enacted by Pub. L. 112–141, div. A, title I, §1119(a), July 6, 2012, 126 Stat. 473, 489.
Statutory Notes and Related Subsidiaries
Regulations
Pub. L. 113–291, div. A, title VIII, §836, Dec. 19, 2014, 128 Stat. 3449, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 19, 2014], the Administrator for Federal Procurement Policy shall prescribe regulations providing that when the Federal Government makes a purchase of services and supplies offered under the Federal Strategic Sourcing Initiative (managed by the Office of Federal Procurement Policy) but such Initiative is not used, the contract file for the purchase shall include a brief analysis of the comparative value, including price and nonprice factors, between the services and supplies offered under such Initiative and services and supplies offered under the source or sources used for the purchase."
Construction
Pub. L. 98–369, div. B, title VII, §2711(c), July 18, 1984, 98 Stat. 1181, provided that: "The amendments made by this section [see Tables for classification] do not supersede or affect the provisions of section 8(a) of the Small Business Act (15 U.S.C. 637(a))."
Pilot Programs for Authority To Acquire Innovative Commercial Items Using General Solicitation Competitive Procedures
Pub. L. 114–328, div. A, title VIII, §880, Dec. 23, 2016, 130 Stat. 2313, as amended by Pub. L. 115–232, div. A, title VIII, §836(f)(10), Aug. 13, 2018, 132 Stat. 1872; Pub. L. 117–263, div. G, title LXXII, §7227(a), Dec. 23, 2022, 136 Stat. 3675, provided that:
"(a)
"(1)
"(2)
"(A) The Secretary of Homeland Security.
"(B) The Administrator of General Services.
"(3)
"(A) The Department of Homeland Security.
"(B) The General Services Administration.
"(b)
"(c)
"(d)
"(e)
"(1)
"(2)
"(A) An assessment of the impact of the pilot program on competition.
"(B) A comparison of acquisition timelines for—
"(i) procurements made using the pilot program; and
"(ii) procurements made using other competitive procedures that do not use general solicitations.
"(C) A recommendation on whether the authority for the pilot program should be made permanent.
"(3)
"(f)
"(1) the term 'commercial product'—
"(A) has the meaning given the term 'commercial item' in section 2.101 of the Federal Acquisition Regulation; and
"(B) includes a commercial product or a commercial service, as defined in sections 103 and 103a, respectively, of title 41, United States Code; and
"(2) the term 'innovative' means—
"(A) any new technology, process, or method, including research and development; or
"(B) any new application of an existing technology, process, or method.
"(g)
Governmentwide Software Purchasing Program
Pub. L. 113–291, div. A, title VIII, §837, Dec. 19, 2014, 128 Stat. 3450, provided that:
"(a)
"(b)
1 See References in Text note below.
§3302. Requirements for purchase of property and services pursuant to multiple award contracts
(a)
(1)
(2)
(3)
(A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 3012(3) of title 10;
(B) a multiple award task order contract that is entered into under the authority of chapter 245 of title 10 or chapter 41 of this title; and
(C) any other indefinite delivery, indefinite quantity contract that is entered into by the head of an executive agency with 2 or more sources pursuant to the same solicitation.
(4)
(b)
(c)
(1)
(A) waives the requirement on the basis of a determination that—
(i) one of the circumstances described in paragraphs (1) to (4) of section 4106(c) of this title or section 3406(c) of title 10 applies to the individual purchase; or
(ii) a law expressly authorizes or requires that the purchase be made from a specified source; and
(B) justifies the determination in writing.
(2)
(A) require fair notice of the intent to make that purchase (including a description of the work to be performed and the basis on which the selection will be made) to be provided to all contractors offering the property or services under the multiple award contract; and
(B) afford all contractors responding to the notice a fair opportunity to make an offer and have that offer fairly considered by the official making the purchase.
(3)
(A)
(B)
(i) offers were received from at least 3 qualified contractors; or
(ii) a contracting officer of the executive agency determines in writing that no additional qualified contractors were able to be identified despite reasonable efforts to do so.
(d)
(1)
(A) publish on FedBizOpps notice of all sole source task or delivery orders in excess of the simplified acquisition threshold that are placed against multiple award contracts not later than 14 days after the orders are placed, except in the event of extraordinary circumstances or classified orders; and
(B) disclose the determination required by subsection (c)(1) related to sole source task or delivery orders in excess of the simplified acquisition threshold placed against multiple award contracts through the same mechanism and to the same extent as the disclosure of documents containing a justification and approval required by section 3204(e)(1) of title 10 and section 3304(e)(1) of this title, except in the event of extraordinary circumstances or classified orders.
(2)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3746; Pub. L. 111–383, div. A, title X, §1075(e)(14), Jan. 7, 2011, 124 Stat. 4375; Pub. L. 116–92, div. A, title VIII, §893(b), Dec. 20, 2019, 133 Stat. 1540; Pub. L. 117–81, div. A, title XVII, §1702(h)(12), Dec. 27, 2021, 135 Stat. 2158.)
Amendment Not Shown in Text
This section was derived from Pub. L. 110–417, [div. A], title VIII, §863(a)–(e), Oct. 14, 2008, 122 Stat. 4547, which was set out as a note under section 253h of former Title 41, Public Contracts, prior to being repealed and reenacted by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. Section 863(b)(3)(A) of Pub. L. 110–417 was restated as subsec. (c)(3)(A) of this section and subsequently amended by Pub. L. 111–383, div. A, title X, §1075(e)(14), Jan. 7, 2011, 124 Stat. 4375. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 863(b)(3)(A) of Pub. L. 110–417 was amended by striking "subsection (d)(2)(A)" and inserting "subsection (d)(3)(A)". Such reference did not appear in the text of subsec. (c)(3)(A) as enacted. See Historical and Revision Notes below.
Repeal of Subsection (f)
Pub. L. 116–92, div. A, title VIII, §893(b)(2), Dec. 20, 2019, 133 Stat. 1540 provided that, effective Dec. 31, 2025, subsection (f) of this section is repealed. See 2019 Amendment note below.
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3302 | 41:253h note. | Pub. L. 110–417, [div. A], title VIII, §863(a)–(e), Oct. 14, 2008, 122 Stat. 4547. |
In subsection (b), the words "Not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall require" are substituted for "shall be amended to require" to reflect the permanence of the provision.
In subsection (c)(2)(A), the words "except as provided in paragraph (3)" are omitted as unnecessary.
In subsection (c)(3)(A), "subsection (a)(3)(A)" is substituted for "subsection (d)(2)(A)" for consistency in the revised title and to correct an error in the law.
In subsection (d)(1), the words "Not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall require" are substituted for "shall be amended to require" to reflect the permanence of the provision.
Editorial Notes
Amendments
2021—Subsec. (a)(3). Pub. L. 117–81, §1702(h)(12)(A), substituted "section 3012(3)" for "section 2302(2)(C)" in subpar. (A) and "chapter 245 of title 10" for "sections 2304a to 2304d of title 10," in subpar. (B).
Subsec. (c)(1)(A)(i). Pub. L. 117–81, §1702(h)(12)(B), substituted "section 3406(c)" for "section 2304c(b)".
Subsec. (d)(1)(B). Pub. L. 117–81, §1702(h)(12)(C), substituted "section 3204(e)(1)" for "section 2304(f)(1)".
2019—Subsec. (f). Pub. L. 116–92, §893(b)(2), struck out subsec. (f). Text read as follows: "The regulations required by subsection (b) shall not apply to individual purchases for commercial leasing services that are made on a no cost basis and made under a multiple award contract awarded in accordance with the requirements for full and open competition."
Pub. L. 116–92, §893(b)(1), added subsec. (f).
Statutory Notes and Related Subsidiaries
Effective Date of 2019 Amendment
Pub. L. 116–92, div. A, title VIII, §893(b)(2), Dec. 20, 2019, 133 Stat. 1540, provided that the amendment made by section 893(b)(2) is effective Dec. 31, 2025.
Individual Acquisition for Commercial Leasing Services
Pub. L. 115–232, div. A, title VIII, §877, Aug. 13, 2018, 132 Stat. 1907, which related to individual acquisition for commercial leasing services not construed as purchase of property or services under certain conditions, was repealed by Pub. L. 116–92, div. A, title VIII, §893(a), Dec. 20, 2019, 133 Stat. 1540.
§3303. Exclusion of particular source or restriction of solicitation to small business concerns
(a)
(1)
(A) increase or maintain competition and likely result in reduced overall cost for the procurement, or for an anticipated procurement, of the property or services;
(B) be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in case of a national emergency or industrial mobilization;
(C) be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a Federally funded research and development center;
(D) ensure the continuous availability of a reliable source of supply of the property or service;
(E) satisfy projected needs for the property or service determined on the basis of a history of high demand for the property or service; or
(F) satisfy a critical need for medical, safety, or emergency supplies.
(2)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3747.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3303 | 41:253(b). | June 30, 1949, ch. 288, title III, §303(b), 63 Stat. 395; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 90–268, §2, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, title VII, §2711(a)(1), July 18, 1984, 98 Stat. 1175; Pub. L. 98–577, title V, §504(a)(1), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1052, Oct. 13, 1994, 108 Stat. 3260. |
§3304. Use of noncompetitive procedures
(a)
(1) the property or services needed by the executive agency are available from only one responsible source and no other type of property or services will satisfy the needs of the executive agency;
(2) the executive agency's need for the property or services is of such an unusual and compelling urgency that the Federal Government would be seriously injured unless the executive agency is permitted to limit the number of sources from which it solicits bids or proposals;
(3) it is necessary to award the contract to a particular source—
(A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization;
(B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a Federally funded research and development center;
(C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before a court, administrative tribunal, or agency, whether or not the expert is expected to testify; or
(D) to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify;
(4) the terms of an international agreement or treaty between the Federal Government and a foreign government or an international organization, or the written directions of a foreign government reimbursing the executive agency for the cost of the procurement of the property or services for that government, have the effect of requiring the use of procedures other than competitive procedures;
(5) subject to section 3105 of this title, a statute expressly authorizes or requires that the procurement be made through another executive agency or from a specified source, or the agency's need is for a brand-name commercial product for authorized resale;
(6) the disclosure of the executive agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or
(7) the head of the executive agency (who may not delegate the authority under this paragraph)—
(A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned; and
(B) notifies Congress in writing of that determination not less than 30 days before the award of the contract.
(b)
(1) a contract for property or services to be awarded on the basis of acceptance of an unsolicited research proposal, the property or services are deemed to be available from only one source if the source has submitted an unsolicited research proposal that demonstrates a unique and innovative concept, the substance of which is not otherwise available to the Federal Government and does not resemble the substance of a pending competitive procurement; or
(2) a follow-on contract for the continued development or production of a major system or highly specialized equipment, the property may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in—
(A) substantial duplication of cost to the Federal Government that is not expected to be recovered through competition; or
(B) unacceptable delay in fulfilling the executive agency's needs.
(c)
(1)
(A) may not exceed the time necessary—
(i) to meet the unusual and compelling requirements of the work to be performed under the contract; and
(ii) for the executive agency to enter into another contract for the required goods or services through the use of competitive procedures; and
(B) may not exceed one year unless the head of the executive agency entering into the contract determines that exceptional circumstances apply.
(2)
(d)
(e)
(1)
(A) the contracting officer for the contract justifies the use of those procedures in writing and certifies the accuracy and completeness of the justification;
(B) the justification is approved, in the case of a contract for an amount—
(i) exceeding $500,000 but equal to or less than $10,000,000, by the advocate for competition for the procuring activity (without further delegation) or by an official referred to in clause (ii) or (iii);
(ii) exceeding $10,000,000 but equal to or less than $50,000,000, by the head of the procuring activity or by a delegate who, if a member of the armed forces, is a general or flag officer or, if a civilian, is serving in a position in which the individual is entitled to receive the daily equivalent of the maximum annual rate of basic pay payable for level IV of the Executive Schedule (or in a comparable or higher position under another schedule); or
(iii) exceeding $50,000,000, by the senior procurement executive of the agency designated pursuant to section 1702(c) of this title (without further delegation); and
(C) any required notice has been published with respect to the contract pursuant to section 1708 of this title and the executive agency has considered all bids or proposals received in response to that notice.
(2)
(A) a description of the agency's needs;
(B) an identification of the statutory exception from the requirement to use competitive procedures and a demonstration, based on the proposed contractor's qualifications or the nature of the procurement, of the reasons for using that exception;
(C) a determination that the anticipated cost will be fair and reasonable;
(D) a description of the market survey conducted or a statement of the reasons a market survey was not conducted;
(E) a listing of any sources that expressed in writing an interest in the procurement; and
(F) a statement of any actions the agency may take to remove or overcome a barrier to competition before a subsequent procurement for those needs.
(3)
(4)
(A) a statute expressly requires that the procurement be made from a specified source;
(B) the agency's need is for a brand-name commercial product for authorized resale;
(C) the procurement is permitted by subsection (a)(7); or
(D) the procurement is conducted under chapter 85 of this title or section 8(a) of the Small Business Act (15 U.S.C. 637(a)).
(5)
(A)
(i) enter into a contract for property or services using procedures other than competitive procedures on the basis of the lack of advance planning or concerns related to the amount available to the agency for procurement functions; or
(ii) procure property or services from another executive agency unless the other executive agency complies fully with the requirements of this division in its procurement of the property or services.
(B)
(f)
(1)
(A)
(B)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3748; Pub. L. 115–232, div. A, title VIII, §836(b)(7), Aug. 13, 2018, 132 Stat. 1861.)
In subsection (a)(7), the words "(who may not delegate the authority under this paragraph)" are substituted for 41:253(d)(2) to move the restriction closer to where it applies.
In subsection (e)(1)(B)(i), the words "advocate for competition" are substituted for "competition advocate" for consistency with section 1705 of the revised title.
In subsection (e)(1)(B)(ii), the reference to section 5376 of title 5 is substituted for the reference to grade GS–16 or above under the General Schedule because of section 529 [title I, §101(c)(1)] of the Treasury, Postal Service and General Government Appropriations Act, 1991 (Public Law 101–509, 104 Stat. 1442, 5 U.S.C. 5376 note).
In subsection (e)(5)(B), the words "and not in lieu of" are omitted as unnecessary.
In subsection (f)(2), the words "referred to in subparagraph (A) of paragraph (1)" are added for clarity.
Senate Revision Amendment
In subsec. (e)(1)(B)(ii), "for level IV of the Executive Schedule" substituted for "under section 5376 of title 5" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010).
Editorial Notes
Amendments
2018—Subsecs. (a)(5), (e)(4)(B). Pub. L. 115–232 substituted "commercial product" for "commercial item".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
General Services Administration: Notification of Use of Noncompetitive Procedures in Response to Public Health Emergency Declaration
Pub. L. 116–136, div. B, title V, §15003, Mar. 27, 2020, 134 Stat. 532, provided that: "Notwithstanding 41 U.S.C. 3304(a)(7)(B), the Administrator, when making a determination that use of noncompetitive procedures is necessary for public interest in accordance with 41 U.S.C. 3304(a)(7)(A) in response to a public health emergency declaration by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 U.S.C. 247(d) [247d]), is required to notify Congress in writing of that determination not less than 3 days prior to the award of the contract."
Justification and Approval of Sole-Source Contracts
Pub. L. 111–84, div. A, title VIII, §811, Oct. 28, 2009, 123 Stat. 2405, as amended by Pub. L. 117–81, div. A, title XVII, §1702(i)(3), Dec. 27, 2021, 135 Stat. 2159, provided that:
"(a)
"(1) the contracting officer for the contract justifies the use of a sole-source contract in writing;
"(2) the justification is approved by the appropriate official designated to approve contract awards for dollar amounts that are comparable to the amount of the sole-source contract; and
"(3) the justification and related information are made public as provided in sections 3204(e)(1)(C) and 3204(f) of title 10, United States Code, or sections 303(f)(1)(C) and 303(j) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(1)(C) and 253(j)) [now 41 U.S.C. 3304(e)(1)(C) and 3304(f)], as applicable.
"(b)
"(1) A description of the needs of the agency concerned for the matters covered by the contract.
"(2) A specification of the statutory provision providing the exception from the requirement to use competitive procedures in entering into the contract.
"(3) A determination that the use of a sole-source contract is in the best interest of the agency concerned.
"(4) A determination that the anticipated cost of the contract will be fair and reasonable.
"(5) Such other matters as the head of the agency concerned shall specify for purposes of this section.
"(c)
"(1)
"(A) A procurement described in section 3204(e)(4)(D)(ii) of title 10, United States Code.
"(B) A procurement described in section 303(f)(2)(D)(ii) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C. 253(f)(2)(D)(ii)) [see 41 U.S.C. 3304(e)(4)(D)].
"(2)
"(A) in the case of a covered procurement as defined in paragraph (1)(A), has the meaning provided in section 3004 of title 10, United States Code; and
"(B) in the case of a covered procurement as defined in paragraph (1)(B), has the meaning provided the term 'agency head' in section 309(a) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(a)) [now 41 U.S.C. 151].
"(3)
"(A) in the case of a covered procurement as defined in paragraph (1)(A), an official designated in section 3204(e)(1)(B) of title 10, United States Code; and
"(B) in the case of a covered procurement as defined in paragraph (1)(B), an official designated in section 303(f)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(1)(B)) [now 41 U.S.C. 3304(e)(1)(B)]."
§3305. Simplified procedures for small purchases
(a)
(1) not greater than the simplified acquisition threshold; and
(2) greater than the simplified acquisition threshold but not greater than $5,000,000 for which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial products or commercial services.
(b)
(c)
(d)
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3752; Pub. L. 115–232, div. A, title VIII, §836(b)(8), Aug. 13, 2018, 132 Stat. 1861.)
Editorial Notes
Amendments
2018—Subsec. (a)(2). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§3306. Planning and solicitation requirements
(a)
(1)
(A) specify its needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement;
(B) use advance procurement planning and market research; and
(C) develop specifications in the manner necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired.
(2)
(A) consistent with this division, permit full and open competition; and
(B) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the executive agency or as authorized by law.
(3)
(A) function, so that a variety of products or services may qualify;
(B) performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or
(C) design requirements.
(b)
(1) a statement of—
(A) all significant factors and significant subfactors that the executive agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and
(B) the relative importance assigned to each of those factors and subfactors; and
(2)(A) in the case of sealed bids—
(i) a statement that sealed bids will be evaluated without discussions with the bidders; and
(ii) the time and place for the opening of the sealed bids; or
(B) in the case of competitive proposals—
(i) either a statement that the proposals are intended to be evaluated with, and the award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and the award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and
(ii) the time and place for submission of proposals.
(c)
(1)
(A) establish clearly the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);
(B) except as provided in paragraph (3), include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and
(C) except as provided in paragraph (3), disclose to offerors whether all evaluation factors other than cost or price, when combined, are—
(i) significantly more important than cost or price;
(ii) approximately equal in importance to cost or price; or
(iii) significantly less important than cost or price.
(2)
(3)
(A) the contracting officer need not consider price as an evaluation factor for contract award; and
(B) if, pursuant to subparagraph (A), price is not considered as an evaluation factor for contract award, cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to sections 4106(c) and 152(3) of this title of any task or delivery order under any contract resulting from the solicitation.
(4)
(A) is determined to be a responsible source;
(B) submits a proposal that conforms to the requirements of the solicitation;
(C) meets all technical requirements; and
(D) is otherwise eligible for award.
(d)
(1) providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or
(2) stating in a solicitation that award will be made to the offeror that meets the solicitation's mandatory requirements at the lowest cost or price.
(e)
(f)
(1)
(2)
(3)
(A) render an offeror ineligible to enter into a contract on the basis of the inclusion of a plan of the offeror to allow the offeror's employees to telecommute, unless the contracting officer concerned first determines that the requirements of the agency, including security requirements, cannot be met if telecommuting is allowed and documents in writing the basis for the determination; or
(B) reduce the scoring of an offer on the basis of the inclusion in the offer of a plan of the offeror to allow the offeror's employees to telecommute, unless the contracting officer concerned first determines that the requirements of the agency, including security requirements, would be adversely impacted if telecommuting is allowed and documents in writing the basis for the determination.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3752; Pub. L. 115–232, div. A, title VIII, §§836(b)(9), 876, Aug. 13, 2018, 132 Stat. 1861, 1907.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3306(a)–(e) | 41:253a. | June 30, 1949, ch. 288, title III, §303A, as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1178; Pub. L. 103–355, title I, §§1061(a), (b), 1062, title IV, §4402(b), Oct. 13, 1994, 108 Stat. 3266, 3267, 3348; Pub. L. 104–106, title XLII, §4202(b)(2), Feb. 10, 1996, 110 Stat. 653. |
| 3306(f) | 41:253a note. | Pub. L. 108–136, title XIV, §1428, Nov. 24, 2003, 117 Stat. 1670. |
In subsection (f)(2), the words "Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall amend" are omitted as obsolete.
Editorial Notes
Amendments
2018—Subsec. (b). Pub. L. 115–232, §836(b)(9), substituted "commercial products or commercial services" for "commercial items" in introductory provisions.
Subsec. (c)(1)(B), (C). Pub. L. 115–232, §876(1), inserted "except as provided in paragraph (3)," after subpar. designation.
Subsec. (c)(3), (4). Pub. L. 115–232, §876(2), added pars. (3) and (4).
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by section 836(b)(9) of Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§3307. Preference for commercial products and commercial services
(a)
(1)
(2)
(b)
(1) requirements of the executive agency with respect to a procurement of supplies or services are stated in terms of—
(A) functions to be performed;
(B) performance required; or
(C) essential physical characteristics;
(2) those requirements are defined so that commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products may be procured to fulfill those requirements; and
(3) offerors of commercial services, commercial products, and nondevelopmental items other than commercial products are provided an opportunity to compete in any procurement to fill those requirements.
(c)
(1) acquire commercial services or commercial products or nondevelopmental items other than commercial products to meet the needs of the executive agency;
(2) require that prime contractors and subcontractors at all levels under contracts of the executive agency incorporate commercial services or commercial products or nondevelopmental items other than commercial products as components of items supplied to the executive agency;
(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products;
(4) state specifications 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 executive agency's needs are not available, nondevelopmental items other than commercial products in response to the executive agency solicitations;
(5) revise the executive agency's procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial products and commercial services; and
(6) require training of appropriate personnel in the acquisition of commercial products and commercial services.
(d)
(1)
(A) before developing new specifications for a procurement by that executive agency; and
(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold.
(2)
(A) meet the executive agency's requirements;
(B) could be modified to meet the executive agency's requirements; or
(C) could meet the executive agency's requirements if those requirements were modified to a reasonable extent.
(3)
(4)
(e)
(1)
(2)
(A)
(B)
(i) required to implement provisions of law or executive orders applicable to acquisitions of commercial products, commercial components, or commercial services; or
(ii) determined to be consistent with standard commercial practice.
(C)
(i) required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial products, commercial components, or commercial services; or
(ii) determined to be consistent with standard commercial practice.
(D)
(E)
(3)
(A)
(i) have achieved commercial market acceptance or been satisfactorily supplied to an executive agency under current or recent contracts for the same or similar requirements; and
(ii) otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation relating to the contract.
(B)
(i) the minimum needs of the executive agency concerned; and
(ii) the entire relevant commercial market, including small businesses.
(4)
(A)
(i) a requirement that firm, fixed price contracts or fixed price with economic price adjustment contracts be used to the maximum extent practicable;
(ii) a prohibition on use of cost type contracts; and
(iii) subject to subparagraph (B), authority for use of a time-and-materials or labor-hour contract for the procurement of commercial services that are commonly sold to the general public through those contracts and are purchased by the procuring agency on a competitive basis.
(B)
(i) only for a procurement of commercial services in a category of commercial services described in subparagraph (C); and
(ii) only if the contracting officer for the procurement—
(I) executes a determination and findings that no other contract type is suitable;
(II) includes in the contract a ceiling price that the contractor exceeds at its own risk; and
(III) authorizes a subsequent change in the ceiling price only on a determination, documented in the contract file, that it is in the best interest of the procuring agency to change the ceiling price.
(C)
(i) Commercial services procured for support of a commercial product, as described in section 103a(1) of this title.
(ii) Any other category of commercial services that the Administrator for Federal Procurement Policy designates in the Federal Acquisition Regulation for the purposes of this subparagraph on the basis that—
(I) the commercial services in the category are of a type of commercial services that are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and
(II) it would be in the best interests of the Federal Government to authorize use of time-and-materials or labor-hour contracts for purchases of the commercial services in the category.
(5)
(A) allow, to the maximum extent practicable, a contractor under a commercial products acquisition to use the existing quality assurance system of the contractor as a substitute for compliance with an otherwise applicable requirement for the Federal Government to inspect or test the commercial products before the contractor's tender of those products for acceptance by the Federal Government;
(B) require that, to the maximum extent practicable, the executive agency take advantage of warranties (including extended warranties) offered by offerors of commercial products and use those warranties for the repair and replacement of commercial products; and
(C) set forth guidance regarding the use of past performance of commercial products and sources as a factor in contract award decisions.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3754; Pub. L. 115–232, div. A, title VIII, §836(b)(10)(A), (B)(i), Aug. 13, 2018, 132 Stat. 1861–1863; Pub. L. 116–92, div. A, title VIII, §818(b), Dec. 20, 2019, 133 Stat. 1488; Pub. L. 117–81, div. A, title XVII, §1702(h)(13), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3307(a) | 41:264. | June 30, 1949, ch. 288, title III, §§314, 314B, as added Pub. L. 103–355, title VIII, §§8201, 8203, Oct. 13, 1994, 108 Stat. 3394. |
| 3307(b) | 41:264b(a). | |
| 3307(c) | 41:264b(b). | |
| 3307(d) | 41:264b(c). | |
| 3307(e) | 41:264 note. | Pub. L. 103–355, title VIII, §8002, Oct. 13, 1994, 108 Stat. 3386; Pub. L. 108–136, title XIV, 1432, Nov. 24, 2003, 117 Stat. 1672. |
Subsection (a)(1) is substituted for 41 U.S.C. 264(a) for clarity.
In subsection (e), the text of section 8002(f) of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 41 U.S.C. 264 note) is omitted as obsolete.
In subsection (e)(2)(B)(i) and (C)(i), the words "as the case may be" are omitted as unnecessary.
Editorial Notes
Amendments
2021—Subsec. (e)(1). Pub. L. 117–81 substituted "chapter 247" for "chapter 140".
2019—Subsec. (d)(4). Pub. L. 116–92 added par. (4).
2018—Pub. L. 115–232, §836(b)(10)(B)(i), substituted "Preference for commercial products and commercial services" for "Preference for commercial items" in section catchline.
Subsec. (a). Pub. L. 115–232, §836(b)(10)(A)(i)(I), substituted "Commercial Products and Commercial Services" for "Commercial Items" in heading.
Subsec. (a)(1). Pub. L. 115–232, §836(b)(10)(A)(i)(II), substituted "commercial products and commercial services" for "commercial items".
Subsec. (a)(2). Pub. L. 115–232, §836(b)(10)(A)(i)(III), substituted "a commercial product or commercial service" for "a commercial item".
Subsec. (b)(2). Pub. L. 115–232, §836(b)(10)(A)(ii)(I), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (b)(3). Pub. L. 115–232, §836(b)(10)(A)(ii)(II), substituted "commercial services, commercial products, and nondevelopmental items other than commercial products" for "commercial items and nondevelopmental items other than commercial items".
Subsec. (c)(1), (2). Pub. L. 115–232, §836(b)(10)(A)(iii)(I), substituted "commercial services or commercial products or nondevelopmental items other than commercial products" for "commercial items or nondevelopmental items other than commercial items".
Subsec. (c)(3), (4). Pub. L. 115–232, §836(b)(10)(A)(iii)(II), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (c)(5), (6). Pub. L. 115–232, §836(b)(10)(A)(iii)(III), substituted "commercial products and commercial services" for "commercial items".
Subsec. (d)(2). Pub. L. 115–232, §836(b)(10)(A)(iv), in introductory provisions, substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (e)(1). Pub. L. 115–232, §836(b)(10)(A)(v)(I), inserted "103a, 104," after "sections 102, 103,".
Subsec. (e)(2)(A). Pub. L. 115–232, §836(b)(10)(A)(v)(II), substituted "commercial products or commercial services" for "commercial items".
Subsec. (e)(2)(B). Pub. L. 115–232, §836(b)(10)(A)(v)(III), (IV), in introductory provisions, substituted "end items that are commercial products" for "commercial end items" and, in cl. (i), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(2)(C). Pub. L. 115–232, §836(b)(10)(A)(v)(IV), (V), in introductory provisions, substituted "commercial products or commercial services" for "commercial items" and, in cl. (i), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(2)(D). Pub. L. 115–232, §836(b)(10)(A)(v)(IV), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(4)(A). Pub. L. 115–232, §836(b)(10)(A)(v)(VI), substituted "commercial products or commercial services" for "commercial items" in introductory provisions.
Subsec. (e)(4)(C)(i). Pub. L. 115–232, §836(b)(10)(A)(v)(VII), substituted "commercial product, as described in section 103a(1)" for "commercial item, as described in section 103(5)".
Subsec. (e)(5). Pub. L. 115–232, §836(b)(10)(A)(v)(VIII), substituted "products" for "items" wherever appearing.
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§3308. Planning for future competition in contracts for major systems
(a)
(1)
(2)
(A) Proposals to incorporate in the design of the major system items that are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source.
(B) With respect to items that are likely to be required in substantial quantities during the system's service life, proposals to incorporate in the design of the major system items that the Federal Government will be able to acquire competitively in the future.
(b)
(1)
(2)
(A) Proposals to provide to the Federal Government the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the Federal Government of acquiring the data and the right to use the data.
(B) Proposals for the qualification or development of multiple sources of supply for the item.
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3758.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3308 | 41:253b(j). | June 30, 1949, ch. 288, title III, §303B(j), formerly §303B(f), as added Pub. L. 98–577, title II, §201(a), Oct. 30, 1984, 98 Stat. 3068; redesignated as §303B(g), Pub. L. 103–355, title I, §1064(1), Oct. 13, 1994, 108 Stat. 3268; redesignated as §303B(j), Pub. L. 104–106, title XLI, §4104(b)(2), Feb. 10, 1996, 110 Stat. 645. |
§3309. Design-build selection procedures
(a)
(b)
(1) the contracting officer anticipates that 3 or more offers will be received for the contract;
(2) design work must be performed before an offeror can develop a price or cost proposal for the contract;
(3) the offeror will incur a substantial amount of expense in preparing the offer; and
(4) the contracting officer has considered information such as the following:
(A) The extent to which the project requirements have been adequately defined.
(B) The time constraints for delivery of the project.
(C) The capability and experience of potential contractors.
(D) The suitability of the project for use of the two-phase selection procedures.
(E) The capability of the agency to manage the two-phase selection process.
(F) Other criteria established by the agency.
(c)
(1)
(2)
(A) include information on the offeror's—
(i) technical approach; and
(ii) technical qualifications; and
(B) do not include—
(i) detailed design information; or
(ii) cost or price information.
(3)
(4)
(A)
(i) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work, or both; and
(ii) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with subsections (b) to (d) of section 3306 of this title.
(B)
(5)
(d)
(e)
(1) regarding the factors that may be considered in determining whether the two-phase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;
(2) regarding the factors that may be used in selecting contractors; and
(3) providing for a uniform approach to be used Government-wide.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3759.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3309 | 41:253m. | June 30, 1949, ch. 288, title III, §303M, as added Pub. L. 104–106, div. D, title XLI, §4105(b)(1), Feb. 10, 1996, 110 Stat. 647. |
In subsections (a) and (c)(1), the words "sections 1101 to 1104 of title 40" are substituted for "the Brooks Architect-Engineers Act (title IX of this Act)" and "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)", respectively, because of section 5(c) of Public Law 107–217 (40 U.S.C. note prec. 101) and for consistency with title 40.
In subsection (c)(5), the reference to section 253b of this title is limited to chapter 37 of the revised title for clarity.
Statutory Notes and Related Subsidiaries
Prohibition on Use of a Reverse Auction for the Award of a Contract for Complex, Specialized, or Substantial Design and Construction Services
Pub. L. 116–260, div. U, title IV, §402, Dec. 27, 2020, 134 Stat. 2292, as amended by Pub. L. 117–28, §2, July 26, 2021, 135 Stat. 304, provided that:
"(a)
"(1) In contrast to a traditional auction in which the buyers bid up the price, sellers bid down the price in a reverse auction.
"(2) Reverse auctions, while providing value for the vast majority of Federal acquisitions, including certain construction-related acquisitions, are limited in value for complex, specialized, or substantial design and construction services.
"(b)
"(c)
"(1)
"(2)
"(d)
"(1) site planning and landscape design;
"(2) architectural and engineering services (as defined in section 1102 of title 40, United States Code);
"(3) interior design;
"(4) performance of substantial construction work for facility, infrastructure, and environmental restoration projects; and
"(5) construction or substantial alteration of public buildings or public works.
"(e)
"(f)
§3310. Quantities to order
(a)
(1) will result in the total cost and unit cost most advantageous to the Federal Government, where practicable; and
(2) does not exceed the quantity reasonably expected to be required by the agency.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3761.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3310 | 41:253f. | June 30, 1949, ch. 288, title III, §303F, formerly §303G, as added Pub. L. 98–577, title II, §205(a), Oct. 30, 1984, 98 Stat. 3073; renumbered §303F, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
In subsection (b), the words "or quantities" are omitted because of 1:1.
§3311. Qualification requirement
(a)
(b)
(1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award;
(2) specify in writing and make available to a potential offeror on request all requirements that a prospective offeror, or its product, must satisfy to become qualified, with those requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification requirement;
(3) specify an estimate of the cost of testing and evaluation likely to be incurred by a potential offeror to become qualified;
(4) ensure that a potential offeror is provided, on request, a prompt opportunity to demonstrate at its own expense (except as provided in subsection (d)) its ability to meet the standards specified for qualification using—
(A) qualified personnel and facilities—
(i) of the agency concerned;
(ii) of another agency obtained through interagency agreement; or
(iii) under contract; or
(B) other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency);
(5) if testing and evaluation services are provided under contract to the agency for the purposes of paragraph (4), provide to the extent possible that those services be provided by a contractor that—
(A) is not expected to benefit from an absence of additional qualified sources; and
(B) is required in the contract to adhere to any restriction on technical data asserted by the potential offeror seeking qualification; and
(6) ensure that a potential offeror seeking qualification is promptly informed whether qualification is attained and, if not attained, is promptly furnished specific information about why qualification was not attained.
(c)
(1)
(2)
(A)
(B)
(C)
(3)
(4)
(5)
(d)
(1)
(A) publish notice periodically soliciting additional sources or products to seek qualification, unless the contracting officer determines that doing so would compromise national security; and
(B) subject to paragraph (2), bear the cost of conducting the specified testing and evaluation (excluding the cost associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern that has met the standards specified for qualification and that could reasonably be expected to compete for a contract for that requirement.
(2)
(3)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3761.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3311 | 41:253c. | June 30, 1949, ch. 288, title III, §303C, formerly §303D, as added Pub. L. 98–577, title II, §202(a), Oct. 30, 1984, 98 Stat. 3069; renumbered §303C, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
In subsection (d)(1)(A), the words "in the Commerce Business Daily" are omitted as obsolete. See revision note for section 1708(d) of the revised title.
§3312. Database on price trends of items and services under Federal contracts
(a)
(1) Monitoring developments in price trends for items and services under contracts with the Federal Government.
(2) Conducting price or cost analyses for items and services under offers for contracts with the Federal Government, or otherwise conducting determinations of the reasonableness of prices for items and services under such offers, and addressing unjustified escalation in prices being paid by the Federal Government for items and services under contracts with the Federal Government.
(b)
(2) The Secretary of Defense may satisfy the requirements of this section by complying with the requirements of section 892 1 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 2306a note).
(Added Pub. L. 112–239, div. A, title VIII, §851(a)(1), Jan. 2, 2013, 126 Stat. 1855.)
Editorial Notes
References in Text
Section 892 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, referred to in subsec. (b)(2), is section 892 of Pub. L. 111–383, which was formerly set out as a note under section 2306a of Title 10, Armed Forces, prior to repeal by Pub. L. 114–92, div. A, title X, §1073(f), Nov. 25, 2015, 129 Stat. 996.
Statutory Notes and Related Subsidiaries
Use of Elements of Department of Defense Pilot Project
Pub. L. 112–239, div. A, title VIII, §851(b), Jan. 2, 2013, 126 Stat. 1855, provided that: "In establishing the database required by section 3312 of title 41, United States Code (as added by subsection (a)), the Administrator for Federal Procurement Policy shall use and incorporate appropriate elements of the pilot project on pricing being carried out by the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to section 892 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 [Pub. L. 111–383] (10 U.S.C. 2306a note) and the Better Buying Power initiative of the Secretary of Defense."
1 See References in Text note below.
CHAPTER 35—TRUTHFUL COST OR PRICING DATA
Senate Revision Amendment
In chapter 35 heading, "OR" substituted for "AND" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18683 (2010).
§3501. General
(a)
(1)
(2)
(b)
(1)
(2)
(A) prices paid for the same or similar commercial services under comparable terms and conditions by both government and commercial customers; and
(B) if the contracting officer determines that the information described in subparagraph (A) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3764; Pub. L. 115–232, div. A, title VIII, §836(b)(11), Aug. 13, 2018, 132 Stat. 1863.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3501(a) | 41:254b(h). | June 30, 1949, ch. 288, title III, §304A(h), formerly §304A(i), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3284; redesignated as §304A(h), Pub. L. 104–106, title XLII, §4201(b)(2)(B), Feb. 10, 1996, 110 Stat. 652. |
| 3501(b) | 41:254b note. | Pub. L. 110–417, [div. A], title VIII, §868, Oct. 14, 2008, 122 Stat. 4552. |
Subsection (a) of Pub. L. 110–417, §868 is omitted as unnecessary.
In subsection (b)(1), the words "The Federal Acquisition Regulation" are substituted for "The regulations modified pursuant to subsection (a)" for clarity and conformity with the revised title.
Editorial Notes
Amendments
2018—Subsec. (a). Pub. L. 115–232, §836(b)(11)(A), redesignated pars. (2) and (3) as (1) and (2), respectively, substituted "commercial products or commercial services" for "commercial items" in par. (2), as redesignated, and struck out former par. (1), which defined "commercial item".
Subsec. (b)(1). Pub. L. 115–232, §836(b)(11)(B), in heading, struck out "item" before "authority" and, in text, substituted "commercial services" for "commercial items".
Subsec. (b)(2)(A). Pub. L. 115–232, §836(b)(11)(B)(ii), substituted "commercial services" for "commercial items".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§3502. Required cost or pricing data and certification
(a)
(1)
(A) in the case of a prime contract entered into after June 30, 2018, the price of the contract to the Federal Government is expected to exceed $2,000,000; and
(B) in the case of a prime contract entered into on or before June 30, 2018, the price of the contract to the Federal Government is expected to exceed $750,000.
(2)
(A) in the case of a change or modification made to a prime contract referred to in paragraph (1)(A), the price adjustment is expected to exceed $2,000,000;
(B) in the case of a change or modification made to a prime contract that was entered into on or before June 30, 2018, and that has been modified pursuant to subsection (f), the price adjustment is expected to exceed $750,000; and
(C) in the case of a change or modification not covered by subparagraph (A) or (B), the price adjustment is expected to exceed $750,000.
(3)
(A) in the case of a subcontract under a prime contract referred to in paragraph (1)(A), the price of the subcontract is expected to exceed $2,000,000;
(B) in the case of a subcontract entered into under a prime contract that was entered into on or before June 30, 2018, and that has been modified pursuant to subsection (f), the price of the subcontract is expected to exceed $2,000,000; and
(C) in the case of a subcontract not covered by subparagraph (A) or (B), the price of the subcontract is expected to exceed $750,000.
(4)
(A) in the case of a change or modification to a subcontract referred to in paragraph (3)(A) or (B), the price adjustment is expected to exceed $2,000,000; and
(B) in the case of a change or modification to a subcontract referred to in paragraph (3)(C), the price adjustment is expected to exceed $750,000.
(b)
(c)
(1) in the case of a submission by a prime contractor (or an offeror for a prime contract), to the contracting officer for the contract (or a designated representative of the contracting officer); or
(2) in the case of a submission by a subcontractor (or an offeror for a subcontract), to the prime contractor.
(d)
(e)
(f)
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3765; Pub. L. 115–91, div. A, title VIII, §811(a)(2), Dec. 12, 2017, 131 Stat. 1459.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3502 | 41:254b(a). | June 30, 1949, ch. 288, title III, §304A(a), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3278; Pub. L. 105–261, div. A, title VIII, §805(b), Oct. 17, 1998, 112 Stat. 2083. |
Editorial Notes
Amendments
2017—Subsec. (a). Pub. L. 115–91, §811(a)(2)(A)(i), (ii), substituted "June 30, 2018" for "October 13, 1994" and "$750,000" for "$100,000" wherever appearing.
Subsec. (a)(1)(A), (2)(A). Pub. L. 115–91, §811(a)(2)(A)(iii), substituted "$2,000,000" for "$500,000".
Subsec. (a)(2)(B). Pub. L. 115–91, §811(a)(2)(A)(iv), substituted "$750,000" for "$500,000".
Subsec. (a)(3)(A), (B), (4)(A). Pub. L. 115–91, §811(a)(2)(A)(iii), substituted "$2,000,000" for "$500,000".
Subsec. (f). Pub. L. 115–91, §811(a)(2)(B), substituted "June 30, 2018" for "October 13, 1994".
Subsec. (g). Pub. L. 115–91, §811(a)(2)(C), substituted "in accordance with section 1908." for "to the amount that is equal to the fiscal year 1994 constant dollar value of the amount set forth. Any amount, as so adjusted, that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. In the case of an amount that is evenly divisible by $25,000 but not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000."
§3503. Exceptions
(a)
(1) for which the price agreed on is based on—
(A) adequate price competition; or
(B) prices set by law or regulation;
(2) for the acquisition of a commercial product or a commercial service; or
(3) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this chapter may be waived and justifies in writing the reasons for the determination.
(b)
(1) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1) or (2) of subsection (a); and
(2) the modification would not change the contract or subcontract from a contract or subcontract for the acquisition of a commercial product or a commercial service to a contract or subcontract for the acquisition of an item other than a commercial product or a commercial service.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3766; Pub. L. 115–232, div. A, title VIII, §836(b)(12), Aug. 13, 2018, 132 Stat. 1863.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3503 | 41:254b(b). | June 30, 1949, ch. 288, title III, §304A(b), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3279; Pub. L. 104–106, title XLII, §4201(b)(1), Feb. 10, 1996, 110 Stat. 651. |
In subsection (b)(2), the words "as the case may be" are omitted as unnecessary.
Editorial Notes
Amendments
2018—Subsec. (a)(2). Pub. L. 115–232, §836(b)(12)(A), substituted "a commercial product or a commercial service" for "a commercial item".
Subsec. (b). Pub. L. 115–232, §836(b)(12)(B), in heading, substituted "Commercial Products or Commercial Services" for "Commercial Items" and, in text, substituted "a commercial product or a commercial service" for "a commercial item" wherever appearing.
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§3504. Cost or pricing data on below-threshold contracts
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3767.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3504 | 41:254b(c). | June 30, 1949, ch. 288, title III, §304A(c), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3280; Pub. L. 104–106, title XLII, §§4201(b)(1), 4321(e)(3), Feb. 10, 1996, 110 Stat. 651, 675. |
§3505. Submission of other information
(a)
(b)
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3767; Pub. L. 115–232, div. A, title VIII, §836(b)(13), Aug. 13, 2018, 132 Stat. 1863.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3505 | 41:254b(d). | June 30, 1949, ch. 288, title III, §304A(d), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3281; Pub. L. 104–106, title XLII, §§4201(b)(1), 4321(e)(4), Feb. 10, 1996, 110 Stat. 652, 675; Pub. L. 105–261, div. A, title VIII, §808(b), Oct. 17, 1998, 112 Stat. 2085. |
Editorial Notes
Amendments
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items" wherever appearing.
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§3506. Price reductions for defective cost or pricing data
(a)
(1)
(2)
(b)
(c)
(1) the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted by the contractor or subcontractor because the contractor or subcontractor—
(A) was the sole source of the property or services procured; or
(B) otherwise was in a superior bargaining position with respect to the property or services procured;
(2) the contracting officer should have known that the cost or pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting officer;
(3) the contract was based on an agreement between the contractor and the Federal Government about the total cost of the contract and there was no agreement about the cost of each item procured under the contract; or
(4) the prime contractor or subcontractor did not submit a certification of cost or pricing data relating to the contract as required by section 3502(b) of this title.
(d)
(1)
(A) the contractor certifies to the contracting officer (or to a designated representative of the contracting officer) that, to the best of the contractor's knowledge and belief, the contractor is entitled to the offset; and
(B) the contractor proves that the cost or pricing data were available before the date of agreement on the price of the contract (or price of the modification), or, if applicable, consistent with subsection (a)(2), another date agreed on by the parties, and that the data were not submitted as specified in section 3502(c) of this title before that date.
(2)
(A) the certification under section 3502(b) of this title with respect to the cost or pricing data involved was known to be false when signed; or
(B) the Federal Government proves that, had the cost or pricing data referred to in paragraph (1)(B) been submitted to the Federal Government before date of agreement on the price of the contract (or price of the modification), or, if applicable, under subsection (a)(2), another date agreed on by the parties, the submission of the cost or pricing data would not have resulted in an increase in that price in the amount to be offset.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3768.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3506 | 41:254b(e). | June 30, 1949, ch. 288, title III, §304A(e), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3282. |
§3507. Interest and penalties for certain overpayments
(a)
(1) for interest on the amount of the overpayment, to be computed—
(A) for the period beginning on the date the overpayment was made to the contractor and ending on the date the contractor repays the amount of the overpayment to the Federal Government; and
(B) at the current rate prescribed by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621); and
(2) if the submission of the defective data was a knowing submission, for an additional amount equal to the amount of the overpayment.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3769.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3507 | 41:254b(f). | June 30, 1949, ch. 288, title III, §304A(f), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3283. |
§3508. Right to examine contractor records
For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this chapter, an executive agency shall have the authority provided by section 4706(b)(2) of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3770.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3508 | 41:254b(g). | June 30, 1949, ch. 288, title III, §304A(g), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3283. |
§3509. Notification of violations of Federal criminal law or overpayments
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3770; Pub. L. 115–232, div. A, title VIII, §836(b)(14), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3509 | 41:251 note. | Pub. L. 110–252, title VI, §§6102, 6103, June 30, 2008, 122 Stat. 2386, 2387. |
In subsection (b), the words "shall include" are substituted for "shall be amended" and "to include" to reflect the permanence of the provision. The words "within 180 days after the date of the enactment of this Act" are omitted as obsolete.
Editorial Notes
Amendments
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
CHAPTER 37—AWARDING OF CONTRACTS
§3701. Basis of award and rejection
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3770.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3701(a) | 41:253b(a). | June 30, 1949, ch. 288, title III, §303B(a), (b), as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1179; Pub. L. 103–355, title I, §1061(c)(1), Oct. 13, 1994, 108 Stat. 3267. |
| 3701(b) | 41:253b(b). |
Statutory Notes and Related Subsidiaries
Use of Lowest Price Technically Acceptable Source Selection Process
Pub. L. 115–232, div. A, title VIII, §880, Aug. 13, 2018, 132 Stat. 1909, as amended by Pub. L. 116–92, div. A, title VIII, §806(a)(2), Dec. 20, 2019, 133 Stat. 1485, provided that:
"(a)
"(b)
"(1) an executive agency is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;
"(2) the executive agency would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;
"(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;
"(4) the executive agency has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the executive agency;
"(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and
"(6) the executive agency has determined that the lowest price reflects full life-cycle costs, including for operations and support.
"(c)
"(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, health care services and records, telecommunications devices and services, or other knowledge-based professional services;
"(2) personal protective equipment; or
"(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
"(d)
"(1)
"(2)
"(3)
Congressional Statement of Purpose
Pub. L. 98–577, title I, §101, Oct. 30, 1984, 98 Stat. 3066, provided that: "The purposes of this Act [see Tables for classification] are to—
"(1) eliminate procurement procedures and practices that unnecessarily inhibit full and open competition for contracts;
"(2) promote the use of contracting opportunities as a means to expand the industrial base of the United States in order to ensure adequate responsive capability of the economy to the increased demands of the Government in times of national emergency; and
"(3) foster opportunities for the increased participation in the competitive procurement process of small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals."
Executive Documents
Ex. Ord. No. 12979. Agency Procurement Protests
Ex. Ord. No. 12979, Oct. 25, 1995, 60 F.R. 55171, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to ensure effective and efficient expenditure of public funds and fair and expeditious resolution of protests to the award of Federal procurement contracts, it is hereby ordered as follows:
(a) emphasize that whenever conduct of a procurement is contested, all parties should use their best efforts to resolve the matter with agency contracting officers;
(b) to the maximum extent practicable, provide for inexpensive, informal, procedurally simple, and expeditious resolution of protests, including, where appropriate and as permitted by law, the use of alternative dispute resolution techniques, third party neutrals, and another agency's personnel;
(c) allow actual or prospective bidders or offerors whose direct economic interests would be affected by the award or failure to award the contract to request a review, at a level above the contracting officer, of any decision by a contracting officer that is alleged to have violated a statute or regulation and, thereby, caused prejudice to the protester; and
(d) except where immediate contract award or performance is justified for urgent and compelling reasons or is determined to be in the best interest of the United States, prohibit award or performance of the contract while a timely filed protest is pending before the agency. To allow for the withholding of a contract award or performance, the agency must have received notice of the protest within either 10 calendar days after the contract award or 5 calendar days after the bidder or offeror who is protesting the contract award was given the opportunity to be debriefed by the agency, whichever date is later.
(b) review and evaluate agency experience and performance under this order, and report on any findings to the President within 2 years from the date of this order.
William J. Clinton.
§3702. Sealed bids
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3770.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3702(a) | 41:253b(c) (1st sentence). | June 30, 1949, ch. 288, title III, §303B(c), as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1179; Pub. L. 103–355, title I, §§1061(c)(2), 1063(a), Oct. 13, 1994, 108 Stat. 3267, 3268. |
| 3702(b) | 41:253b(c) (2d sentence). | |
| 3702(a) | 41:253b(c) (3d, last sentences). |
§3703. Competitive proposals
(a)
(1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or
(2) based on the proposals received and without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), if, as required by section 3306(b)(2)(B)(i) of this title, the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions unless discussions are determined to be necessary.
(b)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3771.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3703(a) | 41:253b(d)(1). | June 30, 1949, ch. 288, title III, §303B(d), as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1180; Pub. L. 103–355, title I, §§1061(c)(3), 1063(b), Oct. 13, 1994, 108 Stat. 3267, 3268; Pub. L. 104–106, title XLI, §4103(b), Feb. 10, 1996, 110 Stat. 644. |
| 3703(b) | 41:253b(d)(2). | |
| 3703(c) | 41:253b(d)(3) (1st sentence). | |
| 3703(d) | 41:253b(d)(3) (last sentence). |
§3704. Post-award debriefings
(a)
(b)
(c)
(1) the executive agency's evaluation of the significant weak or deficient factors in the offeror's offer;
(2) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror;
(3) the overall ranking of all offers;
(4) a summary of the rationale for the award;
(5) in the case of a proposal that includes a commercial product that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract; and
(6) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.
(d)
(e)
(f)
(1) the information provided in debriefings under this section regarding the offer of the contractor awarded the contract; and
(2) the same information that would have been provided to the original offerors.
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3771; Pub. L. 115–232, div. A, title VIII, §836(b)(15), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3704(a) | 41:253b(e)(1) (1st sentence). | June 30, 1949, ch. 288, title III, §303B(e), as added Pub. L. 103–355, title I, §1064(2), Oct. 13, 1994, 108 Stat. 3268; Pub. L. 104–106, title XLI, §4104(b)(1), Feb. 10, 1996, 110 Stat. 645. |
| 3704(b) | 41:253b(e)(1) (last sentence). | |
| 3704(c) | 41:253b(e)(2). | |
| 3704(d) | 41:253b(e)(3). | |
| 3704(e) | 41:253b(e)(4). | |
| 3704(f) | 41:253b(e)(5). | |
| 3704(g) | 41:253b(g) (related to 41:253b(e)). | June 30, 1949, ch. 288, title III, §303B(g) (related to §303B(e)), as added Pub. L. 104–106, title XLI, §4104(b)(3), Feb. 10, 1996, 110 Stat. 645. |
Editorial Notes
Amendments
2018—Subsec. (c)(5). Pub. L. 115–232 substituted "commercial product" for "commercial item".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§3705. Pre-award debriefings
(a)
(b)
(c)
(d)
(1) the executive agency's evaluation of the significant elements in the offeror's offer;
(2) a summary of the rationale for the offeror's exclusion; and
(3) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3772.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3705(a) | 41:253b(f)(1) (1st sentence). | June 30, 1949, ch. 288, title III, §303B(f), (g) (related to §303B(f)), as added Pub. L. 104–106, title XLI, §4104(b)(3), Feb. 10, 1996, 110 Stat. 645. |
| 3705(b) | 41:253b(f)(1) (last sentence). | |
| 3705(c) | 41:253b(f)(2). | |
| 3705(d) | 41:253b(f)(3). | |
| 3705(e) | 41:253b(f)(4). | |
| 3705(f) | 41:253b(g) (related to 41:253b(f)). |
§3706. Encouragement of alternative dispute resolution
The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3773.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3706 | 41:253b(h). | June 30, 1949, ch. 288, title III, §303B(h), as added Pub. L. 104–106, title XLI, §4104(b)(3), Feb. 10, 1996, 110 Stat. 645. |
§3707. Antitrust violations
If the agency head considers that a bid or proposal evidences a violation of the antitrust laws, the agency head shall refer the bid or proposal to the Attorney General for appropriate action.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3773.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3707 | 41:253b(i). | June 30, 1949, ch. 288, title III, §303B(i), formerly §303B(e), as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1180; redesignated as §303B(f), Pub. L. 103–355, title I, §1064(1), Oct. 13, 1994, 108 Stat. 3268; redesignated as §303B(i), Pub. L. 104–106, title XLI, §4104(b)(2), Feb. 10, 1996, 110 Stat. 645. |
§3708. Protests
(a)
(1)
(2)
(b)
(1) take any action set out in subparagraphs (A) to (F) of subsection (b)(1) of section 3554 of title 31; and
(2) pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits referred to in paragraph (2) of section 3554(c).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3773.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3708(a) | 41:253b(k). | June 30, 1949, ch. 288, title III, §303B(k), formerly §303B(h), as added Pub. L. 103–355, title I, §1065, Oct. 13, 1994, 108 Stat. 3269; redesignated as §303B(k), Pub. L. 104–106, title XLI, §4104(b)(2), Feb. 10, 1996, 110 Stat. 645; Pub. L. 104–106, title XLI, §5607(c), Feb. 10, 1996, 110 Stat. 701, as amended Pub. L. 104–201, title X, §1074(b)(7) (less effective date), Sept. 23, 1996, 110 Stat. 2660. |
| 3708(b) | 41:253b(l). | June 30, 1949, ch. 288, title III, §303B(l), formerly §303B(i), as added Pub. L. 103–355, title I, §1066, Oct. 13, 1994, 108 Stat. 3269; redesignated as §303B(l), Pub. L. 104–106, title XLI, §4104(b)(2), Feb. 10, 1996, 110 Stat. 645. |
CHAPTER 39—SPECIFIC TYPES OF CONTRACTS
Statutory Notes and Related Subsidiaries
Separability
Act June 30, 1949, ch. 288, title VI, §604, formerly title V, §504, 63 Stat. 403, renumbered by act Sept. 5, 1950, ch. 849, §6(a), (b), 64 Stat. 583, provided that: "If any provision of this Act [see Tables for classification], or the application thereof to any person or circumstances, is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances, shall not be affected thereby."
American Security Drones
Pub. L. 118–31, div. A, title XVIII, subtitle B, Dec. 22, 2023, 137 Stat. 691, provided that:
"SEC. 1821. SHORT TITLE.
"This subtitle may be cited as the 'American Security Drone Act of 2023'.
"SEC. 1822. DEFINITIONS.
"In this subtitle:
"(1)
"(A) An entity included on the Consolidated Screening List.
"(B) Any entity that is subject to extrajudicial direction from a foreign government, as determined by the Secretary of Homeland Security.
"(C) Any entity the Secretary of Homeland Security, in coordination with the Attorney General, Director of National Intelligence, and the Secretary of Defense, determines poses a national security risk.
"(D) Any entity domiciled in the People's Republic of China or subject to influence or control by the Government of the People's Republic of China or the Communist Party of the People's Republic of China, as determined by the Secretary of Homeland Security.
"(E) Any subsidiary or affiliate of an entity described in subparagraphs (A) through (D).
"(2)
"(3)
"SEC. 1823. PROHIBITION ON PROCUREMENT OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"(a)
"(b)
"(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;
"(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or
"(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.
"(c)
"(d)
"(e)
"(f)
"(1) with the approval of the Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
"(2) upon notification to—
"(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(B) the Committee on Oversight and Accountability in the House of Representatives; and
"(C) other appropriate congressional committees of jurisdiction.
"SEC. 1824. PROHIBITION ON OPERATION OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"(a)
"(1)
"(2)
"(b)
"(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;
"(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or
"(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.
"(c)
"(d)
"(e)
"(f)
"(1) with the approval of the Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
"(2) upon notification to—
"(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(B) the Committee on Oversight and Accountability in the House of Representatives; and
"(C) other appropriate congressional committees of jurisdiction.
"(g)
"SEC. 1825. PROHIBITION ON USE OF FEDERAL FUNDS FOR PROCUREMENT AND OPERATION OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"(a)
"(1) to procure a covered unmanned aircraft system that is manufactured or assembled by a covered foreign entity; or
"(2) in connection with the operation of such a drone or unmanned aircraft system.
"(b)
"(1) is for the sole purposes of research, evaluation, training, testing, or analysis for electronic warfare, information warfare operations, cybersecurity, or development of unmanned aircraft system or counter-unmanned aircraft system technology;
"(2) is for the sole purposes of conducting counterterrorism or counterintelligence activities, protective missions, or Federal criminal or national security investigations, including forensic examinations, or for electronic warfare, information warfare operations, cybersecurity, or development of an unmanned aircraft system or counter-unmanned aircraft system technology; or
"(3) is an unmanned aircraft system that, as procured or as modified after procurement but before operational use, can no longer transfer to, or download data from, a covered foreign entity and otherwise poses no national security cybersecurity risks as determined by the exempting official.
"(c)
"(d)
"(e)
"(1) with the approval of the Director of the Office of Management and Budget, after consultation with the Federal Acquisition Security Council; and
"(2) upon notification to—
"(A) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(B) the Committee on Oversight and Accountability in the House of Representatives; and
"(C) other appropriate congressional committees of jurisdiction.
"(f)
"SEC. 1826. PROHIBITION ON USE OF GOVERNMENT-ISSUED PURCHASE CARDS TO PURCHASE COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"Effective immediately, Government-issued Purchase Cards may not be used to procure any covered unmanned aircraft system from a covered foreign entity.
"SEC. 1827. MANAGEMENT OF EXISTING INVENTORIES OF COVERED UNMANNED AIRCRAFT SYSTEMS FROM COVERED FOREIGN ENTITIES.
"(a)
"(b)
"(c)
"(d)
"SEC. 1828. COMPTROLLER GENERAL REPORT.
"Not later than 275 days after the date of the enactment of this Act [Dec. 22, 2023], the Comptroller General of the United States shall submit to Congress a report on the amount of commercial off-the-shelf drones and covered unmanned aircraft systems procured by Federal departments and agencies from covered foreign entities, except that nothing in this section shall apply to any element of the intelligence community.
"SEC. 1829. GOVERNMENT-WIDE POLICY FOR PROCUREMENT OF UNMANNED AIRCRAFT SYSTEMS.
"(a)
"(1) for non-Department of Defense and non-intelligence community operations; and
"(2) through grants and cooperative agreements entered into with non-Federal entities.
"(b)
"(1) Protections to ensure controlled access to an unmanned aircraft system.
"(2) Protecting software, firmware, and hardware by ensuring changes to an unmanned aircraft system are properly managed, including by ensuring an unmanned aircraft system can be updated using a secure, controlled, and configurable mechanism.
"(3) Cryptographically securing sensitive collected, stored, and transmitted data, including proper handling of privacy data and other controlled unclassified information.
"(4) Appropriate safeguards necessary to protect sensitive information, including during and after use of an unmanned aircraft system.
"(5) Appropriate data security to ensure that data is not transmitted to or stored in non-approved locations.
"(6) The ability to opt out of the uploading, downloading, or transmitting of data that is not required by law or regulation and an ability to choose with whom and where information is shared when it is required.
"(c)
"(d)
"(1) the Federal Acquisition Regulatory Council shall revise the Federal Acquisition Regulation, as necessary, to implement the policy; and
"(2) any Federal department or agency or other Federal entity not subject to, or not subject solely to, the Federal Acquisition Regulation shall revise applicable policy, guidance, or regulations, as necessary, to implement the policy.
"(e)
"(1) incorporate policies to implement the exemptions contained in this subtitle; and
"(2) incorporate an exemption to the policy in the case of a head of the procuring department or agency determining, in writing, that no product that complies with the information security requirements described in subsection (b) is capable of fulfilling mission critical performance requirements, and such determination—
"(A) may not be delegated below the level of the Deputy Secretary, or Administrator, of the procuring department or agency;
"(B) shall specify—
"(i) the quantity of end items to which the waiver applies and the procurement value of those items; and
"(ii) the time period over which the waiver applies, which shall not exceed three years;
"(C) shall be reported to the Office of Management and Budget following issuance of such a determination; and
"(D) not later than 30 days after the date on which the determination is made, shall be provided to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives.
"SEC. 1830. STATE, LOCAL, AND TERRITORIAL LAW ENFORCEMENT AND EMERGENCY SERVICE EXEMPTION.
"(a)
"(b)
"SEC. 1831. STUDY.
"(a)
"(1)
"(2)
"(A) A description of the current and future global and domestic market for covered unmanned aircraft systems that are not widely commercially available except from a covered foreign entity.
"(B) A description of the sustainability, availability, cost, and quality of secure sources of covered unmanned aircraft systems domestically and from sources in allied and partner countries.
"(C) The plan of the Secretary of Defense to address any gaps or deficiencies identified in subparagraph (B), including through the use of funds available under the Defense Production Act of 1950 (50 U.S.C. 4501 et seq.) and partnerships with the National Aeronautics and Space Administration and other interested persons.
"(D) Such other information as the Under Secretary of Defense for Acquisition and Sustainment determines to be appropriate.
"(3)
"(A) The Committees on Armed Services of the Senate and the House of Representatives.
"(B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Accountability of the House of Representatives.
"(C) The Committee on Commerce, Science, and Transportation of the Senate and the Committee on Science, Space, and Technology of the House of Representatives.
"(D) The Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
"(E) The Committee on Transportation and Infrastructure of the House of Representatives.
"(F) The Committee on Homeland Security of the House of Representatives.
"(G) The Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives.
"SEC. 1832. EXCEPTIONS.
"(a)
"(b)
"(c)
"SEC. 1833. SUNSET.
"Sections 1823, 1824, and 1825 shall cease to have effect on the date that is five years after the date of the enactment of this Act [Dec. 22, 2023]."
Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
Pub. L. 115–232, div. A, title VIII, §889, Aug. 13, 2018, 132 Stat. 1917, as amended by Pub. L. 116–283, div. A, title X, §1081(d)(5), Jan. 1, 2021, 134 Stat. 3874, provided that:
"(a)
"(A) procure or obtain or extend or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or
"(B) enter into a contract (or extend or renew a contract) with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.
"(2) Nothing in paragraph (1) shall be construed to—
"(A) prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
"(B) cover telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
"(b)
"(2) In implementing the prohibition in paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs, including the heads of the Federal Communications Commission, the Department of Agriculture, the Department of Homeland Security, the Small Business Administration, and the Department of Commerce, shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.
"(3) Nothing in this subsection shall be construed to—
"(A) prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
"(B) cover telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
"(c)
"(d)
"(1)
"(A) provides a compelling justification for the additional time to implement the requirements under such subsection, as determined by the head of the executive agency; and
"(B) submits to the head of the executive agency, who shall not later than 30 days thereafter submit to the appropriate congressional committees, a full and complete laydown of the presences of covered telecommunications or video surveillance equipment or services in the entity's supply chain and a phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the entity's systems.
"(2)
"(f)
"(1)
"(A) the Committee on Banking, Housing, and Urban Affairs, the Committee on Foreign Relations, and the Committee on Homeland Security and Governmental Affairs of the Senate; and
"(B) the Committee on Financial Services, the Committee on Foreign Affairs, and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives.
"(2)
"(3)
"(A) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
"(B) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
"(C) Telecommunications or video surveillance services provided by such entities or using such equipment.
"(D) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
"(4)
[Pub. L. 116–283, div. A, title X, §1081(d), Jan. 1, 2021, 134 Stat. 3873, provided that the amendment made by section 1081(d)(5) of Pub. L. 116–283 to section 889 of Pub. L. 115–232, set out above, is effective as of Aug. 13, 2018, and as if included in Pub. L. 115–232.]
Share-in-Savings Contracts
Act June 30, 1949, ch. 288, title III, §317, as added Pub. L. 107–347, title II, §210(b), Dec. 17, 2002, 116 Stat. 2934, provided that:
"(a)
"(2)(A) Except as provided in subparagraph (B), a share-in-savings contract shall be awarded for a period of not more than five years.
"(B) A share-in-savings contract may be awarded for a period greater than five years, but not more than 10 years, if the head of the agency determines in writing prior to award of the contract that—
"(i) the level of risk to be assumed and the investment to be undertaken by the contractor is likely to inhibit the government from obtaining the needed information technology competitively at a fair and reasonable price if the contract is limited in duration to a period of five years or less; and
"(ii) usage of the information technology to be acquired is likely to continue for a period of time sufficient to generate reasonable benefit for the government.
"(3) Contracts awarded pursuant to the authority of this section shall, to the maximum extent practicable, be performance-based contracts that identify objective outcomes and contain performance standards that will be used to measure achievement and milestones that must be met before payment is made.
"(4) Contracts awarded pursuant to the authority of this section shall include a provision containing a quantifiable baseline that is to be the basis upon which a savings share ratio is established that governs the amount of payment a contractor is to receive under the contract. Before commencement of performance of such a contract, the senior procurement executive of the agency shall determine in writing that the terms of the provision are quantifiable and will likely yield value to the Government.
"(5)(A) The head of the agency may retain savings realized through the use of a share-in-savings contract under this section that are in excess of the total amount of savings paid to the contractor under the contract, but may not retain any portion of such savings that is attributable to a decrease in the number of civilian employees of the Federal Government performing the function. Except as provided in subparagraph (B), savings shall be credited to the appropriation or fund against which charges were made to carry out the contract and shall be used for information technology.
"(B) Amounts retained by the agency under this subsection shall—
"(i) without further appropriation, remain available until expended; and
"(ii) be applied first to fund any contingent liabilities associated with share-in-savings procurements that are not fully funded.
"(b)
"(A) appropriations available for the performance of the contract;
"(B) appropriations available for acquisition of the information technology procured under the contract, and not otherwise obligated; or
"(C) funds subsequently appropriated for payments of costs of cancellation or termination, subject to the limitations in paragraph (3).
"(2) The amount payable in the event of cancellation or termination of a share-in-savings contract shall be negotiated with the contractor at the time the contract is entered into.
"(3)(A) Subject to subparagraph (B), the head of an executive agency may enter into share-in-savings contracts under this section in any given fiscal year even if funds are not made specifically available for the full costs of cancellation or termination of the contract if funds are available and sufficient to make payments with respect to the first fiscal year of the contract and the following conditions are met regarding the funding of cancellation and termination liability:
"(i) The amount of unfunded contingent liability for the contract does not exceed the lesser of—
"(I) 25 percent of the estimated costs of a cancellation or termination; or
"(II) $5,000,000.
"(ii) Unfunded contingent liability in excess of $1,000,000 has been approved by the Director of the Office of Management and Budget or the Director's designee.
"(B) The aggregate number of share-in-savings contracts that may be entered into under subparagraph (A) by all executive agencies to which this chapter applies in a fiscal year may not exceed 5 in each of fiscal years 2003, 2004, and 2005.
"(c)
"(1) The term 'contractor' means a private entity that enters into a contract with an agency.
"(2) The term 'savings' means—
"(A) monetary savings to an agency; or
"(B) savings in time or other benefits realized by the agency, including enhanced revenues (other than enhanced revenues from the collection of fees, taxes, debts, claims, or other amounts owed the Federal Government).
"(3) The term 'share-in-savings contract' means a contract under which—
"(A) a contractor provides solutions for—
"(i) improving the agency's mission-related or administrative processes; or
"(ii) accelerating the achievement of agency missions; and
"(B) the head of the agency pays the contractor an amount equal to a portion of the savings derived by the agency from—
"(i) any improvements in mission-related or administrative processes that result from implementation of the solution; or
"(ii) acceleration of achievement of agency missions.
"(d)
Executive Documents
Ex. Ord. No. 13496. Notification of Employee Rights Under Federal Labor Laws
Ex. Ord. No. 13496, Jan. 30, 2009, 74 F.R. 6107, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to ensure the economical and efficient administration and completion of Government contracts, it is hereby ordered that:
"1. During the term of this contract, the contractor agrees to post a notice, of such size and in such form, and containing such content as the Secretary of Labor shall prescribe, in conspicuous places in and about its plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically. The notice shall include the information contained in the notice published by the Secretary of Labor in the Federal Register (Secretary's Notice).
"2. The contractor will comply with all provisions of the Secretary's Notice, and related rules, regulations, and orders of the Secretary of Labor.
"3. In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]]. Such other sanctions or remedies may be imposed as are provided in Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]], or by rule, regulation, or order of the Secretary of Labor, or as are otherwise provided by law.
"4. The contractor will include the provisions of paragraphs (1) through (3) above in every subcontract entered into in connection with this contract (unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]]) so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any such subcontract as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non-compliance: Provided, however, that if the contractor becomes involved in litigation with a subcontractor, or is threatened with such involvement, as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States."
(a) The Secretary of Labor (Secretary) shall be responsible for the administration and enforcement of this order. The Secretary shall adopt such rules and regulations and issue such orders as are necessary and appropriate to achieve the purposes of this order.
(b) Within 120 days of the effective date of this order, the Secretary shall initiate a rulemaking to prescribe the size, form, and content of the notice to be posted by a contractor under paragraph 1 of the contract clause described in section 2 of this order. Such notice shall describe the rights of employees under Federal labor laws, consistent with the policy set forth in section 1 of this order.
(c) Whenever the Secretary finds that an act of Congress, clarification of existing law by the courts or the National Labor Relations Board, or other circumstances make modification of the contractual provisions set out in subsection (a) of this section necessary to achieve the purposes of this order, the Secretary promptly shall issue such rules, regulations, or orders as are needed to cause the substitution or addition of appropriate contractual provisions in Government contracts thereafter entered into.
(b) The Secretary may, if the Secretary finds that special circumstances require an exemption in order to serve the national interest, exempt a contracting department or agency from the requirements of any or all of the provisions of section 2 of this order with respect to a particular contract or subcontract or class of contracts or subcontracts.
(a) The Secretary may investigate any Government contractor, subcontractor, or vendor to determine whether the contractual provisions required by section 2 of this order have been violated.
Such investigations shall be conducted in accordance with procedures established by the Secretary.
(b) The Secretary shall receive and investigate complaints by employees of a Government contractor or subcontractor, where such complaints allege a failure to perform or a violation of the contractual provisions required by section 2 of this order.
(a) The Secretary, or any agency or officer in the executive branch lawfully designated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, regarding compliance with this order as the Secretary may deem advisable.
(b) The Secretary may hold hearings, or cause hearings to be held, in accordance with subsection (a) of this section, prior to imposing, ordering, or recommending the imposition of sanctions under this order. Neither an order for cancellation, termination, or suspension of any contract or debarment of any contractor from further Government contracts under section 7(b) of this order nor the inclusion of a contractor on a published list of noncomplying contractors under section 7(c) of this order shall be carried out without affording the contractor an opportunity for a hearing.
(a) after consulting with the contracting department or agency, direct that department or agency to cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor to comply with the contractual provisions required by section 2 of this order; contracts may be cancelled, terminated, or suspended absolutely, or continuance of contracts may be conditioned upon future compliance: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of the contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that completion of the contract is essential to the agency's mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of the contracting department or agency, or his or her designee, continues to object to the issuance of such directive;
(b) after consulting with each affected contracting department or agency, provide that one or more contracting departments or agencies shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary that such contractor has complied with and will carry out the provisions of this order: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of each contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that further contracts or extensions or other modifications of existing contracts with the noncomplying contractor are essential to the agency's mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of a contracting department or agency, or his or her designee, continues to object to the issuance of such directive; and
(c) publish, or cause to be published, the names of contractors that have, in the judgment of the Secretary, failed to comply with the provisions of this order or of related rules, regulations, and orders of the Secretary.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Ex. Ord. No. 13502. Use of Project Labor Agreements for Federal Construction Projects
Ex. Ord. No. 13502, Feb. 6, 2009, 74 F.R. 6985, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to promote the efficient administration and completion of Federal construction projects, it is hereby ordered that:
(b) The use of a project labor agreement may prevent these problems from developing by providing structure and stability to large-scale construction projects, thereby promoting the efficient and expeditious completion of Federal construction contracts. Accordingly, it is the policy of the Federal Government to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects in order to promote economy and efficiency in Federal procurement.
(a) The term "labor organization" as used in this order means a labor organization as defined in 29 U.S.C. 152(5).
(b) The term "construction" as used in this order means construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.
(c) The term "large-scale construction project" as used in this order means a construction project where the total cost to the Federal Government is $25 million or more.
(d) The term "executive agency" as used in this order has the same meaning as in 5 U.S.C. 105, but excludes the Government Accountability Office.
(e) The term "project labor agreement" as used in this order means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f).
(b) If an executive agency determines under subsection (a) that the use of a project labor agreement will satisfy the criteria in clauses (i) and (ii) of that subsection, the agency may, if appropriate, require that every contractor or subcontractor on the project agree, for that project, to negotiate or become a party to a project labor agreement with one or more appropriate labor organizations.
(a) bind all contractors and subcontractors on the Construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;
(b) allow all contractors and subcontractors to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;
(c) contain guarantees against strikes, lockouts, and similar job disruptions;
(d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the project labor agreement;
(e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and
(f) fully conform to all statutes, regulations, and Executive Orders.
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Ex. Ord. No. 13981. Protecting the United States From Certain Unmanned Aircraft Systems
Ex. Ord. No. 13981, Jan. 18, 2021, 86 F.R. 6821, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America,
I, DONALD J. TRUMP, President of the United States of America, find that additional actions are necessary to ensure the security of Unmanned Aircraft Systems (UAS) owned, operated, and controlled by the Federal Government; to secure the integrity of American infrastructure, including America's National Airspace System (NAS); to protect our law enforcement and warfighters; and to maintain and expand our domestic industrial base capabilities.
Accordingly, I hereby order:
United States Government operations involving UAS require accessing, collecting, and maintaining data, which could reveal sensitive information. The use of UAS and critical components manufactured and developed by foreign adversaries, or by persons under their control, may allow this sensitive information to be accessed by or transferred to foreign adversaries. Furthermore, the manufacturing of UAS involves combining several critical components, including advanced manufacturing techniques, artificial intelligence, microelectronic components, and multi-spectral sensors. The Nation's capability to produce UAS and certain critical UAS components domestically is critical for national defense and the security and strength of our defense industrial base.
It is the policy of the United States, therefore, to prevent the use of taxpayer dollars to procure UAS that present unacceptable risks and are manufactured by, or contain software or critical electronic components from, foreign adversaries, and to encourage the use of domestically produced UAS.
(i) directly procuring or indirectly procuring through a third party, such as a contractor, a covered UAS;
(ii) providing Federal financial assistance (e.g., through award of a grant) that may be used to procure a covered UAS;
(iii) entering into, or renewing, a contract, order, or other commitment for the procurement of a covered UAS; or
(iv) otherwise providing Federal funding for the procurement of a covered UAS.
(b) After conducting the review described in subsection (a) of this section, the heads of all agencies shall each submit a report to the Director of the Office of Management and Budget identifying any authority to take the actions outlined in subsections (a)(i) through (iv) of this section.
(b) Within 180 days of the date of this order, the Director of National Intelligence, in consultation with the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Science and Technology Policy, and the heads of other agencies, as appropriate, shall review the reports required by subsection (a) of this section and submit a report to the President assessing the security risks posed by the existing Federal UAS fleet and outlining potential steps that could be taken to mitigate these risks, including, if warranted, discontinuing all Federal use of covered UAS and the expeditious removal of UAS from Federal service.
(b) The Director of the Office of Management and Budget shall work with the heads of all agencies to identify possible sources of funding to replace covered UAS in the Federal fleet in future submissions of the President's Budget request.
(a) The term "adversary country" means the Democratic People's Republic of Korea, the Islamic Republic of Iran, the People's Republic of China, the Russian Federation, or, as determined by the Secretary of Commerce, any other foreign nation, foreign area, or foreign non-government entity engaging in long-term patterns or serious instances of conduct significantly adverse to the national or economic security of the United States.
(b) The term "covered UAS" means any UAS that:
(i) is manufactured, in whole or in part, by an entity domiciled in an adversary country;
(ii) uses critical electronic components installed in flight controllers, ground control system processors, radios, digital transmission devices, cameras, or gimbals manufactured, in whole or in part, in an adversary country;
(iii) uses operating software (including cell phone or tablet applications, but not cell phone or tablet operating systems) developed, in whole or in part, by an entity domiciled in an adversary country;
(iv) uses network connectivity or data storage located outside the United States, or administered by any entity domiciled in an adversary country; or
(v) contains hardware and software components used for transmitting photographs, videos, location information, flight paths, or any other data collected by the UAS manufactured by an entity domiciled in an adversary country.
(c) The term "critical electronic component" means any electronic device that stores, manipulates, or transfers digital data. The term critical electronic component does not include, for example, passive electronics such as resistors, and non-data transmitting motors, batteries, and wiring.
(d) The term "entity" means a partnership, association, trust, joint venture, corporation, government, group, subgroup, other organization, or person.
(e) The term "Intelligence Community" has the same meaning set forth for that term in section 3003(4) of title 50, United States Code.
(f) The term "National Airspace System" (NAS) means the common network of United States airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. The term also includes system components shared jointly by the Departments of Defense, Transportation, and Homeland Security.
(g) The term "Unmanned Aircraft Systems" (UAS) means any unmanned aircraft, and the associated elements that are required for the pilot or system operator to operate safely and efficiently in the NAS, including communication links, the components that control the unmanned aircraft, and all critical electronic components. The term UAS does not include any separate communication device, such as a cellular phone or tablet, designed to perform independently of a UAS system, which may be incorporated into the operation of a UAS.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
Ex. Ord. No. 14063. Use of Project Labor Agreements for Federal Construction Projects
Ex. Ord. No. 14063, Feb. 4, 2022, 87 F.R. 7363, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to promote economy and efficiency in the administration and completion of Federal construction projects, it is hereby ordered that:
(b) Project labor agreements are often effective in preventing these problems from developing because they provide structure and stability to large-scale construction projects. Such agreements avoid labor-related disruptions on projects by using dispute-resolution processes to resolve worksite disputes and by prohibiting work stoppages, including strikes and lockouts. They secure the commitment of all stakeholders on a construction site that the project will proceed efficiently without unnecessary interruptions. They also advance the interests of project owners, contractors, and subcontractors, including small businesses. For these reasons, owners and contractors in both the public and private sector routinely use project labor agreements, thereby reducing uncertainties in large-scale construction projects. The use of project labor agreements is fully consistent with the promotion of small business interests.
(c) Accordingly, it is the policy of the Federal Government for agencies to use project labor agreements in connection with large-scale construction projects to promote economy and efficiency in Federal procurement.
(a) "Labor organization" means a labor organization as defined in 29 U.S.C. 152(5) of which building and construction employees are members, as described in 29 U.S.C. 158(f).
(b) "Construction" means construction, reconstruction, rehabilitation, modernization, alteration, conversion, extension, repair, or improvement of buildings, structures, highways, or other real property.
(c) "Large-scale construction project" means a Federal construction project within the United States for which the total estimated cost of the construction contract to the Federal Government is $35 million or more. The Federal Acquisition Regulatory Council (FAR Council), in consultation with the Council of Economic Advisers, may adjust this threshold based on inflation using the process at 41 U.S.C. 1908.
(d) "Agency" means an executive department or agency, including an independent establishment subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A).
(e) "Project labor agreement" means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f).
(a) bind all contractors and subcontractors on the construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;
(b) allow all contractors and subcontractors on the construction project to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;
(c) contain guarantees against strikes, lockouts, and similar job disruptions;
(d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement;
(e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and
(f) fully conform to all statutes, regulations, Executive Orders, and Presidential Memoranda.
(a) Requiring a project labor agreement on the project would not advance the Federal Government's interests in achieving economy and efficiency in Federal procurement. Such a finding shall be based on the following factors:
(i) The project is of short duration and lacks operational complexity;
(ii) The project will involve only one craft or trade;
(iii) The project will involve specialized construction work that is available from only a limited number of contractors or subcontractors;
(iv) The agency's need for the project is of such an unusual and compelling urgency that a project labor agreement would be impracticable; or
(v) The project implicates other similar factors deemed appropriate in regulations or guidance issued pursuant to section 8 of this order.
(b) Based on an inclusive market analysis, requiring a project labor agreement on the project would substantially reduce the number of potential bidders so as to frustrate full and open competition.
(c) Requiring a project labor agreement on the project would otherwise be inconsistent with statutes, regulations, Executive Orders, or Presidential Memoranda.
(b) On a quarterly basis, agencies shall report to the Office of Management and Budget (OMB) on their use of project labor agreements on large-scale construction projects and on the exceptions granted under section 5 of this order.
(b) The Director of OMB shall, to the extent permitted by law, issue guidance to implement the requirements of sections 5 and 6 of this order.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
§3901. Contracts awarded using procedures other than sealed-bid procedures
(a)
(b)
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3774; Pub. L. 115–232, div. A, title VIII, §836(b)(16), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3901 | 41:254(a). | June 30, 1949, ch. 288, title III, §304(a), 63 Stat. 395; Pub. L. 98–369, div. B, title VII, §2714(a)(3)(A), (B), July 18, 1984, 98 Stat. 1184; Pub. L. 103–355, title IV, §4103(c), title VIII, §8204(b), Oct. 13, 1994, 108 Stat. 3341, 3396. |
In subsection (b)(2), the words "in its discretion" are omitted as unnecessary.
Editorial Notes
Amendments
2018—Subsec. (b)(3). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§3902. Severable services contracts for periods crossing fiscal years
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3774.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3902 | 41:253l. | June 30, 1949, ch. 288, title III, §303L, as added Pub. L. 103–355, title I, §1073, Oct. 13, 1994, 108 Stat. 3271, as amended Pub. L. 104–106, title XLIII, §4321(a)(1), Feb. 10, 1996, 110 Stat. 671. |
Statutory Notes and Related Subsidiaries
Severable Services and Multiyear Contract Authority of Judicial Entities
Pub. L. 113–76, div. E, title III, §306, Jan. 17, 2014, 128 Stat. 203, provided that: "The Supreme Court of the United States, the Federal Judicial Center, and the United States Sentencing Commission are hereby authorized, now and hereafter, to enter into contracts for the acquisition of severable services for a period that begins in one fiscal year and ends in the next fiscal year and to enter into contracts for multiple years for the acquisition of property and services, to the same extent as executive agencies under the authority of 41 U.S.C. sections 3902 and 3903, respectively."
§3903. Multiyear contracts
(a)
(b)
(1) funds are available and obligated for the contract, for the full period of the contract or for the first fiscal year in which the contract is in effect, and for the estimated costs associated with a necessary termination of the contract; and
(2) the executive agency determines that—
(A) the need for the property or services is reasonably firm and continuing over the period of the contract; and
(B) a multiyear contract will serve the best interests of the Federal Government by encouraging full and open competition or promoting economy in administration, performance, and operation of the agency's programs.
(c)
(d)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3774.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3903(a) | 41:254c(d) (1st sentence). | June 30, 1949, ch. 288, title III, §304B, as added Pub. L. 103–355, title I, §1072, Oct. 13, 1994, 108 Stat. 3270. |
| 3903(b) | 41:254c(a). | |
| 3903(c) | 41:254c(b). | |
| 3903(d) | 41:254c(c). | |
| 3903(e) | 41:254c(d) (last sentence). | |
| 3903(f) | 41:254c(e). |
§3904. Contract authority for severable services contracts and multiyear contracts
(a)
(b)
(c)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title.
(d)
(e)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent and under the same conditions as the head of an executive agency under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisition of property and services to the same extent and under the same conditions as executive agencies under the authority of section 3903 of this title.
(f)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title.
(g)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title.
(h)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisition of property and services under the authority of section 3903 of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3775.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3904(a) | 41:253l–1. | Pub. L. 105–18, title II, §7004, June 12, 1997, 111 Stat. 192. |
| 3904(b) | 41:253l–2. | Pub. L. 106–57, title II, §207, Sept. 29, 1999, 113 Stat. 423. |
| 3904(c) | 41:253l–3. | Pub. L. 106–554, §1(a)(2) [title I, §§101, 110], Dec. 21, 2000, 114 Stat. 2763A–100, 2763A–108. |
| 3904(d) | 41:253l–4. | |
| 3904(e) | 41:253l–5. | Pub. L. 108–7, div. H, title I, §§5, 1002, 1202, Feb. 20, 2003, 117 Stat. 350, 357, 373. |
| 3904(f) | 41:253l–6. | |
| 3904(g) | 41:253l–7. | |
| 3904(h) | 41:253l–8. | Pub. L. 108–72, §4, Aug. 15, 2003, 117 Stat. 889. |
In subsections (a)–(c) and (e)–(h), the words "procurement of severable services" are substituted for "acquisition of severable services" for consistency with 41:253l, restated as section 3902 of the revised title.
In subsection (c), the words "During fiscal year 2001 and any succeeding fiscal year" are omitted as obsolete.
In subsection (d), the words "Beginning on December 21, 2000, and hereafter" are omitted as obsolete.
In subsection (e), the text of 41:253l–5(b) is omitted as obsolete.
In subsection (f), the text of 41:253l–6(b) is omitted as obsolete.
In subsection (g), the text of 41:253l–7(b) is omitted as obsolete.
In subsection (h), the text of 41:253l–8(b) is omitted as obsolete.
§3905. Cost contracts
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3776.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3905(a) | 41:254(b) (1st sentence words before 1st comma). | June 30, 1949, ch. 288, title III, §304(b), 63 Stat. 395; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 103–355, title I, §1071, title IV, §4402(c), title X, §10005(e), Oct. 13, 1994, 108 Stat. 3270, 3349, 3408. |
| 3905(b) | 41:254(b) (1st sentence words after 1st comma). | |
| 3905(c) | 41:254(b) (last sentence words before semicolon). | |
| 3905(d) | 41:254(b) (last sentence words after semicolon). |
§3906. Cost-reimbursement contracts
(a)
(b)
(c)
(1) when and under what circumstances cost-reimbursement contracts are appropriate;
(2) the acquisition plan findings necessary to support a decision to use cost-reimbursement contracts; and
(3) the acquisition workforce resources necessary to award and manage cost-reimbursement contracts.
(d)
(1)
(2)
(A) the total number and value of contracts awarded and orders issued during the covered fiscal year;
(B) the total number and value of cost-reimbursement contracts awarded and orders issued during the covered fiscal year; and
(C) an assessment of the effectiveness of the regulations promulgated pursuant to subsection (b) in ensuring the appropriate use of cost-reimbursement contracts.
(3)
(A)
(B)
(e)
(1) the Committee on Oversight and Government Reform of the House of Representatives;
(2) the Committee on Homeland Security and Governmental Affairs of the Senate;
(3) the Committees on Appropriations of the House of Representatives and the Senate; and
(4) in the case of the Department of Defense and the Department of Energy, the Committees on Armed Services of the Senate and the House of Representatives.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3777.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3906 | 41:254 note. | Pub. L. 110–417, [div. A], title VIII, §864(a), (b), (d), (e), (f)(2), (g), Oct. 14, 2008, 122 Stat. 4549. |
In subsection (b), the words "Not later than 270 days after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall address" are substituted for "shall be revised to address" to reflect the permanence of the provision.
In subsection (d), the words "Subject to subsection (f)" are omitted as unnecessary.
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Amendment of Federal Acquisition Regulation
Pub. L. 111–350, §6(f)(5), Jan. 4, 2011, 124 Stat. 3855, provided that: "The Federal Acquisition Regulation shall be amended to meet the requirements of section 3906(b) of title 41, United States Code, not later than 270 days after October 14, 2008."
CHAPTER 41—TASK AND DELIVERY ORDER CONTRACTS
§4101. Definitions
In this chapter:
(1)
(A) does not procure or specify a firm quantity of property (other than a minimum or maximum quantity); and
(B) provides for the issuance of orders for the delivery of property during the period of the contract.
(2)
(A) does not procure or specify a firm quantity of services (other than a minimum or maximum quantity); and
(B) provides for the issuance of orders for the performance of tasks during the period of the contract.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3778.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4101 | 41:253k. | June 30, 1949, ch. 288, title III, §303K, as added Pub. L. 103–355, title I, §1054(a), Oct. 13, 1994, 108 Stat. 3265. |
§4102. Authorities or responsibilities not affected
This chapter does not modify or supersede, and is not intended to impair or restrict, authorities or responsibilities under sections 1101 to 1104 of title 40.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3778.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4102 | 41:253h note. | Pub. L. 103–355, §1054(b), Oct. 13, 1994, 108 Stat. 3265. |
The text of section 1054(b)(1) of the Federal Acquisition Streamlining Act of 1994 (Pub. L. 103–355, 41:253h note) is omitted as obsolete.
§4103. General authority
(a)
(b)
(1) the period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option;
(2) the maximum quantity or dollar value of the services or property to be procured under the contract; and
(3) a statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract.
(c)
(d)
(1)
(A) to award a single task or delivery order contract; or
(B) if the solicitation states that the head of the executive agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to 2 or more sources.
(2)
(3)
(A)
(i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work;
(ii) the contract provides only for firm, fixed price task orders or delivery orders for—
(I) products for which unit prices are established in the contract; or
(II) services for which prices are established in the contract for the specific tasks to be performed;
(iii) only one source is qualified and capable of performing the work at a reasonable price to the Federal Government; or
(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.
(B)
(4)
(A) a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property under paragraph (1)(B); and
(B) criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government.
(e)
(f)
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3778.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4103 | 41:253h. | June 30, 1949, ch. 288, title III, §303H, as added Pub. L. 103–355, title I, §1054(a), Oct. 13, 1994, 108 Stat. 3261; Pub. L. 110–181, title VIII, §843(b)(1), Jan. 28, 2008, 122 Stat. 238. |
In subsection (a), the words "(as defined in section 253k of this title)" are omitted as unnecessary.
§4104. Guidance on use of task and delivery order contracts
(a)
(b)
(1) the appropriate use of Government-wide and other multiagency contracts entered into in accordance with this chapter and chapter 245 of title 10; and
(2) steps that agencies should take in entering into and administering multiple award task and delivery order contracts to ensure compliance with the requirement in—
(A) section 11312 of title 40 for capital planning and investment control in purchases of information technology products and services;
(B) section 4106(c) of this title and section 3406(c) of title 10 to ensure that all contractors are afforded a fair opportunity to be considered for the award of task and delivery orders; and
(C) section 4106(e) of this title and section 3406(e) of title 10 for a statement of work in each task or delivery order issued that clearly specifies all tasks to be performed or property to be delivered under the order.
(c)
(1) the administration of the program by the Administrator of General Services; and
(2) the ordering and program practices followed by Federal customer agencies in using schedules established under the program.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3780; Pub. L. 117–81, div. A, title XVII, §1702(h)(14), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4104 | 41:253h note. | Pub. L. 106–65, div. A, title VIII, §804, Oct. 5, 1999, 113 Stat. 704. |
In this section, the text of section 804(d) of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106–65, 41:253h note) is omitted as obsolete.
In subsection (a), the words "Not later than 180 days after the date of the enactment of this Act" and "be revised to" are omitted as obsolete.
In subsection (b)(1), the words "this chapter and sections 2304a to 2304d of title 10" are substituted for "the provisions of law referred to in that subsection" for clarity.
Editorial Notes
Amendments
2021—Subsecs. (a), (b)(1). Pub. L. 117–81, §1702(h)(14)(A), (B)(i), substituted "chapter 245" for "sections 2304a to 2304d".
Subsec. (b)(2)(B). Pub. L. 117–81, §1702(h)(14)(B)(ii), substituted "section 3406(c)" for "section 2304c(b)".
Subsec. (b)(2)(C). Pub. L. 117–81, §1702(h)(14)(B)(iii), substituted "section 3406(e)" for "section 2304c(c)".
§4105. Advisory and assistance services
(a)
(b)
(1)
(2)
(c)
(d)
(e)
(1)
(2)
(f)
(1)
(2)
(A) provide for a multiple award authorized under paragraph (1); and
(B) include a statement that the head of the executive agency may also elect to award only one task order contract if the head of the executive agency determines in writing that only one of the offerors is capable of providing the services required at the level of quality required.
(3)
(g)
(1)
(2)
(3)
(h)
(1)
(A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the initial contract was entered into; and
(B) the extension is necessary to ensure continuity of the receipt of services pending the award of, and commencement of performance under, the follow-on contract.
(2)
(i)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3780.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4105(a) | 41:253i(i). | June 30, 1949, ch. 288, title III, §303I, as added Pub. L. 103–355, title I, §1054(a), Oct. 13, 1994, 108 Stat. 3262. |
| 4105(b) | 41:253i(a). | |
| 4105(c)(1) | 41:253i(b). | |
| 4105(c)(2) | 41:253i note. | Pub. L. 109–364, div. A, title VIII, §834(b), (c) (related to (b)), Oct. 17, 2006, 120 Stat. 2333. |
| 4105(d) | 41:253i(c). | |
| 4105(e) | 41:253i(d). | |
| 4105(f) | 41:253i(e). | |
| 4105(g) | 41:253i(f). | |
| 4105(h) | 41:253i(g). | |
| 4105(i) | 41:253i(h). |
In subsection (b)(1), the words "(as defined in section 253k of this title)" are omitted as unnecessary.
In subsection (c)(2)(C), the words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Reform" on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007).
Senate Revision Amendment
Senate amendment to the bill effectively struck out subsec. (c)(2) and redesignated subsec. (c)(1) as (c). See S. Amdt. 4726 (111th Cong.), 156 Cong. Rec. 18683 (2010).
§4106. Orders
(a)
(b)
(1) A separate notice for the order under section 1708 of this title or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
(2) Except as provided in subsection (c), a competition (or a waiver of competition approved in accordance with section 3304(e) of this title) that is separate from that used for entering into the contract.
(c)
(1) the executive agency's need for the services or property ordered is of such unusual urgency that providing the opportunity to all of those contractors would result in unacceptable delays in fulfilling that need;
(2) only one of those contractors is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;
(3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or
(4) it is necessary to place the order with a particular contractor to satisfy a minimum guarantee.
(d)
(1) a notice of the task or delivery order that includes a clear statement of the executive agency's requirements;
(2) a reasonable period of time to provide a proposal in response to the notice;
(3) disclosure of the significant factors and subfactors, including cost or price, that the executive agency expects to consider in evaluating such proposals, and their relative importance;
(4) in the case of an award that is to be made on a best value basis, a written statement documenting—
(A) the basis for the award; and
(B) the relative importance of quality and price or cost factors; and
(5) an opportunity for a post-award debriefing consistent with the requirements of section 3704 of this title.
(e)
(f)
(1)
(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
(B) a protest of an order valued in excess of $10,000,000.
(2)
(g)
(1)
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3782; Pub. L. 111–383, div. A, title X, §1075(f)(5)(B), Jan. 7, 2011, 124 Stat. 4376; Pub. L. 112–81, div. A, title VIII, §813, Dec. 31, 2011, 125 Stat. 1491; Pub. L. 114–260, §2, Dec. 14, 2016, 130 Stat. 1361; Pub. L. 114–328, div. A, title VIII, §835(b), Dec. 23, 2016, 130 Stat. 2285; Pub. L. 116–92, div. A, title VIII, §826, Dec. 20, 2019, 133 Stat. 1491.)
Amendment Not Shown in Text
This section was derived from section 253j of former Title 41, Public Contracts, which was amended by Pub. L. 110–181, div. A, title VIII, §843(b)(2)(C), Jan. 28, 2008, 122 Stat. 239, to add subsec. (e), from which subsec. (f) of this section was derived, prior to being repealed and reenacted as this section by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. The directory language of section 843(b)(2)(C) of Pub. L. 110–181 was amended by Pub. L. 111–383, div. A, title X, §1075(f)(5)(B), Jan. 7, 2011, 124 Stat. 4376. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 843(b)(2)(C) of Pub. L. 110–181 was amended by striking "paragraph (1)" and inserting "subparagraph (A)".
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4106(a) | 41:253j(g). | June 30, 1949, ch. 288, title III, §303J, as added Pub. L. 103–355, title I, §1054(a), Oct. 13, 1994, 108 Stat. 3264; Pub. L. 110–181, div. A, title VIII, §843(b)(2), Jan. 28, 2008, 122 Stat. 238. |
| 4106(b) | 41:253j(a). | |
| 4106(c) | 41:253j(b). | |
| 4106(d) | 41:253j(d). | |
| 4106(e) | 41:253j(c). | |
| 4106(f) | 41:253j(e). | |
| 4106(g) | 41:253j(f). |
In subsection (g)(2), the words "advocate for competition" are substituted for "competition advocate" for consistency with section 1705 of the revised title.
Editorial Notes
Amendments
2019—Subsec. (c). Pub. L. 116–92 substituted "the micro-purchase threshold under section 1902 of this title" for "$2,500" in introductory provisions.
2016—Subsec. (f)(3). Pub. L. 114–260 and Pub. L. 114–328 amended subsec. (f) identically by striking out par. (3). Text read as follows: "Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016."
2011—Subsec. (f)(3). Pub. L. 112–81 amended par. (3) generally. Prior to amendment, text read as follows: "This subsection shall be in effect for three years, beginning on the date that is 120 days after January 28, 2008."
Statutory Notes and Related Subsidiaries
Postaward Explanations for Unsuccessful Offerors for Certain Contracts
Pub. L. 116–92, div. A, title VIII, §874, Dec. 20, 2019, 133 Stat. 1527, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Federal Acquisition Regulation shall be revised to require that with respect to an offer for a task order or delivery order in an amount greater than the simplified acquisition threshold (as defined in section 134 of title 41, United States Code) and less than or equal to $5,500,000 issued under an indefinite delivery-indefinite quantity contract, the contracting officer for such contract shall, upon written request from an unsuccessful offeror, provide a brief explanation as to why such offeror was unsuccessful that includes a summary of the rationale for the award and an evaluation of the significant weak or deficient factors in the offeror's offer."
CHAPTER 43—ALLOWABLE COSTS
§4301. Definitions
In this chapter:
(1)
(2)
(3)
(4)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3784; Pub. L. 115–232, div. A, title VIII, §836(b)(17), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4301(1) | 41:256(m)(1). | June 30, 1949, ch. 288, title III, §306(m), as added Pub. L. 105–85, title VIII, §808(b)(2), Nov. 18, 1997, 111 Stat. 1836; Pub. L. 105–261, title VIII, §804(b), Oct. 17, 1998, 112 Stat. 2083. |
| 4301(2) | 41:256(l)(1). | June 30, 1949, ch. 288, title III, §306(l)(1), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3315. |
| 4301(3) | 41:256(m)(3). | |
| 4301(4) | 41:256(m)(2). |
Editorial Notes
Amendments
2018—Par. (2). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§4302. Adjustment of threshold amount of covered contract
Effective on October 1 of each year that is divisible by 5, the amount set forth in section 4301(2) of this title shall be adjusted to the equivalent amount in constant fiscal year 1994 dollars. An adjusted amount that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. If an amount is evenly divisible by $25,000 but is not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3784.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4302 | 41:256(l)(2). | June 30, 1949, ch. 288, title III, §306(l)(2), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3315. |
§4303. Effect of submission of unallowable costs
(a)
(b)
(1)
(A) the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus
(B) interest (to be computed based on provisions in the Federal Acquisition Regulation) to compensate the Federal Government for the use of the amount which a contractor has been paid in excess of the amount to which the contractor was entitled.
(2)
(c)
(1) the contractor withdraws the proposal before the formal initiation of an audit of the proposal by the Federal Government and resubmits a revised proposal;
(2) the amount of unallowable costs subject to the penalty is insignificant; or
(3) the contractor demonstrates, to the contracting officer's satisfaction, that—
(A) it has established appropriate policies and personnel training and an internal control and review system that provide assurances that unallowable costs subject to penalties are precluded from being included in the contractor's proposal for settlement of indirect costs; and
(B) the unallowable costs subject to the penalty were inadvertently incorporated into the proposal.
(d)
(1) shall be considered a final decision for the purposes of section 7103 of this title; and
(2) is appealable in the manner provided in section 7104(a) of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3784.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4303(a) | 41:256(a). | June 30, 1949, ch. 288, title III, §306(a)–(d), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3309. |
| 4303(b) | 41:256(b). | |
| 4303(c) | 41:256(c). | |
| 4303(d) | 41:256(d). |
In subsection (a), the words "(referred to in section 421(c)(1) of this title)" are omitted as unnecessary.
§4304. Specific costs not allowable
(a)
(1) Costs of entertainment, including amusement, diversion, and social activities, and any costs directly associated with those costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities).
(2) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress, a State legislature, or a legislative body of a political subdivision of a State.
(3) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the Federal Government where the contractor is found liable or had pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of a false certification).
(4) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance those payments in accordance with applicable provisions of the Federal Acquisition Regulation.
(5) Costs of membership in any social, dining, or country club or organization.
(6) Costs of alcoholic beverages.
(7) Contributions or donations, regardless of the recipient.
(8) Costs of advertising designed to promote the contractor or its products.
(9) Costs of promotional items and memorabilia, including models, gifts, and souvenirs.
(10) Costs for travel by commercial aircraft that exceed the amount of the standard commercial fare.
(11) Costs incurred in making any payment (commonly known as a "golden parachute payment") that is—
(A) in an amount in excess of the normal severance pay paid by the contractor to an employee on termination of employment; and
(B) paid to the employee contingent on, and following, a change in management control over, or ownership of, the contractor or a substantial portion of the contractor's assets.
(12) Costs of commercial insurance that protects against the costs of the contractor for correction of the contractor's own defects in materials or workmanship.
(13) Costs of severance pay paid by the contractor to foreign nationals employed by the contractor under a service contract performed outside the United States, to the extent that the amount of severance pay paid in any case exceeds the amount paid in the industry involved under the customary or prevailing practice for firms in that industry providing similar services in the United States, as determined under the Federal Acquisition Regulation.
(14) Costs of severance pay paid by the contractor to a foreign national employed by the contractor under a service contract performed in a foreign country if the termination of the employment of the foreign national is the result of the closing of, or the curtailment of activities at, a Federal Government facility in that country at the request of the government of that country.
(15) Costs incurred by a contractor or subcontractor, or personal service 1 contractor in connection with any criminal, civil, or administrative proceeding commenced by the Federal Government or a State, to the extent provided in section 4310 of this title.
(16) 2 Costs of compensation of any contractor employee for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds $625,000 adjusted annually for the U.S. Bureau of Labor Statistics Employment Cost Index for total compensation for private industry workers, by occupational and industry group not seasonally adjusted, except that the executive agency may establish exceptions for positions in the science, technology, engineering, mathematics, medical, and cybersecurity fields and other fields requiring unique areas of expertise upon a determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities.
(16) 2 Costs of compensation of contractor and subcontractor employees for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds $487,000 per year, adjusted annually to reflect the change in the Employment Cost Index for all workers, as calculated by the Bureau of Labor Statistics, except that the head of an executive agency may establish one or more narrowly targeted exceptions for scientists, engineers, or other specialists upon a determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities.
(b)
(1)
(A) the application of those provisions to that contract would adversely affect the continuation of a program, project, or activity that provides significant support services for employees of the executive agency posted outside the United States;
(B) the contractor has taken (or has established plans to take) appropriate actions within the contractor's control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals; and
(C) the payment of severance pay is necessary to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract or is necessary to comply with a collective bargaining agreement.
(2)
(A) that a waiver has been granted under paragraph (1) for the contract; or
(B) whether the executive agency will consider granting a waiver and, if the executive agency will consider granting a waiver, the criteria to be used in granting the waiver.
(3)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3785; Pub. L. 113–66, div. A, title VIII, §811(b), Dec. 26, 2013, 127 Stat. 806; Pub. L. 113–67, div. A, title VII, §702(a)(1), Dec. 26, 2013, 127 Stat. 1189; Pub. L. 114–261, §1(b)(2)(B), Dec. 14, 2016, 130 Stat. 1363.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4304 | 41:256(e). | June 30, 1949, ch. 288, title III, §306(e), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3310; Pub. L. 105–85, title VIII, §808(b)(1), Nov. 18, 1997, 111 Stat. 1836. |
Editorial Notes
Amendments
2016—Subsec. (a)(15). Pub. L. 114–261 inserted "or subcontractor, or personal service contractor" after "contractor".
2013—Subsec. (a)(16). Pub. L. 113–66 and Pub. L. 113–67 amended par. (16) generally. Prior to amendment, par. (16) read as follows: "Costs of compensation of senior executives of contractors for a fiscal year, regardless of the contract funding source, to the extent that the compensation exceeds the benchmark compensation amount determined applicable for the fiscal year by the Administrator under section 1127 of this title." See Effective Date of 2013 Amendment notes below.
Statutory Notes and Related Subsidiaries
Effective Date of 2013 Amendment
Pub. L. 113–67, div. A, title VII, §702(c), Dec. 26, 2013, 127 Stat. 1189, provided that: "This section [amending this section and former section 2324 of Title 10, Armed Forces, repealing section 1127 of this title, and enacting provisions set out as a note under this section] and the amendments made by this section shall apply only with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after the date of the enactment of this Act [Dec. 26, 2013]."
Pub. L. 113–66, div. A, title VIII, §811(d), Dec. 26, 2013, 127 Stat. 806, provided that: "The amendments made by this section [amending this section and former section 2324 of Title 10, Armed Forces, and repealing section 1127 of this title] shall apply with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after the date of the enactment of this Act [Dec. 26, 2013]."
Reports
Pub. L. 113–67, div. A, title VII, §702(d), Dec. 26, 2013, 127 Stat. 1189, provided that:
"(1)
"(A) the Committee on Armed Services of the Senate;
"(B) the Committee on Armed Services of the House of Representatives;
"(C) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(D) the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives;
"(E) the Committee on Appropriations of the Senate; and
"(F) the Committee on Appropriations of the House of Representatives.
"(2)
"(A) the total number of contractor employees, by executive agency, in the narrowly targeted exception positions described under subsection (a) during the preceding fiscal year;
"(B) the taxpayer-funded compensation amounts received by each contractor employee in a narrowly targeted exception position during such fiscal year; and
"(C) the duties and services performed by contractor employees in the narrowly targeted exception positions during such fiscal year."
Revision of Cost Principle Relating to Entertainment, Gift, and Recreation Costs for Contractor Employees
Pub. L. 103–355, title II, §2192, Oct. 13, 1994, 108 Stat. 3315, provided that:
"(a)
"(2) Not later than 90 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall amend the cost principle in the Federal Acquisition Regulation that is set out in section 31.205–14 of title 48, Code of Federal Regulations, relating to unallowability of entertainment costs—
"(A) by inserting in the cost principle a statement that costs made specifically unallowable under that cost principle are not allowable under any other cost principle; and
"(B) by striking out '(but see 31.205–1 and 31.205–13)'.
"(b)
"(1) The term 'employee' includes officers and directors of a contractor.
"(2) The term 'covered contract' has the meaning given such term in section 2324(l) of title 10, United States Code (as amended by section 2101(c) [2101(d)]), and section 306(l) of the Federal Property and Administrative Services Act of 1949 (as added by section 2151) [see 41 U.S.C. 4301(2)].
"(c)
Executive Documents
Ex. Ord. No. 13494. Economy in Government Contracting
Ex. Ord. No. 13494, Jan. 30, 2009, 74 F.R. 6101, as amended by Ex. Ord. No. 13517, §2, Oct. 30, 2009, 74 F.R. 57239, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., it is hereby ordered that:
(a) preparing and distributing materials;
(b) hiring or consulting legal counsel or consultants;
(c) holding meetings (including paying the salaries of the attendees at meetings held for this purpose); and
(d) planning or conducting activities by managers, supervisors, or union representatives during work hours.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
1 So in original. Probably should be "services".
2 So in original. Two pars. (16) have been enacted.
§4305. Required regulations
(a)
(b)
(1) Air shows.
(2) Membership in civic, community, and professional organizations.
(3) Recruitment.
(4) Employee morale and welfare.
(5) Actions to influence (directly or indirectly) executive branch action on regulatory and contract matters (other than costs incurred in regard to contract proposals pursuant to solicited or unsolicited bids).
(6) Community relations.
(7) Dining facilities.
(8) Professional and consulting services, including legal services.
(9) Compensation.
(10) Selling and marketing.
(11) Travel.
(12) Public relations.
(13) Hotel and meal expenses.
(14) Expense of corporate aircraft.
(15) Company-furnished automobiles.
(16) Advertising.
(17) Conventions.
(c)
(1)
(A) adequate documentation of those costs; and
(B) the opinion of the contract auditor on the allowability of those costs.
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3787.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4305(a) | 41:256(f)(1) (1st, 2d sentences). | June 30, 1949, ch. 288, title III, §306(f), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3312. |
| 4305(b) | 41:256(f)(1) (last sentence). | |
| 4305(c) | 41:256(f)(2)–(4). |
§4306. Applicability of regulations to subcontractors
The regulations referred to in sections 4304 and 4305(a) and (b) of this title shall require prime contractors of a covered contract, to the maximum extent practicable, to apply the provisions of those regulations to all subcontractors of the covered contract.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3788.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4306 | 41:256(g). | June 30, 1949, ch. 288, title III, §306(g), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
§4307. Contractor certification
(a)
(b)
(1) determines that it would be in the interest of the Federal Government to waive the certification; and
(2) states in writing the reasons for the determination and makes the determination available to the public.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3788.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4307 | 41:256(h). | June 30, 1949, ch. 288, title III, §306(h), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
§4308. Penalties for submission of cost known to be unallowable
The submission to an executive agency of a proposal for settlement of costs for any period after those costs have been accrued that includes a cost that is expressly specified by statute or regulation as being unallowable, with the knowledge that the cost is unallowable, is subject to section 287 of title 18 and section 3729 of title 31.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3788.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4308 | 41:256(i). | June 30, 1949, ch. 288, title III, §306(i), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
§4309. Burden of proof on contractor
In a proceeding before a board of contract appeals, the United States Court of Federal Claims, or any other Federal court in which the reasonableness of indirect costs for which a contractor seeks reimbursement from the Federal Government is in issue, the burden of proof is on the contractor to establish that those costs are reasonable.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3788.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4309 | 41:256(j). | June 30, 1949, ch. 288, title III, §306(j), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
§4310. Proceeding costs not allowable
(a)
(1)
(A) administrative and clerical expenses;
(B) the cost of legal services, including legal services performed by an employee of the contractor, subcontractor, or personal services contractor;
(C) the cost of the services of accountants and consultants retained by the contractor, subcontractor, or personal services contractor; and
(D) the pay of directors, officers, and employees of the contractor, subcontractor, or personal services contractor for time devoted by those directors, officers, and employees to the proceeding.
(2)
(3)
(b)
(1) relates to a violation of, or failure to comply with, a Federal or State statute or regulation or to any other activity described in section 4712(a)(1) of this title; and
(2) results in a disposition described in subsection (c).
(c)
(1) In a criminal proceeding, a conviction (including a conviction pursuant to a plea of nolo contendere) by reason of the violation or failure referred to in subsection (b).
(2) In a civil or administrative proceeding involving an allegation of fraud or similar misconduct, a determination of contractor, subcontractor, or personal services contractor liability on the basis of the violation or failure referred to in subsection (b).
(3) In any civil or administrative proceeding, the imposition of a monetary penalty or an order to take corrective action under section 4712 of this title by reason of the violation or failure referred to in subsection (b).
(4) A final decision to do any of the following, by reason of the violation or failure referred to in subsection (b):
(A) Debar or suspend the contractor, subcontractor, or personal services contractor.
(B) Rescind or void the contract, subcontract, or personal services contract.
(C) Terminate the contract, subcontract, or personal services contract for default.
(5) A disposition of the proceeding by consent or compromise if the disposition could have resulted in a disposition described in paragraph (1), (2), (3), or (4).
(d)
(e)
(1) a specific term or condition of the contract, subcontract, or personal services contract; or
(2) specific written instructions of the executive agency.
(f)
(1)
(2)
(A)
(B)
(3)
(A) the proceeding involves the same contractor, subcontractor, or personal services contractor misconduct alleged as the basis of another criminal, civil, or administrative proceeding; and
(B) the costs of the other proceeding are not allowable under subsection (b).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3789; Pub. L. 112–239, div. A, title VIII, §828(d), Jan. 2, 2013, 126 Stat. 1841; Pub. L. 114–261, §1(b)(2)(A), Dec. 14, 2016, 130 Stat. 1362.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4310(a) | 41:256(k)(6). | June 30, 1949, ch. 288, title III, §306(k), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
| 4310(b) | 41:256(k)(1). | |
| 4310(c) | 41:256(k)(2). | |
| 4310(d) | 41:256(k)(3). | |
| 4310(e) | 41:256(k)(4). | |
| 4310(f) | 41:256(k)(5). |
Editorial Notes
Amendments
2016—Pub. L. 114–261, §1(b)(2)(A)(i), (ii), inserted ", subcontractor, or personal services contractor" after "contractor" and ", subcontract, or personal services contract" after "contract" wherever appearing.
Subsec. (b)(1). Pub. L. 114–261, §1(b)(2)(A)(iii), inserted "or to any other activity described in section 4712(a)(1) of this title" after "statute or regulation".
2013—Subsec. (b). Pub. L. 112–239, §828(d)(1), substituted "commenced by the Federal Government, by a State, or by a contractor or grantee employee submitting a complaint under section 4712 of this title" for "commenced by the Federal Government or a State".
Subsec. (c)(3). Pub. L. 112–239, §828(d)(2), substituted "the imposition of a monetary penalty or an order to take corrective action under section 4712 of this title" for "the imposition of a monetary penalty".
CHAPTER 45—CONTRACT FINANCING
Editorial Notes
Amendments
2018—Pub. L. 115–232, div. A, title VIII, §836(b)(18)(B)(ii), Aug. 13, 2018, 132 Stat. 1864, substituted "Payments for commercial products and commercial services" for "Payments for commercial items" in item 4505.
§4501. Authority of executive agency
An executive agency may—
(1) make advance, partial, progress or other payments under contracts for property or services made by the agency; and
(2) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3790.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4501 | 41:255(a). | June 30, 1949, ch. 288, title III, §305(a), 63 Stat. 396; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, §2051(a)(2), (c), Oct. 13, 1994, 108 Stat. 3304. |
Statutory Notes and Related Subsidiaries
Relationship to Prompt Payment Requirements
Pub. L. 103–355, title II, §2051(f), Oct. 13, 1994, 108 Stat. 3306, provided that: "The amendments made by this section [see Tables for classification] are not intended to impair or modify procedures required by the provisions of chapter 39 of title 31, United States Code, and the regulations issued pursuant to such provisions of law (as such procedures are in effect on the date of the enactment of this Act [Oct. 13, 1994]), except that the Government may accept payment terms offered by a contractor offering a commercial item."
§4502. Payment
(a)
(1) Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls.
(2) Accomplishment of events defined in the program management plan.
(3) Other quantifiable measures of results.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3791.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4502(a) | 41:255(b). | June 30, 1949, ch. 288, title III, §305(b), as added Pub. L. 103–355, title II, §2051(b), Oct. 13, 1994, 108 Stat. 3304. |
| 4502(b) | 41:255(c). | June 30, 1949, ch. 288, title III, §305(c), 63 Stat. 396; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, §2051(a)(3), (5), Oct. 13, 1994, 108 Stat. 3304. |
§4503. Security for advance payments
Advance payments under section 4501 of this title may be made only on adequate security and a determination by the agency head that to do so would be in the public interest. The security may be in the form of a lien in favor of the Federal Government on the property contracted for, on the balance in an account in which the payments are deposited, and on such of the property acquired for performance of the contract as the parties may agree. This lien shall be paramount to all other liens and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the Federal Government.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3791.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4503 | 41:255(d). | June 30, 1949, ch. 288, title III, §305(d), 63 Stat. 396; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, §2051(a)(4), (5), (d), Oct. 13, 1994, 108 Stat. 3304. |
§4504. Conditions for progress payments
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3791.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4504 | 41:255(e). | June 30, 1949, ch. 288, title III, §305(e), as added Pub. L. 103–355, title II, §2051(e), Oct. 13, 1994, 108 Stat. 3304, as amended Pub. L. 104–106, title XLIII, §4321(a)(4), Feb. 10, 1996, 110 Stat. 671. |
§4505. Payments for commercial products and commercial services
(a)
(b)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3791; Pub. L. 115–232, div. A, title VIII, §836(b)(18)(A), (B)(i), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4505 | 41:255(f). | June 30, 1949, ch. 288, title III, §305(f), as added Pub. L. 103–355, title II, §2051(e), Oct. 13, 1994, 108 Stat. 3304, as amended Pub. L. 104–106, title XLIII, §4321(a)(4), Feb. 10, 1996, 110 Stat. 671. |
Editorial Notes
Amendments
2018—Pub. L. 115–232, §836(b)(18)(B)(i), substituted "Payments for commercial products and commercial services" for "Payments for commercial items" in section catchline.
Subsecs. (a), (c). Pub. L. 115–232, §836(b)(18)(A), substituted "commercial products or commercial services" for "commercial items".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§4506. Action in case of fraud
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) review the determination of fraud on which the reduction or suspension is based; and
(2) transmit a recommendation to the head of the executive agency whether the suspension or reduction should continue.
(h)
(i)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3792.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4506 | 41:255(g). | June 30, 1949, ch. 288, title III, §305(g), as added Pub. L. 103–355, title II, §2051(e), Oct. 13, 1994, 108 Stat. 3305, as amended Pub. L. 104–106, title XLIII, §4321(a)(4), Feb. 10, 1996, 110 Stat. 671. |
CHAPTER 47—MISCELLANEOUS
Editorial Notes
Amendments
2019—Pub. L. 116–92, div. A, title XI, §1123(a)(2), Dec. 20, 2019, 133 Stat. 1612, added item 4714.
2018—Pub. L. 115–390, title II, §203(b), Dec. 21, 2018, 132 Stat. 5192, added item 4713.
2016—Pub. L. 114–261, §1(a)(3)(B), Dec. 14, 2016, 130 Stat. 1362, added item 4712 and struck out former item 4712 "Pilot program for enhancement of contractor protection from reprisal for disclosure of certain information".
2013—Pub. L. 112–239, div. A, title VIII, §828(a)(2), Jan. 2, 2013, 126 Stat. 1840, added item 4712.
§4701. Determinations and decisions
(a)
(1)
(2)
(3)
(b)
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3793.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4701 | 41:257. | June 30, 1949, ch. 288, title III, §307, 63 Stat. 396; Pub. L. 85–800, §5, Aug. 28, 1958, 72 Stat. 967; Pub. L. 89–343, §§3, 4, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 98–369, title VII, §2714(a)(4), July 18, 1984, 98 Stat. 1184; Pub. L. 104–106, title XLIII, §4321(e)(6), Feb. 10, 1996, 110 Stat. 675; Pub. L. 104–316, title I, §121(c), Oct. 19, 1996, 110 Stat. 3836. |
| 41:262. | June 30, 1949, ch. 288, title III, §312, as added Pub. L. 103–355, title I, §1553, Oct. 13, 1994, 108 Stat. 3300. |
§4702. Prohibition on release of contractor proposals
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3794.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4702(a) | 41:253b(m)(3). | June 30, 1949, ch. 288, title III, §303B(m), as added Pub. L. 104–201, title VIII, §821(b), Sept. 23, 1996, 110 Stat. 2609. |
| 4702(b) | 41:253b(m)(1). | |
| 4702(c) | 41:253b(m)(2). |
In subsection (b), the words "Except as provided in paragraph (2)" are omitted as unnecessary.
§4703. Validation of proprietary data restrictions
(a)
(1) a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction the contractor or subcontractor asserts on the right of the Federal Government to use the data; and
(2) the contracting officer may review the validity of a restriction the contractor or subcontractor asserts under the contract on the right of the Federal Government to use technical data furnished to the Federal Government under the contract if the contracting officer determines that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the Federal Government would make it impracticable to procure the item competitively at a later time.
(b)
(1) the grounds for challenging the asserted restriction; and
(2) the requirement for a response within 60 days justifying the current validity of the asserted restriction.
(c)
(d)
(e)
(1)
(2)
(f)
(g)
(1)
(A) the restriction is cancelled; and
(B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor, as appropriate, is liable to the Federal Government for payment of the cost to the Federal Government of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the Federal Government in challenging the asserted restriction, unless special circumstances would make the payment unjust.
(2)
(A) continues to be bound by the restriction; and
(B) is liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the Federal Government is found not to be made in good faith.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3794.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4703(a) | 41:253d(a). | June 30, 1949, ch. 288, title III, §303D, formerly §303E, as added Pub. L. 98–577, title II, §203(a), Oct. 30, 1984, 98 Stat. 3071; renumbered §303D, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
| 4703(b) | 41:253d(b). | |
| 4703(c) | 41:253d(c) (1st sentence). | |
| 4703(d) | 41:253d(c) (last sentence). | |
| 4703(e) | 41:253d(d). | |
| 4703(f) | 41:253d(e). | |
| 4703(g) | 41:253d(f). |
§4704. Prohibition of contractors limiting subcontractor sales directly to Federal Government
(a)
(1) enter into an agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the Federal Government of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or
(2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales described in paragraph (1) to the Federal Government.
(b)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3795; Pub. L. 115–232, div. A, title VIII, §836(b)(19), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4704(a) | 41:253g(a). | June 30, 1949, ch. 288, title III, §303G(a), (b), formerly §303H, as added Pub. L. 98–577, title II, §206(a), Oct. 30, 1984, 98 Stat. 3073; renumbered §303G, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
| 4704(b) | 41:253g(b). | |
| 4704(c) | 41:253g(c). | June 30, 1949, ch. 288, title III, §303G(c), as added Pub. L. 103–355, title IV, §4103(b), Oct. 13, 1994, 108 Stat. 3341. |
| 4704(d) | 41:253g(d). | June 30, 1949, ch. 288, title III, §303G(d), as added Pub. L. 103–355, title VIII, §8204(a), Oct. 13, 1994, 108 Stat. 3396. |
Editorial Notes
Amendments
2018—Subsec. (d). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items" in two places.
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§4705. Protection of contractor employees from reprisal for disclosure of certain information
(a)
(1)
(2)
(3)
(b)
(c)
(d)
(1)
(A)
(B)
(C)
(2)
(3)
(e)
(1) authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (b); or
(2) modify or derogate from a right or remedy otherwise available to the employee.
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3796; Pub. L. 112–239, div. A, title VIII, §828(c), Jan. 2, 2013, 126 Stat. 1841; Pub. L. 117–286, §4(b)(72), Dec. 27, 2022, 136 Stat. 4351.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4705(a) | 41:265(e). | June 30, 1949, ch. 288, title III, §315, as added Pub. L. 103–355, title VI, §6006, Oct. 13, 1994, 108 Stat. 3365; Pub. L. 104–106, title XLIII, §4321(e)(8), Feb. 10, 1996, 110 Stat. 675. |
| 4705(b) | 41:265(a). | |
| 4705(c) | 41:265(b). | |
| 4705(d) | 41:265(c). | |
| 4705(e) | 41:265(d). |
In subsection (d)(2), the word "contractor" is substituted for "person" for clarity and for consistency with subsection (d)(1).
Editorial Notes
References in Text
Section 4712 of this title, referred to in subsec. (f), formerly referred to a pilot program in the section catchline and contained a subsec. (i) which provided that section 4712 would be in effect for a specified four-year period. The section catchline was amended and subsec. (i) was struck out by Pub. L. 114–261, §1(a)(3)(A), Dec. 14, 2016, 130 Stat. 1362.
Amendments
2022—Subsec. (a)(3). Pub. L. 117–286 substituted "chapter 4 of title 5." for "the Inspector General Act of 1978 (5 U.S.C. App.)."
2013—Subsec. (f). Pub. L. 112–239 added subsec. (f).
1 See References in Text note below.
§4706. Examination of facilities and records of contractor
(a)
(b)
(1)
(A) a contractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable contract, or any combination of those contracts, the executive agency makes under this division; and
(B) a subcontractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable subcontract, or any combination of those subcontracts, under a contract referred to in subparagraph (A).
(2)
(A) the proposal for the contract or subcontract;
(B) the discussions conducted on the proposal;
(C) pricing of the contract or subcontract; or
(D) performance of the contract or subcontract.
(c)
(1)
(2)
(3)
(4)
(d)
(1)
(2)
(A) the contractor or subcontractor is—
(i) the government of a foreign country or an agency of that government; or
(ii) precluded by the laws of the country involved from making its records available for examination; and
(B) the executive agency determines, after taking into account the price and availability of the property and services from United States sources, that the public interest would be best served by not applying paragraph (1).
(3)
(e)
(f)
(g)
(1) Contracts for utility services at rates not exceeding those established to apply uniformly to the public, plus any applicable reasonable connection charge.
(2) A contract or subcontract that is not greater than the simplified acquisition threshold.
(h)
(i)
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3797; Pub. L. 117–286, §4(b)(73), Dec. 27, 2022, 136 Stat. 4351.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4706(a) | 41:254d(i). | June 30, 1949, ch. 288, title III, §304C(a)(1), (b), (g)–(i), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3318, 3320. |
| 4706(b)(1) | 41:254d(a)(1). | |
| 4706(b)(2) | 41:254d(a)(2). | June 30, 1949, ch. 288, title III, §304C(a)(2), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3318; Pub. L. 104–106, title XLIII, §4321(e)(5), Feb. 10, 1996, 110 Stat. 675. |
| 4706(c) | 41:254d(b). | |
| 4706(d) | 41:254d(c). | June 30, 1949, ch. 288, title III, §304C(c), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3319; Pub. L. 110–417, title VIII, §871(a), Oct. 14, 2008, 122 Stat.4555. |
| 4706(e) | 41:254d(d). | June 30, 1949, ch. 288, title III, §304C(d), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3319; Pub. L. 104–201, title VIII, §808(b), Sept. 23, 1996, 110 Stat. 2607. |
| 4706(f) | 41:254d(e). | |
| 4706(g) | 41:254d(f). | June 30, 1949, ch. 288, title III, §304C(f), as added and amended Pub. L. 103–355, title II, §2251(a), title IV, §4103(d), Oct. 13, 1994, 108 Stat. 3320, 3341. |
| 4706(h) | 41:254d(g). | |
| 4706(i) | 41:254d(h). |
In subsection (c)(4), the words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Operations" on authority of section 1(a)(6) of Public Law 104–14 (2 U.S.C. note prec. 21), Rule X(1)(h) of the Rules of the House of Representatives, adopted by House Resolution No. 5 (106th Congress, January 6, 1999), and Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007). The words "Committee on Homeland Security and Governmental Affairs" are substituted for "Committee on Governmental Affairs" on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004).
Editorial Notes
Amendments
2022—Subsec. (c)(1). Pub. L. 117–286 substituted "section 403 or 415 of title 5" for "section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.)".
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
§4707. Remission of liquidated damages
When a contract made on behalf of the Federal Government by the head of a Federal agency, or by an authorized officer of the agency, includes a provision for liquidated damages for delay, the Secretary of the Treasury on recommendation of the head of the agency may remit any part of the damages as the Secretary of the Treasury believes is just and equitable.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3799.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4707 | 41:256a. | Sept. 5, 1950, ch. 849, §10(a), 64 Stat. 591; Pub. L. 104–316, title II, §202(u), Oct. 19, 1996, 110 Stat. 3845. |
§4708. Payment of reimbursable indirect costs in cost-type research and development contracts with educational institutions
A cost-type research and development contract (including a grant) with a university, college, or other educational institution may provide for payment of reimbursable indirect costs on the basis of predetermined fixed-percentage rates applied to the total of the reimbursable direct costs incurred or to an element of the total of the reimbursable direct costs incurred.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3799.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4708 | 41:254a. | Pub. L. 87–638, Sept. 5, 1962, 76 Stat. 437. |
The words "On and after September 5, 1962" are omitted as obsolete.
§4709. Implementation of electronic commerce capability
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4709 | 41:252c. | June 30, 1949, ch. 288, title III, §302C, as added Pub. L. 103–355, title IX, §9003, Oct. 13, 1994, 108 Stat. 3403; Pub. L. 105–85, title VIII, §850(f)(4)(A), Nov. 18, 1997, 111 Stat. 1850. |
§4710. Limitations on tiering of subcontractors
(a)
(b)
(1) require contractors to minimize the excessive use of subcontractors, or of tiers of subcontractors, that add no or negligible value; and
(2) ensure that neither a contractor nor a subcontractor receives indirect costs or profit on work performed by a lower-tier subcontractor to which the higher-tier contractor or subcontractor adds no or negligible value (but not to limit charges for indirect costs and profit based on the direct costs of managing lower-tier subcontracts).
(c)
(d)
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4710 | 41:254b note. | Pub. L. 110–417, [div. A], title VIII, §866, Oct. 14, 2008, 122 Stat. 4551. |
In subsection (b), the words "Not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The word "shall" is substituted for the words "shall be amended" to reflect the permanence of the provision.
§4711. Linking of award and incentive fees to acquisition outcomes
(a)
(b)
(c)
(1) ensure that all new contracts using award fees link the fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance);
(2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts;
(3) provide guidance on the circumstances in which contractor performance may be judged to be "excellent" or "superior" and the percentage of the available award fee which contractors should be paid for the performance;
(4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be "acceptable", "average", "expected", "good", or "satisfactory";
(5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract;
(6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods;
(7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the Federal Government;
(8) ensure that each executive agency—
(A) collects relevant data on award and incentive fees paid to contractors; and
(B) has mechanisms in place to evaluate the data on a regular basis;
(9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and
(10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials.
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4711 | 41:251 note. | Pub. L. 110–417, [div. A], title VIII, §867, Oct. 14, 2008, 122 Stat. 4551. |
In subsection (b), the words "Not later than 1 year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall provide" are substituted for "shall be amended to provide" to reflect the permanence of the provision.
§4712. Enhancement of contractor protection from reprisal for disclosure of certain information
(a)
(1)
(2)
(A) A Member of Congress or a representative of a committee of Congress.
(B) An Inspector General.
(C) The Government Accountability Office.
(D) A Federal employee responsible for contract or grant oversight or management at the relevant agency.
(E) An authorized official of the Department of Justice or other law enforcement agency.
(F) A court or grand jury.
(G) A management official or other employee of the contractor, subcontractor, grantee, subgrantee, or personal services contractor who has the responsibility to investigate, discover, or address misconduct.
(3)
(A) an employee who initiates or provides evidence of contractor, subcontractor, grantee, subgrantee, or personal services contractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract or grant shall be deemed to have made a disclosure covered by such paragraph; and
(B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.
(b)
(1)
(2)
(A)
(B)
(3)
(A) made with the consent of the person alleging the reprisal;
(B) made in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law; or
(C) necessary to conduct an investigation of the alleged reprisal.
(4)
(c)
(1)
(A) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to take affirmative action to abate the reprisal.
(B) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(C) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive agency.
(D) Consider disciplinary or corrective action against any official of the executive agency, if appropriate.
(2)
(3)
(4)
(5)
(6)
(7)
(d)
(e)
(f)
(2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor of an element of the intelligence community if such disclosure—
(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, grantee, subgrantee, or personal services contractor services provided to an element of the intelligence community.
(g)
(1) The term "abuse of authority" means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract or grant of such agency.
(2) The term "Inspector General" means an Inspector General appointed under chapter 4 of title 5 and any Inspector General that receives funding from, or has oversight over contracts or grants awarded for or on behalf of, the executive agency concerned.
(h)
(Added Pub. L. 112–239, div. A, title VIII, §828(a)(1), Jan. 2, 2013, 126 Stat. 1837; amended Pub. L. 113–66, div. A, title X, §1091(e), Dec. 26, 2013, 127 Stat. 876; Pub. L. 114–261, §1(a)(2), (3)(A), Dec. 14, 2016, 130 Stat. 1362; Pub. L. 116–260, div. U, title VIII, §801, Dec. 27, 2020, 134 Stat. 2297; Pub. L. 117–263, div. A, title VIII, §807(b), Dec. 23, 2022, 136 Stat. 2704; Pub. L. 117–286, §4(b)(74), Dec. 27, 2022, 136 Stat. 4351.)
Editorial Notes
Amendments
2022—Subsec. (a)(1). Pub. L. 117–263, §807(b)(1)(A), substituted "subgrantee," for "or subgrantee".
Subsec. (a)(2)(G). Pub. L. 117–263, §807(b)(1)(B), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (a)(3)(A). Pub. L. 117–263, §807(b)(1)(C), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (b)(1). Pub. L. 117–263, §807(b)(2), substituted "subgrantee, or personal services contractor concerned" for "or subgrantee concerned".
Subsec. (c)(1). Pub. L. 117–263, §807(b)(3)(A)(i), substituted "subgrantee, or personal services contractor concerned" for "or subgrantee concerned" in introductory provisions.
Subsec. (c)(1)(A). Pub. L. 117–263, §807(b)(3)(A)(ii), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (c)(1)(B). Pub. L. 117–263, §807(b)(3)(A)(iii), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (c)(1)(C). Pub. L. 117–263, §807(b)(3)(A)(iv), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (c)(1)(D). Pub. L. 117–263, §807(b)(3)(A)(v), added subpar. (D).
Subsec. (c)(2). Pub. L. 117–263, §807(b)(3)(B), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (d). Pub. L. 117–263, §807(b)(4), substituted "subgrantees, and personal services contractors" for "and subgrantees".
Subsec. (f)(2). Pub. L. 117–263, §807(b)(5), substituted "subgrantee, or personal services contractor" for "or subgrantee" in two places.
Subsec. (g)(2). Pub. L. 117–286 substituted "chapter 4 of title 5" for "the Inspector General Act of 1978".
2020—Subsec. (a)(2)(G). Pub. L. 116–260, §801(1), substituted "grantee, or subgrantee" for "or grantee".
Subsec. (a)(3)(A). Pub. L. 116–260, §801(2), substituted "contractor, subcontractor, grantee, or subgrantee" for "contractor, subcontractor, or grantee".
Subsec. (b)(1). Pub. L. 116–260, §801(3), substituted "contractor, subcontractor, grantee, or subgrantee" for "contractor or grantee".
Subsec. (c). Pub. L. 116–260, §801(4), substituted "contractor, subcontractor, grantee, or subgrantee" for "contractor or grantee" wherever appearing.
Subsec. (d). Pub. L. 116–260, §801(5), substituted "grantees, and subgrantees" for "and grantees".
Subsec. (f). Pub. L. 116–260, §801(6), substituted "grantee, or subgrantee" for "or grantee" in two places.
2016—Pub. L. 114–261, §1(a)(3)(A)(i), substituted "Enhancement" for "Pilot program for enhancement" in section catchline.
Subsec. (a)(1). Pub. L. 114–261, §1(a)(2), substituted "grantee, or subgrantee or personal services contractor" for "or grantee".
Subsec. (i). Pub. L. 114–261, §1(a)(3)(A)(ii), struck out subsec. (i). Text read as follows: "This section shall be in effect for the four-year period beginning on the date of that is 180 days after the date the enactment of this section."
2013—Subsec. (i). Pub. L. 113–66 inserted "that is 180 days after the date" before "the enactment".
Statutory Notes and Related Subsidiaries
Effective Date of 2013 Amendment
Pub. L. 112–239, div. A, title VIII, §828(b), Jan. 2, 2013, 126 Stat. 1840, provided that:
"(1)
"(A) all contracts and grants awarded on or after such date;
"(B) all task orders entered on or after such date pursuant to contracts awarded before, on, or after such date; and
"(C) all contracts awarded before such date that are modified to include a contract clause providing for the applicability of such amendments.
"(2)
"(3)
§4713. Authorities relating to mitigating supply chain risks in the procurement of covered articles
(a)
(b)
(1) obtaining a joint recommendation, in unclassified or classified form, from the chief acquisition officer and the chief information officer of the agency, or officials performing similar functions in the case of executive agencies that do not have such officials, which includes a review of any risk assessment made available by the executive agency identified under section 1323(a)(3) of this title, that there is a significant supply chain risk in a covered procurement;
(2) providing notice of the joint recommendation described in paragraph (1) to any source named in the joint recommendation advising—
(A) that a recommendation is being considered or has been obtained;
(B) to the extent consistent with the national security and law enforcement interests, of information that forms the basis for the recommendation;
(C) that, within 30 days after receipt of the notice, the source may submit information and argument in opposition to the recommendation; and
(D) of the procedures governing the consideration of the submission and the possible exercise of the authority provided in subsection (a);
(3) making a determination in writing, in unclassified or classified form, after considering any information submitted by a source under paragraph (2) and in consultation with the chief information security officer of the agency, that—
(A) use of the authority under subsection (a) is necessary to protect national security by reducing supply chain risk;
(B) less intrusive measures are not reasonably available to reduce such supply chain risk; and
(C) the use of such authorities will apply to a single covered procurement or a class of covered procurements, and otherwise specifies the scope of the determination; and
(4) providing a classified or unclassified notice of the determination made under paragraph (3) to the appropriate congressional committees and leadership that includes—
(A) the joint recommendation described in paragraph (1);
(B) a summary of any risk assessment reviewed in support of the joint recommendation required by paragraph (1); and
(C) a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk.
(c)
(1) may, to the extent necessary to address such national security interest, and subject to the conditions in paragraph (2)—
(A) temporarily delay the notice required by subsection (b)(2);
(B) make the determination required by subsection (b)(3), regardless of whether the notice required by subsection (b)(2) has been provided or whether the notified source has submitted any information in response to such notice;
(C) temporarily delay the notice required by subsection (b)(4); and
(D) exercise the authority provided in subsection (a) in accordance with such determination within 60 calendar days after the day the determination is made; and
(2) shall take actions necessary to comply with all requirements of subsection (b) as soon as practicable after addressing the urgent national security interest, including—
(A) providing the notice required by subsection (b)(2);
(B) promptly considering any information submitted by the source in response to such notice, and making any appropriate modifications to the determination based on such information;
(C) providing the notice required by subsection (b)(4), including a description of the urgent national security interest, and any modifications to the determination made in accordance with subparagraph (B); and
(D) providing notice to the appropriate congressional committees and leadership within 7 calendar days of the covered procurement actions taken under this section.
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(1)
(A) the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Select Committee on Intelligence, and the majority and minority leader of the Senate; and
(B) the Committee on Oversight and Government Reform, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Homeland Security, the Committee on Armed Services, the Committee on Energy and Commerce, the Permanent Select Committee on Intelligence, and the Speaker and minority leader of the House of Representatives.
(2)
(A) information technology, as defined in section 11101 of title 40, including cloud computing services of all types;
(B) telecommunications equipment or telecommunications service, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
(C) the processing of information on a Federal or non-Federal information system, subject to the requirements of the Controlled Unclassified Information program; or
(D) hardware, systems, devices, software, or services that include embedded or incidental information technology.
(3)
(A) a source selection for a covered article involving either a performance specification, as provided in subsection (a)(3)(B) of section 3306 of this title, or an evaluation factor, as provided in subsection (b)(1)(A) of such section, relating to a supply chain risk, or where supply chain risk considerations are included in the agency's determination of whether a source is a responsible source as defined in section 113 of this title;
(B) the consideration of proposals for and issuance of a task or delivery order for a covered article, as provided in section 4106(d)(3) of this title, where the task or delivery order contract includes a contract clause establishing a requirement relating to a supply chain risk;
(C) any contract action involving a contract for a covered article where the contract includes a clause establishing requirements relating to a supply chain risk; or
(D) any other procurement in a category of procurements determined appropriate by the Federal Acquisition Regulatory Council, with the advice of the Federal Acquisition Security Council.
(4)
(A) The exclusion of a source that fails to meet qualification requirements established under section 3311 of this title for the purpose of reducing supply chain risk in the acquisition or use of covered articles.
(B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.
(C) The determination that a source is not a responsible source as defined in section 113 of this title based on considerations of supply chain risk.
(D) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor to exclude a particular source from consideration for a subcontract under the contract.
(5)
(A) information technology, as defined in section 11101 of title 40;
(B) information systems, as defined in section 3502 of title 44; and
(C) telecommunications equipment and telecommunications services, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153).
(6)
(7)
(Added Pub. L. 115–390, title II, §203(a), Dec. 21, 2018, 132 Stat. 5189; amended Pub. L. 117–263, div. E, title LIX, §5949(k)(2), Dec. 23, 2022, 136 Stat. 3492.)
Editorial Notes
References in Text
Section 3101(c)(1), referred to in subsec. (k)(7), probably means section 3101(c)(1) of this title, which excepts the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration from applicability of the Procurement procedures and regulations of the Administrator of General Services.
Amendments
2022—Subsec. (j). Pub. L. 117–263 substituted "December 31, 2033" for "the date that is 5 years after the date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018".
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
Effective Date
Pub. L. 115–390, title II, §203(c), Dec. 21, 2018, 132 Stat. 5192, provided that: "The amendments made by this section [enacting this section] shall take effect on the date that is 90 days after the date of the enactment of this Act [Dec. 21, 2018] and shall apply to contracts that are awarded before, on, or after that date."
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
Prohibition on Certain Semiconductor Products and Services
Pub. L. 117–263, div. E, title LIX, §5949, Dec. 23, 2022, 136 Stat. 3485, provided that:
"(a)
"(1)
"(A) procure or obtain, or extend or renew a contract to procure or obtain, any electronic parts, products, or services that include covered semiconductor products or services; or
"(B) enter into a contract (or extend or renew a contract) with an entity to procure or obtain electronic parts or products that use any electronic parts or products that include covered semiconductor products or services.
"(2)
"(A)
"(i) to require any covered semiconductor products or services resident in equipment, systems, or services as of the day before the applicable effective date specified in subsection (c) to be removed or replaced;
"(ii) to prohibit or limit the utilization of such covered semiconductor products or services throughout the lifecycle of such existing equipment;
"(iii) to require the recipient of a Federal contract, grant, loan, or loan guarantee to replace covered semiconductor products or services resident in equipment, systems, or services before the effective date specified in subsection (c); or
"(iv) to require the Federal Communications Commission to designate covered semiconductor products or services to its Covered Communications Equipment or Services List maintained under section 2 of the Secured and Trusted Communications Networks Act of 2019 (47 U.S.C. 1603) [probably should be "(47 U.S.C. 1601)"].
"(B)
"(b)
"(1)
"(2)
"(3)
"(4)
"(5)
"(6)
"(A) the head of the agency, in consultation with the Secretary of Commerce, determines that no compliant product or service is available to be procured as, and when, needed at United States market prices or a price that is not considered prohibitively expensive; and
"(B) the head of the agency, in consultation with the Secretary of Defense or the Director of National Intelligence, determines that such waiver could not reasonably be expected to compromise the critical national security interests of the United States.
"(7)
"(c)
"(1)
"(2)
"(d)
"(1) the implementation of the prohibitions under subsection (a), including any challenges in the implementation; and
"(2) the effectiveness and utility of the waiver authority under subsection (b).
"(e)
"(1) conduct an analysis of semiconductor design and production capacity domestically and by allied or partner countries required to meet the needs of the Federal Government, including analyses regarding—
"(A) semiconductors critical to national security, as determined by the Secretary of Commerce, in consultation with the Secretary of Defense and the Director of National Intelligence, in accordance with section 9902(a)(6)(A)(i) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [15 U.S.C. 4652(a)(6)(A)(i)]; and
"(B) semiconductors classified as legacy semiconductors pursuant to section 9902(a)(6)(A)(i) of William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283);
"(2) assess the risk posed by the presence of covered semiconductor products or services in Federal systems;
"(3) assess the risk posed by the presence of covered semiconductor products or services in the supply chains of Federal contractors and subcontractors, including for non-Federal systems;
"(4) develop a strategy to—
"(A) improve the availability of domestic semiconductor design and production capacity required to meet the requirements of the Federal Government;
"(B) support semiconductor product and service suppliers seeking to contract with domestic, allied, or partner semiconductor producers and to improve supply chain traceability, including to meet the prohibitions under subsection (a); and
"(C) either certify the feasibility of implementing such prohibitions or exercising waiver authorities under subsection (b), to ensure uninterrupted Federal Government access to required semiconductor products and services; and
"(5) provide the results of the analysis, assessment, and strategy developed under paragraphs (1) through (4) to the Federal Acquisition Security Council.
"(f)
"(1)
"(2)
"(A) Sharing best practices, refining microelectronics standards, such as those established pursuant to section 224 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92) [10 U.S.C. 4501 note prec.], and developing recommendations to identify and mitigate, through diversification efforts, microelectronics supply chain concerns.
"(B) Developing an assessment framework to inform Federal decisions on sourcing microelectronics, considering—
"(i) chain of custody and traceability, including origin and location of design, manufacturing, distribution, shipping, and quantities;
"(ii) confidentiality, including protection, verification, and validation of intellectual property included in microelectronics;
"(iii) integrity, including—
"(I) security weaknesses and vulnerabilities that include potential supply chain attacks;
"(II) risk analysis and consequence to system;
"(III) risk of intentional or unintentional modification or tampering; and
"(IV) risk of insider threats, including integrity of people and processes involved in the design and manufacturing of microelectronics; and
"(iv) availability, including—
"(I) potential supply chain disruptions, including due to natural disasters or geopolitical events;
"(II) prioritization of parts designed and manufactured in the United States and in allied or partner countries to support and sustain the defense and technology industrial base;
"(III) risk associated with sourcing parts from suppliers outside of the United States and allied and partner countries, including long-term impacts on availability of microelectronics produced domestically or in allied or partner countries; and
"(IV) obsolescence management and counterfeit avoidance and detection.
"(C) Developing a process for provenance and traceability from design to disposal of microelectronics components and intellectual property contained therein implementable across the Federal acquisition system to improve reporting, data analysis, and tracking.
"(D) Developing and implementing policies and plans to support the following:
"(i) Development of domestic design and manufacturing capabilities to replace covered semiconductor products or services.
"(ii) Utilization of the assessment framework developed under subparagraph (B).
"(iii) Implementation of the strategy required under subsection (e)(4) as applicable.
"(iv) Identification of and integration with existing information reporting and data visualization systems in the Federal Government, including modification to such systems to track the information.
"(v) A requirement to document microelectronics used in systems and subsystems, including origin and location of design and manufacturing, technologies used, and quantities procured.
"(vi) Elimination from Federal Government supply chains of microelectronics from entities included on the Consolidated Screening List maintained by the International Trade Administration of the Department of Commerce.
"(3)
"(A) The National Science and Technology Council Subcommittee on Microelectronics Leadership.
"(B) The Department of Commerce semiconductor industrial advisory committee established under subsection 9906(b) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [15 U.S.C. 4656(b)].
"(C) The White House Coordinator for CHIPS Implementation.
"(D) The Federal Acquisition Security Council (FASC).
"(E) The Government-Industry Working Group on Microelectronics.
"(F) The Joint Defense Manufacturing Technology Panel (JDMTP).
"(G) Standards development organizations.
"(g)
"(1) issue recommendations to mitigate supply chain risks relevant to Federal Government acquisition of semiconductor products and services, considering—
"(A) the analysis, assessment, and strategy developed under subsection (e) and any related updates;
"(B) the standards provided under section 224 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92) [10 U.S.C. 4501 note prec.], including any tiers of trust, levels of security, or risk-based approaches established under such section;
"(C) the extent to which such recommendations would enhance the security of critical systems;
"(D) the extent to which such recommendations would impact Federal access to commercial technologies; and
"(E) any risks to the Federal Government from contracting with microelectronics suppliers that include covered semiconductor products or services in non-Federal supply chains; and
"(2) make recommendations to the Federal Acquisition Regulatory Council and the heads of executive agencies for any needed regulations to mitigate supply chain risks.
"(h)
"(1) provide that contractors who supply a Federal agency with electronic parts or products are responsible for—
"(A) certifying to the non-use of covered semiconductor products or services in such parts or products;
"(B) detecting and avoiding the use or inclusion of such covered semiconductor products or services in such parts or products; and
"(C) any rework or corrective action that may be required to remedy the use or inclusion of such covered semiconductor products or services in such parts or products;
"(2) require covered entities to disclose to direct customers the inclusion of a covered semiconductor product or service in electronic parts, products, or services included in electronic parts, products, or services subject to the contracting prohibition under subsection (a) as to whether such supplied parts, products, or services include covered semiconductors products or services;
"(3) provide that a covered entity that fails to disclose the inclusion to direct customers of a covered semiconductor product or service in electronic parts, products, or services procured or obtained by an executive agency in contravention of subsection (a) shall be responsible for any rework or corrective action that may be required to remedy the use or inclusion of such covered semiconductor product or service;
"(4) provide that the costs of covered semiconductor products or services, suspect semiconductor products, and any rework or corrective action that may be required to remedy the use or inclusion of such products are not allowable costs for Federal contracts;
"(5) provide that—
"(A) any covered entity or Federal contractor or subcontractor who becomes aware, or has reason to suspect, that any end item, component, or part of a critical system purchased by the Federal Government, or purchased by a Federal contractor or subcontractor for delivery to the Federal Government for any critical system, that contains covered semiconductor products or services shall notify appropriate Federal authorities in writing within 60 days; and
"(B) the Federal authorities shall report such information to the appropriate committees of Congress and leadership within 120 days;
"(6) provide that Federal bidders and contractors—
"(A) may reasonably rely on the certifications of compliance from covered entities and subcontractors who supply electronic parts, products, or services when providing proposals to the Federal Government; and
"(B) are not required to conduct independent third party audits or other formal reviews related to such certifications;
"(7) provide that a Federal contractor or subcontractor that provides a notification under paragraph (5) that does not regard electronic parts or products manufactured or assembled by such Federal contractor or subcontractor shall not be subject to civil liability nor determined to not be a presently responsible contractor on the basis of such notification; and
"(8) provide that a Federal contractor or subcontractor that provides a notification under paragraph (5) that regards electronic parts or products manufactured or assembled by such Federal contractor or subcontractor shall not be subject to civil liability nor determined to not be a presently responsible contractor on the basis of such notification if the Federal contractor or subcontractor makes a comprehensive and documentable effort to identify and remove covered semiconductor products or services from the Federal supply.
"(i)
"(1)
"(A) a report of the findings and recommendations of the analyses, assessment, and strategy developed under such subsection; and
"(B) a report on development of the microelectronics traceability and diversification initiative under subsection (f)(1).
"(2)
"(A) the development of recommendations under subsection (g), including the considerations described in paragraph (1) of such subsection; and
"(B) as applicable, the impact of any recommendations or regulations implemented.
"(j)
"(1)
"(A) the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Committee on Homeland Security and Governmental Affairs, the Committee on Energy and Natural Resources, the Committee on Foreign Relations, the Committee on Banking, Housing, and Urban Affairs, the Select Committee on Intelligence, and the majority and minority leaders of the Senate; and
"(B) the Committee on Armed Services, the Committee on Energy and Commerce, the Committee on Science, Space, and Technology, the Committee on Oversight and Reform [now Committee on Oversight and Accountability], the Committee on Foreign Affairs, the Committee on Homeland Security, the Permanent Select Committee on Intelligence, and the Speaker, the majority leader, and the minority leader of the of the House of Representatives.
"(2)
"(A) develops, domestically or abroad, a design of a semiconductor that is the direct product of United States origin technology or software; and
"(B) purchases covered semiconductor products or services from an entity described in subparagraph (A) or (C) of paragraph (3).
"(3)
"(A) A semiconductor, a semiconductor product, a product that incorporates a semiconductor product, or a service that utilizes such a product, that is designed, produced or provided by, Semiconductor Manufacturing International Corporation (SMIC) (or any subsidiary, affiliate, or successor of such entity).
"(B) A semiconductor, a semiconductor product, a product that incorporates a semiconductor product, or a service that utilizes such a product, that is designed, produced, or provided by ChangXin Memory Technologies (CXMT) or Yangtze Memory Technologies Corp (YMTC) (or any subsidiary, affiliate, or successor of such entities).
"(C) A semiconductor, semiconductor product, or semiconductor service produced or provided by an entity that the Secretary of Defense or the Secretary of Commerce, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, determines to be an entity owned or controlled by, or otherwise connected to, the government of a foreign country of concern, provided that the determination with respect to such entity is published in the Federal Register.
"(4)
"(A) has the meaning given the term 'national security system' in section 11103(a)(1) of title 40, United States Code;
"(B) shall include additional systems identified by the Federal Acquisition Security Council;
"(C) shall include additional systems identified by the Department of Defense, consistent with guidance provided under section 224 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92) [10 U.S.C. 4501 note prec.]; and
"(D) shall not include a system to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications).
"(5)
"(k)
"(1)
"(2)—[Amended this section.]
"(l)
"(1)
"(2)
§4714. Prohibition on criminal history inquiries by contractors prior to conditional offer
(a)
(1)
(A) may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and
(B) shall require, as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant.
(2)
(3)
(A)
(i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or
(ii) a position that the Administrator of General Services identifies under the regulations issued under subparagraph (B).
(B)
(i)
(ii)
(I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and
(II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws.
(b)
(c)
(1)
(A) notify the contractor;
(B) provide 30 days after such notification for the contractor to appeal the determination; and
(C) issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations.
(2)
(A) providing written guidance to the contractor that the contractor's eligibility for contracts requires compliance with this section;
(B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and
(C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section.
(d)
(1)
(2)
(Added Pub. L. 116–92, div. A, title XI, §1123(a)(1), Dec. 20, 2019, 133 Stat. 1610.)
Editorial Notes
References in Text
The date of enactment of the Fair Chance to Compete for Jobs Act of 2019, referred to in subsec. (a)(3)(B)(i), is the date of enactment of subtitle B (§§1121–1124) of title XI of div. A of Pub. L. 116–92, which was approved Dec. 20, 2019.
The Civil Rights Act of 1964, referred to in subsec. (a)(3)(B)(ii)(I), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VII of the Act is classified generally to subchapter VI (§2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.
Statutory Notes and Related Subsidiaries
Effective Date
Pub. L. 116–92, div. A, title XI, §1123(a)(3), Dec. 20, 2019, 133 Stat. 1612, provided that: "Section 4714 of title 41, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 1122(b)(2) of this subtitle [effective 2 years after Dec. 20, 2019, see section 1122(b)(2) of Pub. L. 116–92, div. A, title XI, subtitle B, set out as a note under section 9202 of Title 5, Government Organization and Employees]."
Subtitle II—Other Advertising and Contract Provisions
CHAPTER 61—ADVERTISING
§6101. Advertising requirement for Federal Government purchases and sales
(a)
(1)
(2)
(b)
(1)
(2)
(A) the amount involved in any one case does not exceed $25,000;
(B) public exigencies require the immediate delivery of articles or performance of services;
(C) only one source of supply is available and the Federal Government purchasing or contracting officer so certifies; or
(D) services are required to be performed by a contractor in person and are—
(i) of a technical and professional nature; or
(ii) under Federal Government supervision and paid for on a time basis.
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3801.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6101(a) | 41:5a. | Aug. 2, 1946, ch. 744, §18, 60 Stat. 811. |
| 6101(b)–(d) | 41:5. | R.S. §3709; Aug. 2, 1946, ch. 744, §9(a), (c), 60 Stat. 809; June 30, 1949, ch. 288, title VI, §602(f), formerly title V, §502(e), 63 Stat. 403, renumbered title VI, §602(f), Sept. 5, 1950, ch. 849, §§6(a), (b), 8(c), 64 Stat. 583, 591; Pub. L. 85–800, §7, Aug. 28, 1958, 72 Stat. 967; Pub. L. 93–356, §1, July 25, 1974, 88 Stat. 390; Pub. L. 98–191, §9(b), Dec. 1, 1983, 97 Stat. 1332. |
In subsection (a), before paragraph (1), the words "In this section" are substituted for "as used in this Act" as the probable intent of Congress. Section 9(a) of the Act of August 2, 1946 (ch. 744, 60 Stat. 809) restated 41:5 generally and section 9(c) of the Act, an independent provision, was editorially added as the last paragraph of 41:5. The definitions which apply to "as used in this Act" are probably intended to apply also to 41:5 as restated by the Act. The definitions for "department" and "continental United States" are omitted because those terms do not appear in 41:5. In paragraph (1), the words "section 9104 of title 31" are substituted for "section 104 of the Government Corporation Control Act, approved December 6, 1945" because of section 4(b) of Public Law. 97–258 (31 U.S.C. note prec. 101). In paragraphs (1) and (2), the word "includes" is substituted for "shall be construed to include" and for "shall be construed as including", respectively, to eliminate unnecessary words.
In subsection (c), the words "as authorized by section 29 of the Surplus Property Act of 1944 (50 U.S.C. App. 1638)" in section 3709 of the Revised Statutes are omitted because section 29 was repealed by section 602(a)(1) of the Federal Property and Administrative Services Act of 1949 (ch. 288, 63 Stat. 399).
§6102. Exceptions from advertising requirement
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3802; Pub. L. 115–141, div. I, title I, §102, Mar. 23, 2018, 132 Stat. 772; Pub. L. 117–103, div. I, title I, §142(b), Mar. 15, 2022, 136 Stat. 519.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6102(a) | 41:6a(a). | Oct. 10, 1940, ch. 851, §2(a), 54 Stat. 1110; Oct. 31, 1951, ch. 654, §3(8), 65 Stat. 708. |
| 6102(b) | 41:6a(f). | Oct. 10, 1940, ch. 851, §2(f), (j), 54 Stat. 1110. |
| 6102(c) | 41:6a(h). | Oct. 10, 1940, ch. 851, §2(h), 54 Stat. 1110; Oct. 31, 1951, ch. 654, §3(9), 65 Stat. 708. |
| 6102(d) | 41:6a(j). | |
| 6102(e) | 41:6a–1. | Pub. L. 89–90, (2d par. on p. 276), July 27, 1965, 79 Stat. 276; Pub. L. 93–356, §2, July 25, 1974, 88 Stat. 390; Pub. L. 98–191, §9(c), Dec. 1, 1983, 97 Stat. 1332. |
| 6102(f) | 41:6b(d). | June 24, 1940, ch. 412, 54 Stat. 504. |
| 6102(g) | 41:6a–3. | Pub. L. 108–7, div. H, title I, §§104, 1102, Feb. 20, 2003, 117 Stat. 354, 370. |
| 6102(h) | 41:6a–4. |
In subsections (a)–(d), the words "under any appropriation Act" are omitted as unnecessary.
In subsection (e), the words "On and after July 27, 1965" are omitted as unnecessary. The words "according to common business practice" are substituted for "in the manner common among businessmen" for consistency in the revised title.
In subsection (g), the words "in any fiscal year" are omitted as unnecessary.
In subsection (h), the text of 41:6a–4(b) is omitted as unnecessary.
Editorial Notes
Amendments
2022—Subsec. (j). Pub. L. 117–103 added subsec. (j).
2018—Subsec. (i). Pub. L. 115–141 added subsec. (i).
Statutory Notes and Related Subsidiaries
Effective Date of 2022 Amendment
Amendment by Pub. L. 117–103 applicable with respect to fiscal year 2022 and each succeeding fiscal year, see section 186(d) of Title 2, The Congress.
§6103. Opening of bids
Whenever proposals for supplies have been solicited, the parties responding to the solicitation shall be notified of the time and place of the opening of the bids, and be permitted to be present either in person or by attorney. A record of each bid shall be made at the time and place of the opening of the bids.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3803.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6103 | 41:8. | R.S. §3710. |
CHAPTER 63—GENERAL CONTRACT PROVISIONS
Editorial Notes
Amendments
2024—Pub. L. 118–74, §2(a)(2), July 30, 2024, 138 Stat. 1506, added item 6310.
Statutory Notes and Related Subsidiaries
Federal Contractor Authority
Pub. L. 116–136, div. A, title III, §3610, Mar. 27, 2020, 134 Stat. 414, as amended by Pub. L. 117–2, title IV, §4015, Mar. 11, 2021, 135 Stat. 80, provided that: "Notwithstanding any other provision of law, and subject to the availability of appropriations, funds made available to an agency by this Act [div. A of Pub. L. 116–136, see Tables for classification] or any other Act may be used by such agency to modify the terms and conditions of a contract, or other agreement, without consideration, to reimburse at the minimum applicable contract billing rates not to exceed an average of 40 hours per week any paid leave, including sick leave, a contractor provides to keep its employees or subcontractors in a ready state, including to protect the life and safety of Government and contractor personnel, but in no event beyond September 30, 2021. Such authority shall apply only to a contractor whose employees or subcontractors cannot perform work on a site that has been approved by the Federal Government, including a federally-owned or leased facility or site, due to facility closures or other restrictions, and who cannot telework because their job duties cannot be performed remotely during the public health emergency declared on January 31, 2020 for COVID–19: Provided, That the maximum reimbursement authorized by this section shall be reduced by the amount of credit a contractor is allowed pursuant to division G [§§7001–7005] of Public Law 116–127 [set out as notes under sections 1401 and 3111 of Title 26, Internal Revenue Code] and any applicable credits a contractor is allowed under this Act."
[Pub. L. 116–260, div. N, title X, §1002, Dec. 27, 2020, 134 Stat. 2145, provided that: "Section 3610 of division A of the CARES Act (Public Law 116–136) [set out above] shall be applied by substituting 'March 31, 2021' for 'September 30, 2020'."]
Executive Documents
Ex. Ord. No. 13658. Establishing a Minimum Wage for Contractors
Ex. Ord. No. 13658, Feb. 12, 2014, 79 F.R. 9851, as amended by Ex. Ord. 13838, §2, May 25, 2018, 83 F.R. 25341, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act [of 1949], 40 U.S.C. 101 et seq., and in order to promote economy and efficiency in procurement by contracting with sources who adequately compensate their workers, it is hereby ordered as follows:
(i) $10.10 per hour beginning January 1, 2015; and
(ii) beginning January 1, 2016, and annually thereafter, an amount determined by the Secretary of Labor (Secretary). The amount shall be published by the Secretary at least 90 days before such new minimum wage is to take effect and shall be:
(A) not less than the amount in effect on the date of such determination;
(B) increased from such amount by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (United States city average, all items, not seasonally adjusted), or its successor publication, as determined by the Bureau of Labor Statistics; and
(C) rounded to the nearest multiple of $0.05.
(b) In calculating the annual percentage increase in the Consumer Price Index for purposes of subsection (a)(ii)(B) of this section, the Secretary shall compare such Consumer Price Index for the most recent month, quarter, or year available (as selected by the Secretary prior to the first year for which a minimum wage is in effect pursuant to subsection (a)(ii)(B)) with the Consumer Price Index for the same month in the preceding year, the same quarter in the preceding year, or the preceding year, respectively.
(c) Nothing in this order shall excuse noncompliance with any applicable Federal or State prevailing wage law, or any applicable law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this order.
(i) $4.90 an hour, beginning on January 1, 2015;
(ii) for each succeeding 1-year period until the hourly cash wage under this section equals 70 percent of the wage in effect under section 2 of this order for such period, an hourly cash wage equal to the amount determined under this section for the preceding year, increased by the lesser of:
(A) $0.95; or
(B) the amount necessary for the hourly cash wage under this section to equal 70 percent of the wage under section 2 of this order; and
(iii) for each subsequent year, 70 percent of the wage in effect under section 2 for such year rounded to the nearest multiple of $0.05.
(b) Where workers do not receive a sufficient additional amount on account of tips, when combined with the hourly cash wage paid by the employer, such that their wages are equal to the minimum wage under section 2 of this order, the cash wage paid by the employer, as set forth in this section for those workers, shall be increased such that their wages equal the minimum wage under section 2 of this order. Consistent with applicable law, if the wage required to be paid under the Service Contract Act [of 1965], 41 U.S.C. 6701 et seq., or any other applicable law or regulation is higher than the wage required by section 2, the employer shall pay additional cash wages sufficient to meet the highest wage required to be paid.
(b) Within 60 days of the Secretary issuing regulations pursuant to subsection (a) of this section, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts as described in section 7(d)(i)(C) and (D) of this order, entered into after January 1, 2015, consistent with the effective date of such agency action, comply with the requirements set forth in sections 2 and 3 of this order.
(c) Any regulations issued pursuant to this section should, to the extent practicable and consistent with section 8 of this order, incorporate existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act [of 1938], 29 U.S.C. 201 et seq.; the Service Contract Act, 41 U.S.C. 6701 et seq.; and the Davis-Bacon Act, 40 U.S.C. 3141 et seq.
(b) This order creates no rights under the Contract Disputes Act [of 1978], and disputes regarding whether a contractor has paid the wages prescribed by this order, to the extent permitted by law, shall be disposed of only as provided by the Secretary in regulations issued pursuant to this order.
(i) the authority granted by law to an agency or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) This order shall apply only to a new contract or contract-like instrument, as defined by the Secretary in the regulations issued pursuant to section 4(a) of this order, if:
(i)(A) it is a procurement contract for services or construction;
(B) it is a contract or contract-like instrument for services covered by the Service Contract Act;
(C) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
(D) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and
(ii) the wages of workers under such contract or contract-like instrument are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act.
(e) For contracts or contract-like instruments covered by the Service Contract Act or the Davis-Bacon Act, this order shall apply only to contracts or contract-like instruments at the thresholds specified in those statutes. For procurement contracts where workers' wages are governed by the Fair Labor Standards Act, this order shall apply only to contracts or contract-like instruments that exceed the micro-purchase threshold, as defined in 41 U.S.C. 1902(a), unless expressly made subject to this order pursuant to regulations or actions taken under section 4 of this order.
(f) This order shall not apply to grants; contracts and agreements with and grants to Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93–638), as amended; or any contracts or contract-like instruments expressly excluded by the regulations issued pursuant to section 4(a) of this order. This order shall not apply to contracts or contract-like instruments entered into with the Federal Government in connection with seasonal recreational services or seasonal recreational equipment rental for the general public on Federal lands, but this exemption shall not apply to lodging and food services associated with seasonal recreational services. Seasonal recreational services include river running, hunting, fishing, horseback riding, camping, mountaineering activities, recreational ski services, and youth camps.
(g) Independent agencies are strongly encouraged to comply with the requirements of this order.
(i) January 1, 2015, consistent with the effective date for the action taken by the Federal Acquisition Regulatory Council pursuant to section 4(a) of this order; or
(ii) for contracts where an agency action is taken pursuant to section 4(b) of this order, January 1, 2015, consistent with the effective date for such action.
(b) This order shall not apply to contracts or contract-like instruments entered into pursuant to solicitations issued on or before the effective date for the relevant action taken pursuant to section 4 of this order.
(c) For all new contracts and contract-like instruments negotiated between the date of this order and the effective dates set forth in this section, agencies are strongly encouraged to take all steps that are reasonable and legally permissible to ensure that individuals working pursuant to those contracts and contract-like instruments are paid an hourly wage of at least $10.10 (as set forth under sections 2 and 3 of this order) as of the effective dates set forth in this section.
[Ex. Ord. No. 13658, set out above, superseded, as of Jan. 30, 2022, to the extent inconsistent with Ex. Ord. No. 14026, see section 6 of Ex. Ord. No. 14026, set out below.]
Ex. Ord. No. 13706. Establishing Paid Sick Leave for Federal Contractors
Ex. Ord. No. 13706, Sept. 7, 2015, 80 F.R. 54697, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including 40 U.S.C. 121, and in order to promote economy and efficiency in procurement by contracting with sources that allow their employees to earn paid sick leave, it is hereby ordered as follows:
(b) A contractor may not set a limit on the total accrual of paid sick leave per year, or at any point in time, at less than 56 hours.
(c) Paid sick leave earned under this order may be used by an employee for an absence resulting from:
(i) physical or mental illness, injury, or medical condition;
(ii) obtaining diagnosis, care, or preventive care from a health care provider;
(iii) caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care described in paragraphs (i) or (ii) of this subsection or is otherwise in need of care; or
(iv) domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes otherwise described in paragraphs (i) and (ii) of this subsection, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or to assist an individual related to the employee as described in paragraph (iii) of this subsection in engaging in any of these activities.
(d) Paid sick leave accrued under this order shall carry over from 1 year to the next and shall be reinstated for employees rehired by a covered contractor within 12 months after a job separation.
(e) The use of paid sick leave cannot be made contingent on the requesting employee finding a replacement to cover any work time to be missed.
(f) The paid sick leave required by this order is in addition to a contractor's obligations under 41 U.S.C. chapter 67 (Service Contract Act [of 1965]) and 40 U.S.C. chapter 31, subchapter IV (Davis-Bacon Act), and contractors may not receive credit toward their prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of this order.
(g) A contractor's existing paid leave policy provided in addition to the fulfillment of Service Contract Act or Davis-Bacon Act obligations, if applicable, and made available to all covered employees will satisfy the requirements of this order if the amount of paid leave is sufficient to meet the requirements of this section and if it may be used for the same purposes and under the same conditions described herein.
(h) Paid sick leave shall be provided upon the oral or written request of an employee that includes the expected duration of the leave, and is made at least 7 calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable.
(i) Certification.
(i) A contractor may only require certification issued by a health care provider for paid sick leave used for the purposes listed in subsections (c)(i), (c)(ii), or (c)(iii) of this section for employee absences of 3 or more consecutive workdays, to be provided no later than 30 days from the first day of the leave.
(ii) If 3 or more consecutive days of paid sick leave is used for the purposes listed in subsection (c)(iv) of this section, documentation may be required to be provided from an appropriate individual or organization with the minimum necessary information establishing a need for the employee to be absent from work. The contractor shall not disclose any verification information and shall maintain confidentiality about the domestic violence, sexual assault, or stalking, unless the employee consents or when disclosure is required by law.
(j) Nothing in this order shall require a covered contractor to make a financial payment to an employee upon a separation from employment for accrued sick leave that has not been used, but unused leave is subject to reinstatement as prescribed in subsection (d) of this section.
(k) A covered contractor may not interfere with or in any other manner discriminate against an employee for taking, or attempting to take, paid sick leave as provided for under this order or in any manner asserting, or assisting any other employee in asserting, any right or claim related to this order.
(l) Nothing in this order shall excuse noncompliance with or supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under this order.
(b) Within 60 days of the Secretary issuing regulations pursuant to subsection (a) of this section, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts as described in section 6(d)(i)(C) and (D) of this order, entered into after January 1, 2017, consistent with the effective date of such agency action, comply with the requirements set forth in section 2 of this order.
(c) Any regulations issued pursuant to this section should, to the extent practicable and consistent with section 7 of this order, incorporate existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act [of 1938], 29 U.S.C. 201 et seq.; the Service Contract Act; the Davis-Bacon Act; the Family and Medical Leave Act [of 1993], 29 U.S.C. 2601 et seq.; the Violence Against Women Act of 1994, 42 U.S.C. 13925 et seq. [now 34 U.S.C. 12291 et seq.]; and Executive Order 13658 of February 12, 2014, Establishing a Minimum Wage for Contractors.
(b) This order creates no rights under the Contract Disputes Act [of 1978], and disputes regarding whether a contractor has provided employees with paid sick leave prescribed by this order, to the extent permitted by law, shall be disposed of only as provided by the Secretary in regulations issued pursuant to this order.
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) This order shall apply only to a new contract or contract-like instrument, as defined by the Secretary in the regulations issued pursuant to section 3(a) of this order, if:
(i)(A) it is a procurement contract for services or construction;
(B) it is a contract or contract-like instrument for services covered by the Service Contract Act;
(C) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 CFR 4.133(b); or
(D) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and
(ii) the wages of employees under such contract or contract-like instrument are governed by the Davis-Bacon Act, the Service Contract Act, or the Fair Labor Standards Act, including employees who qualify for an exemption from its minimum wage and overtime provisions.
(e) For contracts or contract-like instruments covered by the Service Contract Act or the Davis-Bacon Act, this order shall apply only to contracts or contract-like instruments at the thresholds specified in those statutes. For procurement contracts in which employees' wages are governed by the Fair Labor Standards Act, this order shall apply only to contracts or contract-like instruments that exceed the micro-purchase threshold, as defined in 41 U.S.C. 1902(a), unless expressly made subject to this order pursuant to regulations or actions taken under section 3 of this order.
(f) This order shall not apply to grants; contracts and agreements with and grants to Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93–638), as amended; or any contracts or contract-like instruments expressly excluded by the regulations issued pursuant to section 3(a) of this order.
(g) Independent agencies are strongly encouraged to comply with the requirements of this order.
(i) January 1, 2017, consistent with the effective date for the action taken by the Federal Acquisition Regulatory Council pursuant to section 3(a) of this order; or
(ii) January 1, 2017, for contracts where an agency action is taken pursuant to section 3(b) of this order, consistent with the effective date for such action.
(b) This order shall not apply to contracts or contract-like instruments that are awarded, or entered into pursuant to solicitations issued, on or before the effective date for the relevant action taken pursuant to section 3 of this order.
Barack Obama.
Executive Order No. 13838
Ex. Ord. No. 13838, May 25, 2018, 83 F.R. 25341, which related to an exemption from the minimum wage requirements for contractors established by Ex. Ord. No. 13658 (set out above) for recreational services on Federal lands, was revoked, effective Jan. 30, 2022, by Ex. Ord. No. 14026, §6, Apr. 27, 2021, 86 F.R. 22836, set out below.
Ex. Ord. No. 14026. Increasing the Minimum Wage for Federal Contractors
Ex. Ord. No. 14026, Apr. 27, 2021, 86 F.R. 22835, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act [of 1949], [see] 40 U.S.C. 101 et seq., and in order to promote economy and efficiency in procurement by contracting with sources that adequately compensate their workers, it is hereby ordered as follows:
(i) $15.00 per hour, beginning January 30, 2022; and
(ii) beginning January 1, 2023, and annually thereafter, an amount determined by the Secretary of Labor (Secretary). The amount shall be published by the Secretary at least 90 days before such new minimum wage is to take effect and shall be:
(A) not less than the amount in effect on the date of such determination;
(B) increased from such amount by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (United States city average, all items, not seasonally adjusted), or its successor publication, as determined by the Bureau of Labor Statistics; and
(C) rounded to the nearest multiple of $0.05.
(b) In calculating the annual percentage increase in the Consumer Price Index for purposes of subsection (a)(ii)(B) of this section, the Secretary shall compare such Consumer Price Index for the most recent month, quarter, or year available (as selected by the Secretary prior to the first year for which a minimum wage is in effect pursuant to subsection (a)(ii)(B) of this section) with the Consumer Price Index for the same month in the preceding year, the same quarter in the preceding year, or the preceding year, respectively.
(c) Nothing in this order shall excuse noncompliance with any applicable Federal or State prevailing wage law, or any applicable law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this order.
(i) $10.50 per hour, beginning January 30, 2022;
(ii) beginning January 1, 2023, 85 percent of the wage in effect under section 2 of this order, rounded to the nearest multiple of $0.05; and
(iii) beginning January 1, 2024, and for each subsequent year, 100 percent of the wage in effect under section 2 of this order.
(b) Where workers do not receive a sufficient additional amount on account of tips, when combined with the hourly cash wage paid by the employer, such that their wages are equal to the minimum wage under section 2 of this order, the cash wage paid by the employer, as set forth in this section for those workers, shall be increased such that their wages equal the minimum wage under section 2 of this order. Consistent with applicable law, if the wage required to be paid under the Service Contract Act [of 1965], [see] 41 U.S.C. 6701 et seq., or any other applicable law or regulation is higher than the wage required under section 2 of this order, the employer shall pay additional cash wages sufficient to meet the highest wage required to be paid.
(b) Within 60 days of the Secretary issuing regulations pursuant to subsection (a) of this section, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts and contract-like instruments as described in sections 8(a)(i)(C) and (D) of this order, entered into on or after January 30, 2022, consistent with the effective date of such agency action, comply with the requirements set forth in sections 2 and 3 of this order.
(c) Any regulations issued pursuant to this section should, to the extent practicable, incorporate existing definitions, principles, procedures, remedies, and enforcement processes under the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq.; the Service Contract Act, 41 U.S.C. 6701 et seq.; the Davis-Bacon Act, [see] 40 U.S.C. 3141 et seq.; Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors) [41 U.S.C. 6301 note prec.]; and regulations issued to implement that order.
(b) This order creates no rights under the Contract Disputes Act [of 1978], [see] 41 U.S.C. 7101 et seq., and disputes regarding whether a contractor has paid the wages prescribed by this order, as appropriate and consistent with applicable law, shall be disposed of only as provided by the Secretary in regulations issued pursuant to this order.
(A) it is a procurement contract or contract-like instrument for services or construction;
(B) it is a contract or contract-like instrument for services covered by the Service Contract Act;
(C) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 CFR 4.133(b); or
(D) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and
(ii) the wages of workers under such contract or contract-like instrument are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act.
(b) For contracts or contract-like instruments covered by the Service Contract Act or the Davis-Bacon Act, this order shall apply only to contracts or contract-like instruments at the thresholds specified in those statutes. Where workers' wages are governed by the Fair Labor Standards Act of 1938, this order shall apply only to procurement contracts or contract-like instruments that exceed the micro-purchase threshold, as defined in 41 U.S.C. 1902(a), unless expressly made subject to this order pursuant to regulations or actions taken under section 4 of this order.
(c) This order shall not apply to grants; contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93–638) [25 U.S.C. 5301 et seq.], as amended; or any contracts or contract-like instruments expressly excluded by the regulations issued pursuant to section 4(a) of this order.
(i) January 30, 2022, consistent with the effective date for the action taken by the Federal Acquisition Regulatory Council pursuant to section 4(a) of this order; or
(ii) for contracts where an agency action is taken pursuant to section 4(b) of this order, January 30, 2022, consistent with the effective date for such action.
(b) As an exception to subsection (a) of this section, where agencies have issued a solicitation before the effective date for the relevant action taken pursuant to section 4 of this order and entered into a new contract or contract-like instrument resulting from such solicitation within 60 days of such effective date, such agencies are strongly encouraged but not required to ensure that the minimum wages specified in sections 2 and 3 of this order are paid in the new contract or contract-like instrument. But if that contract or contract-like instrument is subsequently extended or renewed, or an option is subsequently exercised under that contract or contract-like instrument, the minimum wages specified in sections 2 and 3 of this order shall apply to that extension, renewal, or option.
(c) For all existing contracts and contract-like instruments, solicitations issued between the date of this order and the effective dates set forth in this section, and contracts and contract-like instruments entered into between the date of this order and the effective dates set forth in this section, agencies are strongly encouraged, to the extent permitted by law, to ensure that the hourly wages paid under such contracts or contract-like instruments are consistent with the minimum wages specified in sections 2 and 3 of this order.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
Executive Order No. 14042
Ex. Ord. No. 14042, Sept. 9, 2021, 86 F.R. 50985, which related to COVID safety protocols for Federal contractors, was revoked by Ex. Ord. No. 14099, §2, May 9, 2023, 88 F.R. 30891.
Ex. Ord. No. 14069. Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency
Ex. Ord. No. 14069, Mar. 15, 2022, 87 F.R. 15315, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
§6301. Authorization requirement
(a)
(b)
(1)
(A) the Secretary of Defense; or
(B) the Secretary of Homeland Security with respect to the Coast Guard when the Coast Guard is not operating as a service in the Navy.
(2)
(3)
(4)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3803; Pub. L. 111–281, title IX, §903(a)(4), Oct. 15, 2010, 124 Stat. 3010.)
Amendment Not Shown in Text
Subsecs. (a) and (b) of this section are derived from section 11 of former Title 41, Public Contracts, which was amended by Pub. L. 111–281, title IX, §903(a)(4), Oct. 15, 2010, 124 Stat. 3010, prior to being repealed and reenacted as subsecs. (a) and (b) of this section by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 903 of Pub. L. 111–281 provided that, effective with the enactment of Pub. L. 109–241, section 902(c) of Pub. L. 109–241, which amended section 3732 of the Revised Statutes, is amended by inserting in the directory language, "of the United States" after "Revised Statutes", resulting in no change in text.
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6301(a) | 41:11(a) (words before 2nd comma). | R.S. §3732; Pub. L. 89–687, title VI, §612(e), Oct. 15, 1966, 80 Stat. 993; Pub. L. 98–557, §17(e)(1), (2), Oct. 30, 1984, 98 Stat. 2868; Pub. L. 104–106, div. D, title XLIII, §4322(b)(4), Feb. 10, 1996, 110 Stat. 677; Pub. L. 109–241, title IX, §902(c), July 11, 2006, 120 Stat. 566. |
| 6301(b) | 41:11(a) (words after 2nd comma), (b). | |
| 6301(c) | 41:14. | R.S. §3736. |
In subsection (b)(1)(A), the words "Secretary of Defense" are substituted for "Department of Defense" because of 10:113.
In subsection (b)(1)(B), the words "Secretary of Homeland Security" are substituted for "Department of Homeland Security" because of section 102(a)(2) of the Homeland Security Act of 2002 (6 U.S.C. 112(a)(2)).
§6302. Contracts for fuel made by Secretary of the Army
The Secretary of the Army, when the Secretary believes it is in the interest of the United States, may enter into contracts and incur obligations for fuel in sufficient quantities to meet the requirements for one year without regard to the current fiscal year. Amounts appropriated for the fiscal year in which the contract is made or amounts appropriated or which may be appropriated for the following fiscal year may be used to pay for supplies delivered under a contract made pursuant to this section.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3804.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6302 | 41:11a. | June 30, 1921, ch. 33, §1 (last proviso on p. 78), 42 Stat. 78. |
The words "Secretary of the Army" are substituted for "Secretary of War" because of section 205(a) of the National Security Act of 1947 (ch. 343, 61 Stat. 501). Section 205(a) was repealed by section 53 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 676). Section 1 of the Act of August 10, 1956 (70A Stat. 1) enacted Title 10, "Armed Forces", and under sections 3011 to 3013 of title 10, the Department of the Army remains under the administrative supervision of the Secretary of the Army.
§6303. Certain contracts limited to appropriated amounts
A contract to erect, repair, or furnish a public building, or to make any public improvement, shall not be made on terms requiring the Federal Government to pay more than the amount specifically appropriated for the activity covered by the contract.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3804.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6303 | 41:12. | R.S. §3733. |
The words "the activity covered by the contract" are substituted for "the specific purpose" for clarity.
§6304. Certain contracts limited to one-year term
Except as otherwise provided, an executive department shall not make a contract for stationery or other supplies for a term longer than one year from the time the contract is made.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3804.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6304 | 41:13. | R.S. §3735. |
The words "an executive department shall not" are substituted for "it shall not be lawful for any of the executive departments to" to state the legal prohibition directly and to eliminate unnecessary words.
§6305. Prohibition on transfer of contract and certain allowable assignments
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(A) the contracting officer or head of the officer's department or agency;
(B) the surety on any bond connected with the contract; and
(C) the disbursing officer, if any, designated in the contract to make payment.
(7)
(8)
(9)
(A)
(B)
(i) independently of the contract;
(ii) on account of renegotiation under a renegotiation statute or under a statutory renegotiation article in the contract;
(iii) on account of fines;
(iv) on account of penalties; or
(v) on account of taxes, social security contributions, or the withholding or non-withholding of taxes or social security contributions, whether arising from or independently of the contract.
(C)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3804.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6305(a) | 41:15(a). | R.S. §3737; Oct. 9, 1940, ch. 779, §1, 54 Stat. 1029; May 15, 1951, ch. 75, 65 Stat. 41; Pub. L. 103–355, title II, §2451, Oct. 13, 1994, 108 Stat. 3324; Pub. L. 104–106, div. D, title XLIII, §4321(i)(9), Feb. 10, 1996, 110 Stat. 676. |
| 6305(b)(1) | 41:15(b) (words before par. (1) less words related to minimum amount). | |
| 6305(b)(2) | 41:15(b) (words before par. (1) related to minimum amount). | |
| 6305(b)(3) | 41:15(b)(1). | |
| 6305(b)(4) | 41:15(b)(2) (related to full balance due). | |
| 6305(b)(5) | 41:15(b)(2) (related to single assignment). | |
| 6305(b)(6) | 41:15(b)(3). | |
| 6305(b)(7) | 41:15(c). | |
| 6305(b)(8) | 41:15(d). | |
| 6305(b)(9)(A) | 41:15(e). | |
| 6305(b)(9)(B) | 41:15(f) (less parenthetical phrase in par. (3)). | |
| 6305(b)(9)(C) | 41:15(f) (parenthetical phrase in par. (3)), (g). |
In subsection (a), the words "The party to whom the Federal Government gives a contract or order" are substituted for "the party to whom such contract or order is given" for clarity. The words "A purported transfer in violation of this subsection" are substituted for "any such transfer" because an actual transfer is precluded by this provision.
In subsection (b)(1), the words "amounts due from the Federal Government" are substituted for "moneys due or to become due from the United States or from any agency or department thereof" to eliminate unnecessary words. The words "may be assigned" are added to provide explicitly for authority that is necessarily implied by the source provision.
In subsection (b)(3), the words "in the case of any contract entered into after October 9, 1940" are omitted as obsolete.
In subsection (b)(5), the words "participating in such financing" are omitted as unnecessary.
In subsection (b)(8), the words "is not liable to make any refund to the Federal Government" are substituted for "no [liability] . . . shall create or impose any liability on the part of the assignee to make restitution, refund, or repayment to the United States of any amount heretofore since July 1, 1950, or hereafter received under the assignment" to eliminate unnecessary words. The words "an assignor's liability to the Federal Government" are substituted for "liability of any nature of the assignor to the United States or any department or agency thereof " for clarity and to eliminate unnecessary words.
In subsection (b)(9)(A), the words "except any such contract under which full payment has been made" are omitted as unnecessary because subsection (b)(8) precludes refund where full payment has already been made. The words "payments made to an assignee under the contract" are substituted for "payments to be made to the assignee of any moneys due or to become due under such contract" to eliminate unnecessary words.
In subsection (b)(9)(B), the words "When a 'no reduction or setoff ' provision as described in subparagraph (A) is included in a contract" are substituted for "If a provision described in subsection (e) of this section or a provision to the same general effect has been at any time heretofore or is hereafter included or inserted in any such contract", the words "payments to the assignee" are substituted for "payments to be made thereafter to an assignee of any moneys due or to become due", and the words "an assignor's liability" are substituted for "any liability of any nature of the assignor to the United States or any department or agency thereof ", for clarity and to eliminate unnecessary words.
In subsection (b)(9)(C), the text of 40:15(g), which provided that nothing in 40:15 affected rights and obligations accrued before subsection (g) was added by the Act of May 15, 1951 (ch. 75, 65 Stat. 41), is omitted as obsolete.
Executive Documents
Delegation of Authority
Memorandum of President of the United States, Oct. 3, 1995, 60 F.R. 52289, provided:
Memorandum for the Heads of Executive Departments and Agencies
Section 2451 of the Federal Acquisition Streamlining Act of 1994, Public Law 103–355 ([amending former] 41 U.S.C. 15 [see 41 U.S.C. 6305]) ("Act"), provides, in part, that "[a]ny contract of the Department of Defense, the General Services Administration, the Department of Energy or any other department or agency of the United States designated by the President, except [contracts where] . . . full payment has been made, may, upon a determination of need by the President, provide or be amended without consideration to provide that payments to be made to the assignee of any moneys due or to become due under [the] contract shall not be subject to reduction or set-off."
By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, I hereby designate all other departments and agencies of the United States as subject to this provision. Furthermore, I hereby delegate to the Secretaries of Defense and Energy, the Administrator of General Services, and the heads of all other departments and agencies, the authority under section 2451 of the Act to make determinations of need for their respective agency's contracts, subject to such further guidance as issued by the Office of Federal Procurement Policy.
The authority delegated by this memorandum may be further delegated within the departments and agencies.
This memorandum shall be published in the Federal Register.
William J. Clinton.
§6306. Prohibition on Members of Congress making contracts with Federal Government
(a)
(b)
(1)
(2)
(A) the Agricultural Adjustment Act (7 U.S.C. 601 et seq.);
(B) the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.); or
(C) the Home Owners' Loan Act (12 U.S.C. 1461 et seq.).
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3805.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6306(a) | 41:22 (1st sentence). | R.S. §3741; Feb. 27, 1877, ch. 69, (16th complete par. on p. 249), 19 Stat. 249; Pub. L. 103–355, title VI, §6004, Oct. 13, 1994, 108 Stat. 3364; Pub. L. 104–106, div. D, title XLIII, §4321(i)(12), Feb. 10, 1996, 110 Stat. 676. |
| 6306(b) | 41:22 (last sentence). | Jan. 25, 1934, ch. 5, (related to R.S. §3741), 48 Stat. 337; June 27, 1934, ch. 847, title V, §510, 48 Stat. 1264; Aug. 26, 1937, ch. 821, 50 Stat. 838. |
In subsection (b)(2), the words "Emergency Farm Mortgage Act of 1933" and "Federal Farm Mortgage Corporation Act" are omitted because all provisions of those Acts have previously been executed or repealed.
In subsection (b)(2)(B), the words "Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.)" are substituted for "Federal Farm Loan Act" and "Farm Credit Act of 1933" because of section 5.40(a), formerly 5.26(a), of the Farm Credit Act of 1971 (Pub. L. 92–181, 12 U.S.C. 2001 note).
In subsection (b)(2)(C), the words "Home Owners' Loan Act" are substituted for "Home Owners' Loan Act of 1933" because of the amendment to 12:1461 made by Public Law 101–73.
§6307. Contracts with Federal Government-owned establishments and availability of appropriations
An order or contract placed with a Federal Government-owned establishment for work, material, or the manufacture of material pertaining to an approved project is deemed to be an obligation in the same manner that a similar order or contract placed with a commercial manufacturer or private contractor is an obligation. Appropriations remain available to pay an obligation to a Federal Government-owned establishment just as appropriations remain available to pay an obligation to a commercial manufacturer or private contractor.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3806.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6307 | 41:23. | June 5, 1920, ch. 240, (last par. under heading "Purchase of Articles Manufactured at Government Arsenals"), 41 Stat. 975. |
| July 1, 1922, ch. 259, (1st proviso on p. 812), 42 Stat. 812. |
The words "heretofore or" are omitted as obsolete. The word "hereafter" is omitted as unnecessary because the provision is restated as permanent law rather than as part of a fiscal year appropriation.
§6308. Contracts for transportation of Federal Government securities
When practicable, a contract for transporting bullion, cash, or securities of the Federal Government shall be awarded to the lowest responsible bidder after notice to all parties with means of transportation.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3806.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6308 | 41:24. | July 7, 1884, ch. 332, (words after "fifty five thousand dollars" in 3d par. under heading "Miscellaneous Objects Under the Treasury Department"), 23 Stat. 204. |
The words "bullion, cash, or securities of the Federal Government" are substituted for "moneys, bullion, coin, notes, bonds, and other securities of the United States, and paper" to eliminate unnecessary words. The word "awarded" is substituted for "let" to use more modern terminology.
§6309. Honorable discharge certificate in lieu of birth certificate
(a)
(b)
(1) engaged in—
(A) the production, maintenance, or storage of arms, armament, ammunition, implements of war, munitions, machinery, tools, clothing, food, fuel, or any articles or supplies, or parts or ingredients of any articles or supplies; or
(B) the construction, reconstruction, repair, or installation of a building, plant, structure, or facility; and
(2) engaged in the activity described in paragraph (1) under—
(A) a contract with the Federal Government; or
(B) any contract that the President, the Secretary of the Army, the Secretary of the Air Force, the Secretary of the Navy, or the Secretary of the Department in which the Coast Guard is operating certifies to the employer to be necessary to the national defense.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3806; Pub. L. 116–283, div. A, title IX, §927(e), Jan. 1, 2021, 134 Stat. 3832.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6309(a) | 41:49. | June 22, 1942, ch. 432, §1, 56 Stat. 375. |
| 6309(b) | 41:50. | June 22, 1942, ch. 432, §2, 56 Stat. 376; Pub. L. 97–31, §12(16), Aug. 6, 1981, 95 Stat. 154. |
In subsection (a), the words "Air Force" are added because of section 207(a) and (f) of the National Security Act of 1947 (ch. 343, 61 Stat. 502, 503). Section 207(a) and (f) was repealed by section 53 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 676). Section 1 of the Act of August 10, 1956 (70A Stat. 1) enacted Title 10, "Armed Forces" and under subtitle D of title 10 the Department of the Air Force remained an independent administrative entity in the Department of Defense.
Subsection (b)(2)(B) is set out as a separate provision to clarify that the certification applies only to contracts other than contracts with the Federal Government. If the certification were to be construed as applying to all contracts, then the words "under a contract with the United States or" in section 2 of the Act of June 22, 1942, would be rendered meaningless.
In subsection (b)(2)(B), the words "Secretary of the Army" are substituted for "Secretary of War", and the words "Secretary of the Air Force" are added, because of sections 205(a) and 207(a) and (f) of the National Security Act of 1947 (ch. 343, 61 Stat. 501, 502, 503). Sections 205(a) and 207(a) and (f) were repealed by section 53 of the Act of August 10, 1956 (ch. 1041, 70A Stat. 676). Section 1 of the Act of August 10, 1956 (70A Stat. 1) enacted Title 10, "Armed Forces" and under sections 3010 to 3013 and 8010 to 8013 the Departments of the Army and Air Force remained under the administrative supervision of the Secretaries of the Army and Air Force, respectively. The words "Secretary of the Department in which the Coast Guard is operating" are substituted for "Secretary of Transportation" because of 6:468(b) and (h), 551(d), and 552(d), 14:1 and 3, and the Department of Homeland Security Reorganization Plan of November 25, 2002 (H. Doc. No. 108–16, 108th Cong., 1st Sess. (6 U.S.C. 542 note)).
Editorial Notes
Amendments
2021—Subsec. (a). Pub. L. 116–283 inserted "Space Force," after "Marine Corps,".
§6310. Requirement for agencies to buy domestically made United States flags
(a)
(b)
(c)
(1) Procurements by vessels in foreign waters.
(2) Procurements for resale purposes in any military commissary, military exchange, or nonappropriated fund instrumentality operated by an agency.
(3) Procurements for amounts less than the simplified acquisition threshold.
(d)
(1)
(2)
(e)
(1)
(2)
(Added Pub. L. 118–74, §2(a)(1), July 30, 2024, 138 Stat. 1505.)
Effective Date
Pub. L. 118–74, §2(b), July 30, 2024, 138 Stat. 1506, provided that: "Section 6310 of title 41, United States Code, as added by subsection (a)(1), shall apply with respect to any contract entered into on or after the date that is 180 days after the date of the enactment of this Act [July 30, 2024]."
CHAPTER 65—CONTRACTS FOR MATERIALS, SUPPLIES, ARTICLES, AND EQUIPMENT EXCEEDING $10,000
§6501. Definitions
In this chapter—
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3807.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6501(1) | 41:35 (matter before subsec. (a) related to definition of "agency of the United States"). | June 30, 1936, ch. 881, §1 (matter before subsec. (a) related to definition of "agency of the United States"), 49 Stat. 2036; Pub. L. 103–355, title VII, §7201(1), Oct. 13, 1994, 108 Stat. 3378. |
| 6501(2) | 41:41. | June 30, 1936, ch. 881, §7, 49 Stat. 2039; Pub. L. 95–598, title III, §326, Nov. 6, 1978, 92 Stat. 2679. |
| 6501(3) | no source. |
Executive Documents
Ex. Ord. No. 13126. Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor
Ex. Ord. No. 13126, June 12, 1999, 64 F.R. 32383, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to continue the executive branch's commitment to fighting abusive child labor practices, it is hereby ordered as follows:
(a) Required Solicitation Provisions. Each solicitation of offers for a contract for the procurement of a product included on the list published under section 2 of this order shall include the following provisions:
(1) A provision that requires the contractor to certify to the contracting officer that the contractor or, in the case of an incorporated contractor, a responsible official of the contractor has made a good faith effort to determine whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under the contract and that, on the basis of those efforts, the contractor is unaware of any such use of child labor; and
(2) A provision that obligates the contractor to cooperate fully in providing reasonable access to the contractor's records, documents, persons, or premises if reasonably requested by authorized officials of the contracting agency, the Department of the Treasury, or the Department of Justice, for the purpose of determining whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under the contract.
(b) Investigations. Whenever a contracting officer of an executive agency has reason to believe that forced or indentured child labor was used to mine, produce, or manufacture a product furnished pursuant to a contract subject to the requirements of subsection 3(a) of this order, the head of the executive agency shall refer the matter for investigation to the Inspector General of the executive agency and, as the head of the executive agency or the Inspector General determines appropriate, to the Attorney General and the Secretary of the Treasury.
(c) Remedies.
(1) The head of an executive agency may impose remedies as provided in this subsection in the case of a contractor under a contract of the executive agency if the head of the executive agency finds that the contractor:
(i) Has furnished under the contract products that have been mined, produced, or manufactured by forced or indentured child labor or uses forced or indentured child labor in the mining, production, or manufacturing operations of the contractor;
(ii) Has submitted a false certification under subsection 3(a)(1) of this order; or
(iii) Has failed to cooperate in accordance with the obligation imposed pursuant to subsection 3(a)(2) of this order.
(2) The head of an executive agency, in his or her sole discretion, may terminate a contract on the basis of any finding described in subsection 3(c)(1) of this order for any contract entered into after the date the regulation called for in section 3 of this order is published in final.
(3) The head of an executive agency may debar or suspend a contractor from eligibility for Federal contracts on the basis of a finding that the contractor has engaged in an act described in subsection 3(c)(1) of this order. The provision for debarment may not exceed 3 years.
(4) The Administrator of General Services shall include on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs (maintained by the Administrator as described in the Federal Acquisition Regulation) each party that is debarred, suspended, proposed for debarment or suspension, or declared ineligible by the head of an agency on the basis that the person has engaged in an act described in subsection 3(c)(1) of this order.
(5) This section shall not be construed to limit the use of other remedies available to the head of an executive agency or any other official of the Federal Government on the basis of a finding described in subsection 3(c)(1) of this order.
(b) This order does not apply to a contract that is for the procurement of any product, or any article, material, or supply contained in a product that is mined, produced, or manufactured in any foreign country if:
(1) the foreign country is a party to the Agreement on Government Procurement annexed to the WTO Agreement or a party to the North American Free Trade Agreement ("NAFTA"); and
(2) the contract is of a value that is equal to or greater than the United States threshold specified in the Agreement on Government Procurement annexed to the WTO Agreement or NAFTA, whichever is applicable.
(b) "WTO Agreement" means the Agreement Establishing the World Trade Organization, entered into on April 15, 1994.
(c) "Forced or indentured child labor" means all work or service (1) exacted from any person under the age of 18 under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily; or (2) performed by any person under the age of 18 pursuant to a contract the enforcement of which can be accomplished by process or penalties.
William J. Clinton.
§6502. Required contract terms
A contract made by an agency of the United States for the manufacture or furnishing of materials, supplies, articles, or equipment, in an amount exceeding $10,000, shall include the following representations and stipulations:
(1)
(2)
(3)
(4)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3807.)
In the matter before paragraph (1), the words "and entered into" are omitted as unnecessary.
In paragraph (1), the words "under the contract" are substituted for "used in the performance of the contract" in 41:35(a) to eliminate unnecessary words and for consistency in the chapter. The words "Sections 35 to 45 of this title shall apply to all contracts entered into pursuant to invitations for bids issued on or after ninety days from June 30, 1936" in 41:45 are omitted as obsolete.
In paragraph (2), the words "under the contract" are substituted for "used in the performance of the contract" to eliminate unnecessary words and for consistency in the chapter.
In paragraph (3), the words "No individual under 16 years of age" are substituted for "no male person under sixteen years of age and no female person under eighteen years of age" to reflect the interpretation of this provision subsequent to enactment of civil rights laws such as section 703 of the Civil Rights Act of 1964 (42:2000e–2), as carried out by the Department of Labor through 41 C.F.R. Part 50–201.104. The words "incarcerated individual" are substituted for "convict labor" the first time the words appear because the term "convict labor" is ambiguous and may be interpreted to include individuals who are not incarcerated. This would be an inappropriate interpretation because 41:35(c) provides an exception for "convict labor" that satisfies the conditions of 18:1761(c) regarding certain non-Federal prison work projects. The words "or production" are omitted for consistency with the source provisions for paragraphs (1) and (2) and because, in this context, the concept of "production" is included in the words "manufacture or furnishing". The words "under the contract" are substituted for "included in such contract" for consistency in the chapter.
§6503. Breach or violation of required contract terms
(a)
(b)
(1) An amount equal to the sum of $10 per day for each individual under 16 years of age and each incarcerated individual knowingly employed in the performance of the contract.
(2) An amount equal to the sum of each underpayment of wages due an employee engaged in the performance of the contract, including any underpayments arising from deductions, rebates, or refunds.
(c)
(d)
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3808.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6503 | 41:36. | June 30, 1936, ch. 881, §2, 49 Stat. 2037. |
In subsection (b)(1), the words "individual under 16 years of age" are substituted for "male person under sixteen years of age or each female person under eighteen years of age" to reflect the interpretation of this provision subsequent to enactment of civil rights laws such as section 703 of the Civil Rights Act of 1964 (42:2000e–2), as carried out by the Department of Labor through 41 C.F.R. Part 50–201.104. The words "incarcerated individual" are substituted for "convict laborer" because of the exception to convict labor that satisfies the conditions of 18:1761(c). Section 1761 does not apply to non-incarcerated convicts.
Subsection (b)(2) is substituted for "a sum equal to the amount of any deductions, rebates, refunds, or underpayment of wages due to any employee engaged in the performance of such contract" for consistency in the chapter.
In subsection (c), the words "made the contract" and "make other contracts" are substituted for "entering into such contract" and "enter into other contracts", respectively, for consistency in the revised title.
In subsection (d), the words "suit brought by the Attorney General" are substituted for "suits brought in the name of the United States of America by the Attorney General thereof " to eliminate unnecessary words.
§6504. Three-year prohibition on new contracts in case of breach or violation
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3808.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6504 | 41:37. | June 30, 1936, ch. 881, §3, 49 Stat. 2037. |
In this section, the words "or firms" are omitted because of the definition of "person" in 41:41, restated in section 6501 of the revised title.
In subsection (a), the words "or violated" are added for consistency in the chapter.
In subsection (b), the words "contract described in section 6502 of this title" are substituted for "contracts" to clarify the scope of the prohibition. The words "the date of the determination by the Secretary that a breach or violation occurred" are substituted for "the date the Secretary of Labor determines such breach to have occurred" to clarify that the three-year period begins with the date of the Secretary's determination and not with the date of the breach or violation. The words "or violation" are added for consistency in the chapter.
§6505. Exclusions
(a)
(b)
(1) Perishables, including dairy, livestock and nursery products.
(2) Agricultural or farm products processed for first sale by the original producers.
(3) Contracts made by the Secretary of Agriculture for the purchase of agricultural commodities or products of agricultural commodities.
(c)
(1) the carriage of freight or personnel by vessel, airplane, bus, truck, express, or railway line where published tariff rates are in effect; or
(2) common carriers subject to the Communications Act of 1934 (47 U.S.C. 151 et seq.).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3809.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6505 | 41:43. | June 30, 1936, ch. 881, §9, 49 Stat. 2039. |
Editorial Notes
References in Text
The Communications Act of 1934, referred to in subsec. (c)(2), is act June 19, 1934, ch. 652, 48 Stat. 1064, which is classified principally to chapter 5 (§151 et seq.) of Title 47, Telecommunications. For complete classification of this Act to the Code, see section 609 of Title 47 and Tables.
§6506. Administrative provisions
(a)
(b)
(c)
(d)
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3809.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6506 | 41:38. | June 30, 1936, ch. 881, §4, 49 Stat. 2038. |
In subsection (b), the word "rules" is omitted as included in "regulations".
In subsection (c), the words "and to prescribe rules and regulations with respect thereto" are omitted as unnecessary because of subsection (b).
In subsection (d), the words "without regard to the provisions of the civil-service laws", which appear in section 4 of the Walsh-Healey Act (June 30, 1936, ch. 881, 49 Stat. 2038), are omitted as obsolete because of Executive Order 8743, April 23, 1941 (5 U.S.C. 3301 note), issued by the President pursuant to the Act of November 26, 1940, ch. 919, title I, §1, 54 Stat. 1211. The words "the Classification Act of 1923", which appear in section 4 of the Walsh-Healey Act (June 30, 1936, ch. 881, 49 Stat. 2038), are considered to be a reference to the Classification Act of 1949 because of section 1106(a) of the Classification Act of 1949 (Oct. 28, 1949, ch. 782, 63 Stat. 972). The words "chapter 51 and subchapter III of chapter 53 of title 5" are substituted for the reference to the Classification Act of 1949 because of section 7(b) of Public Law 89–554 (5 U.S.C. note prec. 101).
§6507. Hearing authority and procedures
(a)
(b)
(c)
(d)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3809.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6507(a) | 41:43a(b) (1st sentence). | June 30, 1936, ch. 881, §10(b) (1st sentence), as added June 30, 1952, ch. 530, title III, §301, 66 Stat. 308; Pub. L. 104–106, div. D, title XLIII, §4321(f)(2), Feb. 10, 1996, 110 Stat. 675. |
| 6507(b)–(f) | 41:39. | June 30, 1936, ch. 881, §5, 49 Stat. 2038. |
In subsection (d), the word "contumacy" is omitted as included in "refuses or fails". The words "may bring an action to enforce the order" are substituted for "upon the application by" for consistency in the revised title and with other titles of the United States Code. The words "the United States District Court for the District of Columbia" in section 5 of the Act of June 30, 1936 (which were substituted for "the Supreme Court of the District of Columbia" by section 32(b) of the Act of June 25, 1948 (ch. 646, 62 Stat. 991), as amended by section 127 of the Act of May 24, 1949 (ch. 139, 63 Stat. 107), and which were editorially omitted from 41:39) are omitted as included in "a district court of the United States" because of sections 88 and 132(a) of title 28, United States Code. The words "within the court's judicial district"' are substituted for "within the jurisdiction of which" for clarity and for consistency in the revised title and with other titles of the United States Code. The words "requiring the person to obey the order issued under subsection (c)" are substituted for "requiring such person to appear before him or representative designated by him, to produce evidence if, as, and when so ordered, and to give testimony relating to the matter under investigation or in question" for clarity and to eliminate unnecessary words.
In subsection (e), the duty to make findings of fact is restated as a duty of the Secretary (or the Secretary's representative). The grammatical structure of the last sentence of 41:39 seems to suggest that the court, rather than the Secretary (or the Secretary's representative), serves as fact finder. However, the provision taken as a whole indicates that it is the Secretary (or the Secretary's representative) who serves as fact finder. It is the Secretary (or the Secretary's representative) before whom hearings are held, witnesses testify, and evidence is produced. The court's involvement is limited to compelling recalcitrant witnesses "to appear before him [the Secretary] or representative designated by him". The restatement clarifies the generally accepted understanding that the Secretary (or the Secretary's representative) serves as fact finder (see, e.g., United States v. Sweet Briar, 92 F. Supp. 777, 780 (W.D.S.C. 1950) ("the Secretary 'shall make findings of fact' "); Ready-Mix Concrete Company v. United States, 158 F. Supp. 571, 578 (Cl. Ct. 1958) ("the findings of the Department of Labor")).
§6508. Authority to make exceptions
(a)
(b)
(c)
(d)
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3810.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6508(a) | 41:40 (1st sentence). | June 30, 1936, ch. 881, §6, 49 Stat. 2038; June 28, 1940, ch. 440, title I, §13, 54 Stat. 681. |
| 6508(b) | 41:40 (2d sentence). | |
| 6508(c) | 41:40 (3d sentence). | |
| 6508(d) | 41:40 (last sentence less proviso). | |
| 6508(e) | 41:40 (last sentence proviso). |
In subsection (a), the words "an agency of the United States" are substituted for "the contracting agency or department" for consistency in the chapter. Commas are inserted after "exceptions" and "otherwise" to clarify that the words "when justice or the public interest will be served" apply to exceptions in "specific cases" as well as "otherwise". The word "thereby" is omitted as unnecessary.
In subsection (b), the words "an agency of the United States" are substituted for "the contracting agency", and the words "minimum wages" are substituted for "minimum rates of pay", for consistency in the chapter.
In subsection (c), the word "rules" is omitted as included in "regulations". The words "as hereinbefore described" are omitted as unnecessary. The words "minimum wages" are substituted for "minimum rates of pay" for consistency in the chapter.
In subsection (d), the words "received by any employee affected" are omitted as unnecessary.
In subsection (e), the words "or all" are omitted as unnecessary.
§6509. Other procedures
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3810.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6509(a) | 41:43a(a). | June 30, 1936, ch. 881, §10(a), (b) (last sentence), (c), as added June 30, 1952, ch. 530, title III, §301, 66 Stat. 308; Pub. L. 103–355, title VII, §7201(2), (3), Oct. 13, 1994, 108 Stat. 3378. |
| 6509(b) | 41:43a(c). | |
| 6509(c) | 41:43a(b) (last sentence). |
Subsection (a) is substituted for "Notwithstanding any provision of section 4 of the Administrative Procedure Act, such Act shall be applicable in the administration of sections 1 to 5 and 7 to 9 of this Act" in section 10 of the Act of June 30, 1936 (ch. 881), for consistency in the revised title and because of section 7(b) of Public Law 89–554 (5 U.S.C. note prec. 101).
In subsection (c), the words "has the right of judicial review" are substituted for "Review . . . may be had" for consistency with subsection (b) and with section 6510(b) of the revised title and because the review provided for in chapter 7 of title 5 is denominated as judicial review. The words "chapter 7 of title 5" are substituted for "section 10 of the Administrative Procedure Act" on authority of section 7(b) of Public Law 89–554 (5 U.S.C. note prec. 101).
§6510. Manufacturers and regular dealers
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3811.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6510 | 41:43b. | June 30, 1936, ch. 881, §11, as added Pub. L. 103–355, title VII, §7201(4), Oct. 13, 1994, 108 Stat. 3378; Pub. L. 104–106, div. D, title XLIII, §4321(f)(1)(A), Feb. 10, 1996, 110 Stat. 675. |
In subsection (a), the words "an agency of the United States" are substituted for "any executive department, independent establishment, or other agency or instrumentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States" because of the definition in section 6501 of the revised title.
§6511. Effect on other law
This chapter may not be construed to modify or amend the following provisions:
(1) Chapter 83 of this title.
(2) Sections 3141 to 3144, 3146, and 3147 of title 40.
(3) Chapter 307 of title 18.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3811.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6511 | 41:42. | June 30, 1936, ch. 881, §8, 49 Stat. 2039. |
Paragraph (1) is substituted for "Title III of the act entitled 'An Act making appropriations for the Treasury and Post Office Departments for the fiscal year ending June 30, 1934, and for other purposes', approved May 3, 1933 (commonly known as the Buy American Act)" for consistency in the revised title and to correct an error in the source, which incorrectly gives May 3, 1933, rather than March 3, 1933, as the date of approval.
Paragraph (2) is substituted for "the Act entitled 'An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes', approved March 3, 1931 (commonly known as the Bacon-Davis Act), as amended from time to time" because of section 5(c) of Public Law 107–217 (40 U.S.C. note prec. 101) and for consistency with title 40.
The words "the labor provisions of Title II of the National Industrial Recovery Act, approved June 16, 1933, as extended" are omitted as obsolete because of section 201 of the Act of June 21, 1938 (ch. 554, 52 Stat. 816), as amended by the Acts of June 27, 1940 (ch. 437, 54 Stat. 633), April 5, 1941 (ch. 40, 55 Stat. 110), and June 27, 1942 (ch. 450, 56 Stat. 410).
The words "or [the labor provisions] of section 7 of the Emergency Relief Appropriation Act, approved April 8, 1935" are omitted as obsolete. The intended reference was probably to section 7 of the Emergency Relief Appropriation Act of 1935 (49 Stat. 118). Section 7 of the Emergency Relief Appropriation Act of 1935 provided that the President shall require certain rates of pay for persons engaged in carrying out projects that were financed by amounts being appropriated in that Act.
Paragraph (3) is substituted for "the Act entitled 'An Act to provide for the diversification of employment of Federal prisoners, for their training and schooling in trades and occupations, and for other purposes', approved May 27, 1930, as amended and supplemented by the Act approved June 23, 1934" for consistency with title 18. The Act of May 27, 1930 (ch. 340, 46 Stat. 391) and the Act of June 23, 1934 (ch. 736, 48 Stat. 1211), which were classified to sections 744a to 744n of former title 18, were substantially repealed and were replaced by chapter 307 and section 4162 of title 18 in the codification of title 18 by the Act of June 25, 1948 (ch. 645, 62 Stat. 683). Subsequently, section 4162 of title 18 was repealed by section 218(a)(4) of Public Law 98–473 (98 Stat. 2027).
CHAPTER 67—SERVICE CONTRACT LABOR STANDARDS
§6701. Definitions
In this chapter:
(1)
(2)
(3)
(A) means an individual engaged in the performance of a contract made by the Federal Government and not exempted under section 6702(b) of this title, whether negotiated or advertised, the principal purpose of which is to furnish services in the United States;
(B) includes an individual without regard to any contractual relationship alleged to exist between the individual and a contractor or subcontractor; but
(C) does not include an individual employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in part 541 of title 29, Code of Federal Regulations.
(4)
(A) includes any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, the outer Continental Shelf as defined in the Outer Continental Shelf Lands Act (43 U.S.C. §1331 et seq.), American Samoa, Guam, Wake Island, and Johnston Island; but
(B) does not include any other territory under the jurisdiction of the United States or any United States base or possession within a foreign country.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3811.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6701 | 41:357. | Pub. L. 89–286, §8, Oct. 22, 1965, 79 Stat. 1036; Pub. L. 93–57, §1, July 6, 1973, 87 Stat. 140; Pub. L. 94–489, §3, Oct. 13, 1976, 90 Stat. 2358. |
In paragraph (3), the word "individual" is substituted for "person" because of the definition of "person" in 1:1. The words "contract made by the Federal Government" are substituted for "contract entered into by the United States" for consistency in the revised title. The words "as of July 30, 1976, and any subsequent revision of those regulations" are omitted as obsolete.
In paragraph (4)(A), the words "the outer Continental Shelf" are substituted for "Outer Continental Shelf lands" for consistency with the definition in 43:1331 and for consistency with the more common usage generally found in subchapter III of chapter 29 of title 43. The words "Eniwetok Atoll, Kwajalein Atoll" are omitted because they are part of the Marshall Islands and therefore no longer part of the United States. The words "Canton Island" are omitted because it is part of Kiribati and therefore no longer part of the United States.
Editorial Notes
References in Text
The Outer Continental Shelf Lands Act, referred to in par. (4)(A), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, which is classified generally to subchapter III (§1331 et seq.) of chapter 29 of Title 43, Public Lands. For complete classification of this Act to the Code, see Short Title note set out under section 1301 of Title 43 and Tables.
§6702. Contracts to which this chapter applies
(a)
(1) is made by the Federal Government or the District of Columbia;
(2) involves an amount exceeding $2,500; and
(3) has as its principal purpose the furnishing of services in the United States through the use of service employees.
(b)
(1) a contract of the Federal Government or the District of Columbia for the construction, alteration, or repair, including painting and decorating, of public buildings or public works;
(2) any work required to be done in accordance with chapter 65 of this title;
(3) a contract for the carriage of freight or personnel by vessel, airplane, bus, truck, express, railway line or oil or gas pipeline where published tariff rates are in effect;
(4) a contract for the furnishing of services by radio, telephone, telegraph, or cable companies, subject to the Communications Act of 1934 (47 U.S.C. 151 et seq.);
(5) a contract for public utility services, including electric light and power, water, steam, and gas;
(6) an employment contract providing for direct services to a Federal agency by an individual; and
(7) a contract with the United States Postal Service, the principal purpose of which is the operation of postal contract stations.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3812.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6702(a) | 41:351(a) (words before par. (1) related to applicability). | Pub. L. 89–286, §2(a) (words before par. (1) related to applicability), Oct. 22, 1965, 79 Stat. 1034; Pub. L. 94–489, §1(a), Oct. 13, 1976, 90 Stat. 2358. |
| 6702(b) | 41:356. | Pub. L. 89–286, §7, Oct. 22, 1965, 79 Stat. 1035. |
In subsection (b)(2), the words "the Walsh-Healey Public Contracts Act (49 Stat. 2036)", which appear in section 7(2) of Public Law 89–286 (79 Stat. 1036), are treated as a reference to the Act of June 30, 1936 (ch. 881, 49 Stat. 2036), which was known as the Walsh-Healey Act and which was subsequently designated as the Walsh-Healey Act by section 12 of the Act of June 30, 1936, which was added by section 10005(f)(5) of Public Law 103–355 (108 Stat. 3409).
In subsection (b)(7), the words "United States Postal Service" are substituted for "Post Office Department" because of sections 4(a) and 6(o) of the Postal Reorganization Act (Public Law 91–375, 84 Stat. 773, 783, 39 U.S.C. note prec. 101, 201 note).
Editorial Notes
References in Text
The Communications Act of 1934, referred to in subsec. (b)(4), is act June 19, 1934, ch. 652, 48 Stat. 1064, which is classified principally to chapter 5 (§151 et seq.) of Title 47, Telecommunications. For complete classification of this Act to the Code, see section 609 of Title 47 and Tables.
§6703. Required contract terms
A contract, and bid specification for a contract, to which this chapter applies under section 6702 of this title shall contain the following terms:
(1)
(2)
(3)
(4)
(5)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3812.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6703 | 41:351(a) (words before par. (1) related to required contract terms), (1)–(5). | Pub. L. 89–286, §2(a) (words before par. (1) related to required contract terms), (1)–(5), Oct. 22, 1965, 79 Stat. 1034; Pub. L. 92–473, §§1, 2, Oct. 9, 1972, 86 Stat. 789; Pub. L. 94–489, §2, Oct. 13, 1976, 90 Stat. 2358. |
Executive Documents
Executive Order No. 13495
Ex. Ord. No. 13495, Jan. 30, 2009, 74 F.R. 6103, which provided for nondisplacement of qualified workers under a successor service contract upon the expiration of the predecessor contract, was revoked by Ex. Ord. No. 13897, §1, Oct. 31, 2019, 84 F.R. 59709, formerly set out below.
Executive Order No. 13897
Ex. Ord. No. 13897, Oct. 31, 2019, 84 F.R. 59709, which related to the revocation of Ex. Ord. No. 13495, formerly set out above, was revoked by Ex. Ord. No. 14055, §9, Nov. 18, 2021, 86 F.R. 66400, set out below.
Ex. Ord. No. 14055. Nondisplacement of Qualified Workers Under Service Contracts
Ex. Ord. No. 14055, Nov. 18, 2021, 86 F.R. 66397, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, [see] 40 U.S.C. 101 et seq. [and 41 U.S.C. 101 et seq.], and in order to promote economy and efficiency in procurement, it is hereby ordered as follows:
(a) "Service contract" or "contract" means any contract, contract-like instrument, or subcontract for services entered into by the Federal Government or its contractors that is covered by the Service Contract Act of 1965, as amended, [see] 41 U.S.C. 6701 et seq., and its implementing regulations.
(b) "Employee" means a service employee as defined in the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3).
(c) "Agency" means an executive department or agency, including an independent establishment subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A).
"Nondisplacement of Qualified Workers: (a) The contractor and its subcontractors shall, except as otherwise provided herein, in good faith offer service employees (as defined in the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3)) employed under the predecessor contract and its subcontracts whose employment would be terminated as a result of the award of this contract or the expiration of the contract under which the employees were hired, a right of first refusal of employment under this contract in positions for which those employees are qualified. The contractor and its subcontractors shall determine the number of employees necessary for efficient performance of this contract and may elect to employ more or fewer employees than the predecessor contractor employed in connection with performance of the work solely on the basis of that determination. Except as provided in paragraph (b), there shall be no employment opening under this contract or subcontract, and the contractor and any subcontractors shall not offer employment under this contract to any person prior to having complied fully with the obligations described in this clause. The contractor and its subcontractors shall make an express offer of employment to each employee as provided herein and shall state the time within which the employee must accept such offer, but in no case shall the period within which the employee must accept the offer of employment be less than 10 business days.
"(b) Notwithstanding the obligation under paragraph (a) above, the contractor and any subcontractors (1) are not required to offer a right of first refusal to any employee(s) of the predecessor contractor who are not service employees within the meaning of the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3), and (2) are not required to offer a right of first refusal to any employee(s) of the predecessor contractor for whom the contractor or any of its subcontractors reasonably believes, based on reliable evidence of the particular employees' past performance, that there would be just cause to discharge the employee(s) if employed by the contractor or any subcontractors.
"(c) The contractor shall, not less than 10 business days before the earlier of the completion of this contract or of its work on this contract, furnish the Contracting Officer a certified list of the names of all service employees working under this contract and its subcontracts during the last month of contract performance. The list shall also contain anniversary dates of employment of each service employee under this contract and its predecessor contracts either with the current or predecessor contractors or their subcontractors. The Contracting Officer shall provide the list to the successor contractor, and the list shall be provided on request to employees or their representatives, consistent with the Privacy Act, 5 U.S.C. 552a, and other applicable law.
"(d) If it is determined, pursuant to regulations issued by the Secretary of Labor (Secretary), that the contractor or its subcontractors are not in compliance with the requirements of this clause or any regulation or order of the Secretary, the Secretary may impose appropriate sanctions against the contractor or its subcontractors, as provided in Executive Order (No.) ————, the regulations implementing that order, and relevant orders of the Secretary, or as otherwise provided by law.
"(e) In every subcontract entered into in order to perform services under this contract, the contractor will include provisions that ensure that each subcontractor will honor the requirements of paragraphs (a) and (b) with respect to the employees of a predecessor subcontractor or subcontractors working under this contract, as well as of a predecessor contractor and its subcontractors. The subcontract shall also include provisions to ensure that the subcontractor will provide the contractor with the information about the employees of the subcontractor needed by the contractor to comply with paragraph (c) of this clause. The contractor shall take such action with respect to any such subcontract as may be directed by the Secretary as a means of enforcing such provisions, including the imposition of sanctions for noncompliance: provided, however, that if the contractor, as a result of such direction, becomes involved in litigation with a subcontractor, or is threatened with such involvement, the contractor may request that the United States enter into such litigation to protect the interests of the United States."
(b) Nothing in this order shall be construed to require or recommend that agencies, contractors, or subcontractors pay the relocation costs of employees who exercise their right to work for a successor contractor or subcontractor pursuant to this order.
(b) If an agency determines that performance of the contract in the same locality or localities is reasonably necessary to ensure economical and efficient provision of services, then the agency shall, to the extent consistent with law, include a requirement or preference in the solicitation for the successor contract that it be performed in the same locality or localities.
(a) contracts under the simplified acquisition threshold as defined in 41 U.S.C. 134; or
(b) employees who were hired to work under a Federal service contract and one or more nonfederal service contracts as part of a single job, provided that the employees were not deployed in a manner that was designed to avoid the purposes of this order.
(i) Adhering to the requirements of section 3 of this order would not advance the Federal Government's interests in achieving economy and efficiency in Federal procurement;
(ii) Based on a market analysis, adhering to the requirements of section 3 of this order would:
(A) substantially reduce the number of potential bidders so as to frustrate full and open competition; and
(B) not be reasonably tailored to the agency's needs for the contract; or
(iii) Adhering to the requirements of section 3 of this order would otherwise be inconsistent with statutes, regulations, Executive Orders, or Presidential Memoranda.
(b) To the extent permitted by law and consistent with national security and executive branch confidentiality interests, each agency shall publish, on a centralized public website, descriptions of the exceptions it has granted under this section, and ensure that the contractor notifies affected workers and their collective bargaining representatives, if any, in writing of the agency's determination to grant an exception.
(c) On a quarterly basis, each agency shall report to the Office of Management and Budget descriptions of the exceptions granted under this section.
(b) Within 60 days of the Secretary issuing final regulations, the Federal Acquisition Regulatory Council (FAR Council), to the extent consistent with law, shall amend the Federal Acquisition Regulation to provide for inclusion in Federal procurement solicitations and contracts subject to this order the clause described in section 3 of this order.
(c) The Director of the Office of Management and Budget shall, to the extent consistent with law, issue guidance to implement section 6(c) of this order.
(b) This order creates no rights under the Contract Disputes Act, 41 U.S.C. 7101 et seq., and disputes regarding the requirements of the contract clause prescribed by section 3 of this order, to the extent permitted by law, shall be disposed of only as provided by the Secretary in regulations issued under this order.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
§6704. Limitation on minimum wage
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3813.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6704 | 41:351(b). | Pub. L. 89–286, §2(b), Oct. 22, 1965, 79 Stat. 1034; Pub. L. 94–489, §1(b), Oct. 13, 1976, 90 Stat. 2358. |
§6705. Violations
(a)
(b)
(1)
(2)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3814.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6705(a) | 41:352(a) (1st sentence). | Pub. L. 89–286, §§3, 5(b), Oct. 22, 1965, 79 Stat. 1035. |
| 6705(b)(1) | 41:352(a) (2d–last sentences). | |
| 6705(b)(2) | 41:354(b) | |
| 6705(c) | 41:352(c). | |
| 6705(d) | 41:352(b). |
In subsection (c), the words "to other actions in accordance with this section" are added for clarity.
§6706. Three-year prohibition on new contracts in case of violation
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3814.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6706(a) | 41:354(a) (1st sentence). | Pub. L. 89–286, §5(a) (1st sentence), Oct. 22, 1965, 79 Stat. 1035. |
| 6706(b) | 41:354(a) (2d–last sentences). | Pub. L. 89–286, §5(a) (2d–last sentences), Oct. 22, 1965, 79 Stat. 1035; Pub. L. 92–473, §4, Oct. 9, 1972, 86 Stat. 790. |
In subsection (b), the word "entity" is substituted for "firm, corporation, partnership, or association" to use a single broad term clarifying that the prohibition applies to any kind of organization in which the person or firm has a substantial interest. The words "containing the name of such persons or firms" are omitted as unnecessary. The word "person" is substituted for "individual" for consistency in the subsection.
§6707. Enforcement and administration of chapter
(a)
(b)
(c)
(1)
(2)
(d)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3815.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 6707(a)–(d) | 41:353. | Pub. L. 89–286, §4, Oct. 22, 1965, 79 Stat. 1035; Pub. L. 92–473, §3, Oct. 9, 1972, 86 Stat. 789. |
| 6707(e) | 41:355. | Pub. L. 89–286, §6, Oct. 22, 1965, 79 Stat. 1035. |
| 6707(f) | 41:358. | Pub. L. 89–286, §10, as added Pub. L. 92–473, §5, Oct. 9, 1972, 86 Stat. 790; Pub. L. 94–273, §29, Apr. 21, 1976, 90 Stat. 380. |
In subsection (e), the words "the definition of 'regular rate' under section 7(e) of the Fair Labor Standards Act of 1938 (29 U.S.C. 207(e))" are substituted for "the regular rate under the Fair Labor Standards Act by provisions of section 7(d) thereof " for clarity, to correct the reference to "the Fair Labor Standards Act" in accordance with section 1 of the Fair Labor Standards Act of 1938 (29:201), which provided the short title for the Act, and to correct the reference to "section 7(d) thereof " in accordance with section 204(d)(1) of the Fair Labor Standards Amendments of 1966 (Public Law 89–601, 80 Stat. 836), which amended the Fair Labor Standards Act of 1938 by redesignating section 7(d) as 7(e).
In subsection (f), the words "paragraphs (1) and (2) of section 2", which appear in section 10 of the Service Contract Act of 1965, as added by section 5 of Public Law 92–473 (86 Stat. 790), are treated as a reference to paragraphs (1) and (2) of section 2(a) of the Service Contract Act of 1965 to reflect the probable intent of Congress. The words "which are entered into during the applicable fiscal year", 41:358(1)–(4), and the words "On and after July 1, 1976" are omitted as obsolete.
Subtitle III—Contract Disputes
CHAPTER 71—CONTRACT DISPUTES
§7101. Definitions
In this chapter:
(1)
(2)
(A) the Armed Services Board;
(B) the Civilian Board;
(C) the board of contract appeals of the Tennessee Valley Authority; or
(D) the Postal Service Board established under section 7105(d)(1) of this title.
(3)
(4)
(5)
(6)
(A) means an individual who, by appointment in accordance with applicable regulations, has the authority to make and administer contracts and to make determinations and findings with respect to contracts; and
(B) includes an authorized representative of the contracting officer, acting within the limits of the representative's authority.
(7)
(8)
(A) an executive department as defined in section 101 of title 5;
(B) a military department as defined in section 102 of title 5;
(C) an independent establishment as defined in section 104 of title 5, except that the term does not include the Government Accountability Office; and
(D) a wholly owned Government corporation as defined in section 9101(3) of title 31.
(9)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3816.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 7101 | 41:601. | Pub. L. 95–563, §2, Nov. 1, 1978, 92 Stat. 2383; Pub. L. 104–106, div. D, title XLIII, §4322(b)(5), Feb. 10, 1996, 110 Stat. 677; Pub. L. 109–163, div. A, title VIII, §847(d)(1), Jan. 6, 2006, 119 Stat. 3393. |
In paragraph (8)(C), the words "Government Accountability Office" are substituted for "General Accounting Office" because of section 8(b) of the GAO Human Capital Reform Act of 2004 (Public Law 108–271, 118 Stat. 814, 31 U.S.C. 702 note).
In paragraph (8)(D), the words "section 9101(3) of title 31" are substituted for "section 846 of title 31" because of section 4(b) of Public Law 97–258 (31 U.S.C. note prec. 101).
§7102. Applicability of chapter
(a)
(1) the procurement of property, other than real property in being;
(2) the procurement of services;
(3) the procurement of construction, alteration, repair, or maintenance of real property; or
(4) the disposal of personal property.
(b)
(1)
(2)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3817.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 7102(a)–(c) | 41:602. | Pub. L. 95–563, §§3, 4, Nov. 1, 1978, 92 Stat. 2383. |
| 7102(d) | 41:603. |
In subsection (c), the words "an agency head" are substituted for "the head of the agency" for consistency with the defined term "agency head" in section 7101 of the revised title.
In subsection (d), the words "chapter 309 or 311 of title 46" are substituted for "the Act of March 9, 1920, as amended (41 Stat. 525, as amended; 46 U.S.C. 741–752) or the Act of March 3, 1925, as amended (43 Stat. 1112, as amended; 46 U.S.C. 781–790)" in section 4 of the Contract Disputes Act of 1978 (Public Law 95–563, 92 Stat. 2384) because of section 18(c) of Public Law 109–304 (46 U.S.C. note prec. 101).
§7103. Decision by contracting officer
(a)
(1)
(2)
(3)
(4)
(A)
(B)
(5)
(b)
(1)
(A) the claim is made in good faith;
(B) the supporting data are accurate and complete to the best of the contractor's knowledge and belief;
(C) the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable; and
(D) the certifier is authorized to certify the claim on behalf of the contractor.
(2)
(3)
(c)
(1)
(2)
(d)
(e)
(f)
(1)
(2)
(A) issue a decision; or
(B) notify the contractor of the time within which a decision will be issued.
(3)
(4)
(5)
(g)
(h)
(1)
(2)
(3)
(A)
(B)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3817.)
In subsection (b)(1)(D) and (2), the word "duly" is omitted as unnecessary.
In subsection (b)(3), the words "of contract appeals" are omitted as unnecessary because of the definition of "agency board" in section 7101 of the revised title.
In subsection (c)(2), the words "this subsection", which appear in section 5 of the Contract Disputes Act of 1978 (Pub. L. 95–563, 92 Stat. 2384), and which were probably intended to mean "this section", are translated as "this paragraph" in accordance with the probable intent of Congress.
In subsection (f)(5), the words "the commencement of" are omitted as unnecessary. The words "of the appeal or action" are substituted for "in the event an appeal or suit is so commenced in the absence of a prior decision by the contracting officer" to eliminate unnecessary words.
§7104. Contractor's right of appeal from decision by contracting officer
(a)
(b)
(1)
(2)
(3)
(4)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3820.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 7104(a) | 41:606. | Pub. L. 95–563, §7, Nov. 1, 1978, 92 Stat. 2385. |
| 7104(b) | 41:609(a). | Pub. L. 95–563, §10(a), Nov. 1, 1978, 92 Stat. 2388; Pub. L. 97–164, title I, §161(10), Apr. 2, 1982, 96 Stat. 49. |
In subsection (a), the words "of contract appeals" are omitted as unnecessary because of the definition of "agency board" in section 7101 of the revised title.
In subsection (b)(1), the words "United States Court of Federal Claims" are substituted for "United States Claims Court" because of section 902(b)(1) of the Federal Courts Administration Act of 1992 (Pub. L. 102–572, 106 Stat. 4516, 28 U.S.C. 171 note).
§7105. Agency boards
(a)
(1)
(2)
(b)
(1)
(2)
(A)
(B)
(3)
(4)
(A)
(B)
(i) jurisdiction over any additional category of laws or disputes over which an agency board of contract appeals established pursuant to section 8 of the Contract Disputes Act exercised jurisdiction before January 6, 2007; and
(ii) any other function the agency board performed before January 6, 2007, on behalf of those agencies.
(c)
(1)
(2)
(d)
(1)
(2)
(3)
(e)
(1)
(A)
(B)
(C)
(D)
(2)
(f)
(g)
(1) to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of disputes;
(2) issue a decision in writing or take other appropriate action on each appeal submitted; and
(3) mail or otherwise furnish a copy of the decision to the contractor and the contracting officer.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3820; Pub. L. 111–259, title IV, §422, Oct. 7, 2010, 124 Stat. 2727; Pub. L. 111–383, div. A, title X, §1075(o), Jan. 7, 2011, 124 Stat. 4378.)
Amendments Not Shown in Text
Subsecs. (b) and (e)(1)(A), (B), (D) and (2) of this section were derived from sections 438 and 607(d), respectively, of former Title 41, Public Contracts. Sections 438 and 607(d) were amended by Pub. L. 111–383, div. A, title X, §1075(o), Jan. 7, 2011, 124 Stat. 4378, and Pub. L. 111–259, title IV, §422, Oct. 7, 2010, 124 Stat. 2727, respectively, prior to being repealed and reenacted as subsecs. (b) and (e)(1)(A), (B), (D) and (2) of this section by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. For applicability of those amendments to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 438 of former Title 41 was amended in subsec. (c)(1) by striking "(41 U.S.C. 607(b))" and inserting "(41 U.S.C. 607(d))" and in subsec. (c)(2)(A) by inserting "of 1978" after "Contract Disputes Act". Section 607(d) of former Title 41 was amended by adding at the end "Notwithstanding any other provision of this section and any other provision of law, an appeal from a decision of a contracting officer of the Central Intelligence Agency relative to a contract made by that Agency may be filed with whichever of the Armed Services Board of Contract Appeals or the Civilian Board of Contract Appeals is specified by such contracting officer as the Board to which such an appeal may be made and such Board shall have jurisdiction to decide that appeal."
In subsection (a)(2), the words "administrative law judges" are substituted for "hearing examiners" because of section 3 of Public Law 95–251 (5 U.S.C. 3105 note). The words "Full-time members of agency boards serving as such on the effective date of this chapter shall be considered qualified" are omitted as obsolete.
In subsection (b), the text of 41 U.S.C. 438 (b)(1)(C) is omitted as obsolete.
In subsection (e)(1)(B) and (C), the words "Postal Regulatory Commission" are substituted for "Postal Rate Commission" because of section 604(f) of the Postal Accountability and Enhancement Act (Public Law 109–435, 120 Stat. 3242, 39 U.S.C. 404 note).
Editorial Notes
References in Text
Section 8 of the Contract Disputes Act, referred to in subsec. (b)(4)(B)(i), probably means section 8 of Pub. L. 95–563, the Contract Disputes Act of 1978, which was classified to former section 607 of this title prior to being repealed and reenacted as subsecs. (a), (c) to (e), and (g) of this section by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855.
§7106. Agency board procedures for accelerated and small claims
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3823.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 7106(a) | 41:607(f). | Pub. L. 95–563, §8(f), Nov. 1, 1978, 92 Stat. 2386; Pub. L. 103–355, title II, §2351(c), Oct. 13, 1994, 108 Stat. 3322. |
| 7106(b) | 41:608. | Pub. L. 95–563, §9, Nov. 1, 1978, 92 Stat. 2387; Pub. L. 103–355, title II, §2351(d), Oct. 13, 1994, 108 Stat 3322; Pub. L. 109–364, div. A, title VIII, §857, Oct. 17, 2006, 120 Stat. 2349. |
In subsection (a), the word "only" is omitted for consistency with a similar provision in 41:608(a) and because the word "only" is redundant with the word "sole".
In subsection (b)(6), the words "from time to time, may review" are substituted for "is authorized to review at least every three years" because the source law, while effectively granting the Administrator authority to conduct the reviews, does not require the Administrator to conduct any reviews, and does not restrict the number of reviews the Administrator may conduct during any time period. The words "beginning with the third year after November 1, 1978" are omitted as obsolete. The words "the dollar amount specified in paragraph (1)" are substituted for "the dollar amount defined in subsection (a) of this section as a small claim" to eliminate unnecessary words and because 41:608(a), restated as paragraph (1), does not explicitly provide a definition for the term "small claim".
Senate Revision Amendment
In subsec. (b)(6), "
§7107. Judicial review of agency board decisions
(a)
(1)
(A) a contractor may appeal the decision to the United States Court of Appeals for the Federal Circuit within 120 days from the date the contractor receives a copy of the decision; or
(B) if an agency head determines that an appeal should be taken, the agency head, with the prior approval of the Attorney General, may transmit the decision to the United States Court of Appeals for the Federal Circuit for judicial review under section 1295 of title 28, within 120 days from the date the agency receives a copy of the decision.
(2)
(A) a contractor may appeal the decision to a United States district court pursuant to section 1337 of title 28, within 120 days from the date the contractor receives a copy of the decision; or
(B) the Tennessee Valley Authority may appeal the decision to a United States district court pursuant to section 1337 of title 28, within 120 days from the date of the decision.
(3)
(b)
(1) the decision of the agency board on a question of law is not final or conclusive; but
(2) the decision of the agency board on a question of fact is final and conclusive and may not be set aside unless the decision is—
(A) fraudulent, arbitrary, or capricious;
(B) so grossly erroneous as to necessarily imply bad faith; or
(C) not supported by substantial evidence.
(c)
(d)
(e)
(f)
(1)
(2)
(3)
(4)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3824.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 7107(a) | 41:607(g). | Pub. L. 95–563, §8(g), Nov. 1, 1978, 92 Stat. 2387; Pub. L. 97–164, title I, §156, Apr. 2, 1982, 96 Stat. 47; Pub. L. 101–552, §6(b), Nov. 15, 1990, 104 Stat. 2746. |
| 7107(b) | 41:609(b). | Pub. L. 95–563, §10(b), (e), Nov. 1, 1978, 92 Stat. 2388. |
| 7107(c) | 41:609(c). | Pub. L. 95–563, §10(c), Nov. 1, 1978, 92 Stat. 2388; Pub. L. 97–164, title I, §157, Apr. 2, 1982, 96 Stat. 47. |
| 7107(d) | 41:609(d). | Pub. L. 95–563, §10(d), Nov. 1, 1978, 92 Stat. 2388; Pub. L. 97–164, title I, §160(a)(15), Apr. 2, 1982, 96 Stat. 48. |
| 7107(e) | 41:609(e). | |
| 7107(f) | 41:609(f). | Pub. L. 95–563, §10(f), as added Pub. L. 103–355, title II, §2354, Oct. 13, 1994, 108 Stat. 3323. |
In subsection (a)(1)(B), the words "may transmit" are substituted for "transmits" to correct the grammatical structure of the provision in accordance with the probable intent of Congress. The words "the decision" are substituted for "the decision of the board of contract appeals" and for "the board's decision" to eliminate unnecessary words and for consistency with 41:607(g)(1)(A).
In subsection (a)(2)(B), the words "in any case" are omitted as unnecessary.
In subsection (d), the words "United States Court of Federal Claims" are substituted for "United States Claims Court" because of section 902(b)(1) of the Federal Courts Administration Act of 1992 (Pub. L. 102–572, 106 Stat. 4516, 28 U.S.C. 171 note).
In subsection (f)(1), (3), and (4), the words "agency board" are substituted for "board of contract appeals" to eliminate unnecessary words and for consistency with the definition of "agency board" in section 7101 of the revised title.
In subsection (f)(1), the words "under consideration" are substituted for "at issue" to avoid potential confusion with the words "issue described in paragraph (2)".
§7108. Payment of claims
(a)
(b)
(c)
(d)
(1)
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3825.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 7108 | 41:612. | Pub. L. 95–563, §13, Nov. 1, 1978, 92 Stat. 2389; Pub. L. 104–106, div. D, title XLIII, §4322(b)(7), Feb. 10, 1996, 110 Stat. 677. |
§7109. Interest
(a)
(1)
(2)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3825.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 7109(a)(1) | 41:611 (1st sentence). | Pub. L. 95–563, §12, Nov. 1, 1978, 92 Stat. 2389. |
| 7109(a)(2) | 41:611 note. | Pub. L. 102–572, title IX, §907(a)(3), Oct. 29, 1992, 106 Stat. 4518. |
| 7109(b) | 41:611 (last sentence). |
In subsection (a)(2), the words "on or after the date of the enactment of this Act", "the later of", and "or the date of the enactment of this Act" are omitted as obsolete.
Subsection (b) is substituted for "The interest provided for in this section shall be paid at the rate established by the Secretary of the Treasury pursuant to Public Law 92–41 (85 Stat. 97) for the Renegotiation Board" to eliminate obsolete language and to codify the criteria under which the interest rate is computed. Section 2(a)(3) of the Act of July 1, 1971 (Pub. L. 92–41, 85 Stat. 97), amended section 105(b)(2) of the Renegotiation Act of 1951 (Mar. 23, 1951, ch. 15, 65 Stat. 13) by adding provisions substantially similar to those enacted here. However, the Renegotiation Act of 1951 (Mar. 23, 1951, ch. 15, 65 Stat. 7) was omitted from the Code pursuant to section 102(c)(1) of the Act (65 Stat. 8), amended several times, the last being Public Law 94–185 (89 Stat. 1061), which provided that most provisions of that Act do not apply to receipts and accruals attributable to contract performance after September 30, 1976, and in view of the termination of the Renegotiation Board and the transfer of property and records of the Board to the Administrator of the General Services Administration on March 31, 1979, pursuant to Public Law 95–431 (92 Stat. 1043). Although the Renegotiation Board is no longer in existence, Federal agencies, including the General Services Administration, are required to use interest rates that are computed under the criteria set out in this subsection. See 31:3902(a) and the website of the Bureau of the Public Debt, available at http://www.publicdebt.treas.gov/opd/opdprmt2.htm. For an example of publication of rates under the criteria enacted here, see Federal Register, volume 67, number 247, page 78566, December 24, 2002.
Subtitle IV—Miscellaneous
CHAPTER 81—DRUG-FREE WORKPLACE
§8101. Definitions and construction
(a)
(1)
(2)
(3)
(4)
(5)
(A) for the performance of work done in connection with a specific contract or grant described in section 8102 or 8103 of this title; and
(B) at which employees of the entity are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in accordance with the requirements of the Anti-Drug Abuse Act of 1988 (Public Law 100–690, 102 Stat. 4181).
(6)
(7)
(8)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3826.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8101(a)(1) | 41:706(7). | Pub. L. 100–690, title V, §§5157, 5158, Nov. 18, 1988, 102 Stat. 4308. |
| 8101(a)(2) | 41:706(3). | |
| 8101(a)(3) | 41:706(4). | |
| 8101(a)(4) | 41:706(5). | |
| 8101(a)(5) | 41:706(1). | |
| 8101(a)(6) | 41:706(2). | |
| 8101(a)(7) | 41:706(8). | |
| 8101(a)(8) | 41:706(6). | |
| 8101(b) | 41:707. |
§8102. Drug-free workplace requirements for Federal contractors
(a)
(1)
(A) publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the person's workplace and specifying the actions that will be taken against employees for violations of the prohibition;
(B) establishing a drug-free awareness program to inform employees about—
(i) the dangers of drug abuse in the workplace;
(ii) the person's policy of maintaining a drug-free workplace;
(iii) available drug counseling, rehabilitation, and employee assistance programs; and
(iv) the penalties that may be imposed on employees for drug abuse violations;
(C) making it a requirement that each employee to be engaged in the performance of the contract be given a copy of the statement required by subparagraph (A);
(D) notifying the employee in the statement required by subparagraph (A) that as a condition of employment on the contract the employee will—
(i) abide by the terms of the statement; and
(ii) notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction;
(E) notifying the contracting agency within 10 days after receiving notice under subparagraph (D)(ii) from an employee or otherwise receiving actual notice of a conviction;
(F) imposing a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted, as required by section 8104 of this title; and
(G) making a good faith effort to continue to maintain a drug-free workplace through implementation of subparagraphs (A) to (F).
(2)
(b)
(1)
(A) the contractor is violating, or has violated, the requirements of subparagraph (A), (B), (C), (D), (E), or (F) of subsection (a)(1); or
(B) the number of employees of the contractor who have been convicted of violations of criminal drug statutes for violations occurring in the workplace indicates that the contractor has failed to make a good faith effort to provide a drug-free workplace as required by subsection (a).
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3827; Pub. L. 115–232, div. A, title VIII, §836(b)(20), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8102 | 41:701. | Pub. L. 100–690, title V, §5152, Nov. 18, 1988, 102 Stat. 4304; Pub. L. 103–355, title IV, §4104(d), title VIII, §8301(f), Oct. 13, 1994, 108 Stat. 3342, 3397; Pub. L. 104–106, div. D, title XLIII, §§4301(a)(3), 4321(i)(13), Feb. 10, 1996, 110 Stat. 656, 677. |
Editorial Notes
Amendments
2018—Subsec. (a)(1). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title)" for "commercial items (as defined in section 103 of this title)" in introductory provisions.
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§8103. Drug-free workplace requirements for Federal grant recipients
(a)
(1)
(A) publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violations of the prohibition;
(B) establishing a drug-free awareness program to inform employees about—
(i) the dangers of drug abuse in the workplace;
(ii) the grantee's policy of maintaining a drug-free workplace;
(iii) available drug counseling, rehabilitation, and employee assistance programs; and
(iv) the penalties that may be imposed on employees for drug abuse violations;
(C) making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by subparagraph (A);
(D) notifying the employee in the statement required by subparagraph (A) that as a condition of employment in the grant the employee will—
(i) abide by the terms of the statement; and
(ii) notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction;
(E) notifying the granting agency within 10 days after receiving notice under subparagraph (D)(ii) from an employee or otherwise receiving actual notice of a conviction;
(F) imposing a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted, as required by section 8104 of this title; and
(G) making a good faith effort to continue to maintain a drug-free workplace through implementation of subparagraphs (A) to (F).
(2)
(b)
(1)
(A) the grantee is violating, or has violated, the requirements of subparagraph (A), (B), (C), (D), (E), (F), or (G) of subsection (a)(1); or
(B) the number of employees of the grantee who have been convicted of violations of criminal drug statutes for violations occurring in the workplace indicates that the grantee has failed to make a good faith effort to provide a drug-free workplace as required by subsection (a)(1).
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3828.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8103 | 41:702. | Pub. L. 100–690, title V, §5153, Nov. 18, 1988, 102 Stat. 4306; Pub. L. 105–85, div. A, title VIII, §809, Nov. 18, 1997, 111 Stat. 1838. |
§8104. Employee sanctions and remedies
Within 30 days after receiving notice from an employee of a conviction pursuant to section 8102(a)(1)(D)(ii) or 8103(a)(1)(D)(ii) of this title, a contractor or grantee shall—
(1) take appropriate personnel action against the employee, up to and including termination; or
(2) require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for those purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3830.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8104 | 41:703. | Pub. L. 100–690, title V, §5154, Nov. 18, 1988, 102 Stat. 4307. |
§8105. Waiver
(a)
(1) in the case of a contract, the head of the agency determines under section 8102(b)(1) of this title, after a final determination is issued under section 8102(b)(1), that suspension of payments, termination of the contract, suspension or debarment of the contractor, or refusal to permit a person to be treated as a responsible source for a contract would severely disrupt the operation of the agency to the detriment of the Federal Government or the general public; or
(2) in the case of a grant, the head of the agency determines that suspension of payments, termination of the grant, or suspension or debarment of the grantee would not be in the public interest.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3830.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8105 | 41:704. | Pub. L. 100–690, title V, §5155, Nov. 18, 1988, 102 Stat. 4307. |
§8106. Regulations
Government-wide regulations governing actions under this chapter shall be issued pursuant to division B of subtitle I of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3830.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8106 | 41:705. | Pub. L. 100–690, title V, §5156, Nov. 18, 1988, 102 Stat. 4308. |
The words "Not later than 90 days after November 18, 1988, the" are omitted as obsolete.
CHAPTER 83—BUY AMERICAN
§8301. Definitions
In this chapter:
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3830; Pub. L. 117–58, div. G, title IX, §70922(d), Nov. 15, 2021, 135 Stat. 1304.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8301 | 41:10c. | Mar. 3, 1933, ch. 212, title III, §1, 47 Stat. 1520; Pub. L. 86–70, §43, June 25, 1959, 73 Stat. 151; Pub. L. 86–624, §28, July 12, 1960, 74 Stat. 419; Pub. L. 100–418, title VII, §7005(a), Aug. 23, 1988, 102 Stat. 1552. |
In paragraph (1), the words "the Philippine Islands" are omitted because of Proclamation No. 2695 (22 U.S.C. 1394 note). The words "the Canal Zone" are omitted because of the Panama Canal Treaty of 1977.
In paragraph (2), the words "when used in a geographical sense" are omitted as unnecessary.
Editorial Notes
Amendments
2021—Par. (3). Pub. L. 117–58 added par. (3).
Statutory Notes and Related Subsidiaries
Build America, Buy America
Pub. L. 117–58, div. G, title IX, Nov. 15, 2021, 135 Stat. 1294, as amended by Pub. L. 117–167, div. B, title II, §10254, Aug. 9, 2022, 136 Stat. 1502, provided that:
"Subtitle A—Build America, Buy America
"SEC. 70901. SHORT TITLE.
"This subtitle may be cited as the 'Build America, Buy America Act'.
"PART I—BUY AMERICA SOURCING REQUIREMENTS
"SEC. 70911. FINDINGS.
"Congress finds that—
"(1) the United States must make significant investments to install, upgrade, or replace the public works infrastructure of the United States;
"(2) with respect to investments in the infrastructure of the United States, taxpayers expect that their public works infrastructure will be produced in the United States by American workers;
"(3) United States taxpayer dollars invested in public infrastructure should not be used to reward companies that have moved their operations, investment dollars, and jobs to foreign countries or foreign factories, particularly those that do not share or openly flout the commitments of the United States to environmental, worker, and workplace safety protections;
"(4) in procuring materials for public works projects, entities using taxpayer-financed Federal assistance should give a commonsense procurement preference for the materials and products produced by companies and workers in the United States in accordance with the high ideals embodied in the environmental, worker, workplace safety, and other regulatory requirements of the United States;
"(5) common construction materials used in public works infrastructure projects, including steel, iron, manufactured products, non-ferrous metals, plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables), glass (including optic glass), lumber, and drywall are not adequately covered by a domestic content procurement preference, thus limiting the impact of taxpayer purchases to enhance supply chains in the United States;
"(6) the benefits of domestic content procurement preferences extend beyond economics;
"(7) by incentivizing domestic manufacturing, domestic content procurement preferences reinvest tax dollars in companies and processes using the highest labor and environmental standards in the world;
"(8) strong domestic content procurement preference policies act to prevent shifts in production to countries that rely on production practices that are significantly less energy efficient and far more polluting than those in the United States;
"(9) for over 75 years, Buy America and other domestic content procurement preference laws have been part of the United States procurement policy, ensuring that the United States can build and rebuild the infrastructure of the United States with high-quality American-made materials;
"(10) before the date of enactment of this Act [Nov. 15, 2021], a domestic content procurement preference requirement may not apply, may apply only to a narrow scope of products and materials, or may be limited by waiver with respect to many infrastructure programs, which necessitates a review of such programs, including programs for roads, highways, and bridges, public transportation, dams, ports, harbors, and other maritime facilities, intercity passenger and freight railroads, freight and intermodal facilities, airports, water systems, including drinking water and wastewater systems, electrical transmission facilities and systems, utilities, broadband infrastructure, and buildings and real property;
"(11) Buy America laws create demand for domestically produced goods, helping to sustain and grow domestic manufacturing and the millions of jobs domestic manufacturing supports throughout product supply chains;
"(12) as of the date of enactment of this Act, domestic content procurement preference policies apply to all Federal Government procurement and to various Federal-aid infrastructure programs;
"(13) a robust domestic manufacturing sector is a vital component of the national security of the United States;
"(14) as more manufacturing operations of the United States have moved offshore, the strength and readiness of the defense industrial base of the United States has been diminished; and
"(15) domestic content procurement preference laws—
"(A) are fully consistent with the international obligations of the United States; and
"(B) together with the government procurements to which the laws apply, are important levers for ensuring that United States manufacturers can access the government procurement markets of the trading partners of the United States.
"SEC. 70912. DEFINITIONS.
"In this part:
"(1)
"(2)
"(A) all iron and steel used in the project are produced in the United States;
"(B) the manufactured products used in the project are produced in the United States; or
"(C) the construction materials used in the project are produced in the United States.
"(3)
"(4)
"(A)
"(B)
"(5)
"(A) roads, highways, and bridges;
"(B) public transportation;
"(C) dams, ports, harbors, and other maritime facilities;
"(D) intercity passenger and freight railroads;
"(E) freight and intermodal facilities;
"(F) airports;
"(G) water systems, including drinking water and wastewater systems;
"(H) electrical transmission facilities and systems;
"(I) utilities;
"(J) broadband infrastructure; and
"(K) buildings and real property.
"(6)
"(A) in the case of iron or steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States;
"(B) in the case of manufactured products, that—
"(i) the manufactured product was manufactured in the United States; and
"(ii) the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and
"(C) in the case of construction materials, that all manufacturing processes for the construction material occurred in the United States.
"(7)
"SEC. 70913. IDENTIFICATION OF DEFICIENT PROGRAMS.
"(a)
"(1) submit to the Office of Management and Budget and to Congress, including a separate notice to each appropriate congressional committee, a report that identifies each Federal financial assistance program for infrastructure administered by the Federal agency; and
"(2) publish in the Federal Register the report under paragraph (1).
"(b)
"(1) identify all domestic content procurement preferences applicable to the Federal financial assistance;
"(2) assess the applicability of the domestic content procurement preference requirements, including—
"(A) section 313 of title 23, United States Code;
"(B) section 5323(j) of title 49, United States Code;
"(C) section 22905(a) of title 49, United States Code;
"(D) section 50101 of title 49, United States Code;
"(E) section 603 [sic; probably should be "section 608"] of the Federal Water Pollution Control Act (33 U.S.C. 1388);
"(F) section 1452(a)(4) of the Safe Drinking Water Act (42 U.S.C. 300j–12(a)(4));
"(G) section 5035 of the Water Infrastructure Finance and Innovation Act of 2014 (33 U.S.C. 3914);
"(H) any domestic content procurement preference included in an appropriations Act; and
"(I) any other domestic content procurement preference in Federal law (including regulations);
"(3) provide details on any applicable domestic content procurement preference requirement, including the purpose, scope, applicability, and any exceptions and waivers issued under the requirement; and
"(4) include a description of the type of infrastructure projects that receive funding under the program, including information relating to—
"(A) the number of entities that are participating in the program;
"(B) the amount of Federal funds that are made available for the program for each fiscal year; and
"(C) any other information the head of the Federal agency determines to be relevant.
"(c)
"(1) does not apply in a manner consistent with section 70914; or
"(2) is subject to a waiver of general applicability not limited to the use of specific products for use in a specific project.
"SEC. 70914. APPLICATION OF BUY AMERICA PREFERENCE.
"(a)
"(b)
"(1) applying the domestic content procurement preference would be inconsistent with the public interest;
"(2) types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or
"(3) the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent.
"(c)
"(1) make publicly available in an easily accessible location on a website designated by the Office of Management and Budget and on the website of the Federal agency a detailed written explanation for the proposed determination to issue the waiver; and
"(2) provide a period of not less than 15 days for public comment on the proposed waiver.
"(d)
"(1)
"(2)
"(A) publish in the Federal Register a notice that—
"(i) describes the justification for a general applicability waiver; and
"(ii) requests public comments for a period of not less than 30 days on the continued need for a general applicability waiver; and
"(B) publish in the Federal Register a determination on whether to continue or discontinue the general applicability waiver, taking into account the comments received in response to the notice published under subparagraph (A).
"(3)
"(e)
"SEC. 70915. OMB GUIDANCE AND STANDARDS.
"(a)
"(1) issue guidance to the head of each Federal agency—
"(A) to assist in identifying deficient programs under section 70913(c); and
"(B) to assist in applying new domestic content procurement preferences under section 70914; and
"(2) if necessary, amend subtitle A of title 2, Code of Federal Regulations (or successor regulations), to ensure that domestic content procurement preference requirements required by this part or other Federal law are imposed through the terms and conditions of awards of Federal financial assistance.
"(b)
"(1)
"(2)
"(A) ensure that the standards require that each manufacturing process required for the manufacture of the construction material and the inputs of the construction material occurs in the United States; and
"(B) take into consideration and seek to maximize the direct and indirect jobs benefited or created in the production of the construction material.
"SEC. 70916. TECHNICAL ASSISTANCE PARTNERSHIP AND CONSULTATION SUPPORTING DEPARTMENT OF TRANSPORTATION BUY AMERICA REQUIREMENTS.
"(a)
"(1)
"(A) section 313 of title 23, United States Code;
"(B) section 5323(j) of title 49, United States Code;
"(C) section 22905(a) of title 49, United States Code;
"(D) section 50101 of title 49, United States Code; and
"(E) any other domestic content procurement preference for an infrastructure project under the jurisdiction of the Secretary.
"(2)
"(b)
"(1) to ensure the development of a domestic supply base to support intermodal transportation in the United States, such as intercity high speed rail transportation, public transportation systems, highway construction or reconstruction, airport improvement projects, and other infrastructure projects under the jurisdiction of the Secretary;
"(2) to ensure compliance with Buy America laws that apply to a project that receives assistance from the Federal Highway Administration, the Federal Transit Administration, the Federal Railroad Administration, the Federal Aviation Administration, or another office or modal administration of the Secretary of Transportation;
"(3) to encourage technologies developed with the support of and resources from the Secretary to be transitioned into commercial market and applications; and
"(4) to establish procedures for consultation under subsection (c).
"(c)
"(d)
"(1) a detailed description of the consultation procedures developed under subsection (b)(4);
"(2) a detailed description of each waiver requested under a Buy America law in the preceding year that was subject to consultation under subsection (c), and the results of the consultation;
"(3) a detailed description of each waiver granted under a Buy America law in the preceding year, including the type of waiver and the reasoning for granting the waiver; and
"(4) an update on challenges and gaps in the domestic supply base identified in carrying out subsection (b)(1), including a list of actions and policy changes the Secretary recommends be taken to address those challenges and gaps.
"SEC. 70917. APPLICATION.
"(a)
"(b)
"(c)
"(1) the term 'construction materials' shall not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives; and
"(2) the standards developed under section 70915(b)(1) shall not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives as inputs of the construction material.
"PART II—MAKE IT IN AMERICA
"SEC. 70921. REGULATIONS RELATING TO BUY AMERICAN ACT.
"(a)
"(1) Guidelines for Federal agencies to determine, for the purposes of applying sections 8302(a) and 8303(b)(3) of title 41, United States Code, the circumstances under which the acquisition of articles, materials, or supplies mined, produced, or manufactured in the United States is inconsistent with the public interest.
"(2) Guidelines to ensure Federal agencies base determinations of non-availability on appropriate considerations, including anticipated project delays and lack of substitutable articles, materials, and supplies mined, produced, or manufactured in the United States, when making determinations of non-availability under section 8302(a)(1) of title 41, United States Code.
"(3)(A) Uniform procedures for each Federal agency to make publicly available, in an easily identifiable location on the website of the agency, and within the following time periods, the following information:
"(i) A written description of the circumstances in which the head of the agency may waive the requirements of the Buy American Act.
"(ii) Each waiver made by the head of the agency within 30 days after making such waiver, including a justification with sufficient detail to explain the basis for the waiver.
"(B) The procedures established under this paragraph shall ensure that the head of an agency, in consultation with the head of the Made in America Office established under section 70923(a), may limit the publication of classified information, trade secrets, or other information that could damage the United States.
"(4) Guidelines for Federal agencies to ensure that a project is not disaggregated for purposes of avoiding the applicability of the requirements under the Buy American Act.
"(5) An increase to the price preferences for domestic end products and domestic construction materials.
"(6) Amending the definitions of 'domestic end product' and 'domestic construction material' to ensure that iron and steel products are, to the greatest extent possible, made with domestic components.
"(b)
"(1)
"(A)
"(i) result in a decrease in employment in the United States, including employment among entities that manufacture the articles, materials, or supplies; or
"(ii) result in awarding a contract that would decrease domestic employment.
"(B)
"(2)
"(A)
"(B)
"(C)
"(c)
"(d)
"SEC. 70922. AMENDMENTS RELATING TO BUY AMERICAN ACT.
"(a)
"(b)
"(c)
"(d)
"(e)
"(f)
"SEC. 70923. MADE IN AMERICA OFFICE.
"(a)
"(b)
"(1) Maximize and enforce compliance with domestic preference statutes.
"(2) Develop and implement procedures to review waiver requests or inapplicability requests related to domestic preference statutes.
"(3) Prepare the reports required under subsections (c) and (e).
"(4) Ensure that Federal contracting personnel, financial assistance personnel, and non-Federal recipients are regularly trained on obligations under the Buy American Act [this chapter] and other agency-specific domestic preference statutes.
"(5) Conduct the review of reciprocal defense agreements required under subsection (d).
"(6) Ensure that Federal agencies, Federal financial assistance recipients, and the Hollings Manufacturing Extension Partnership partner with each other to promote compliance with domestic preference statutes.
"(7) Support executive branch efforts to develop and sustain a domestic supply base to meet Federal procurement requirements.
"(c)
"(1) A summary of total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured—
"(A) inside the United States;
"(B) outside the United States; and
"(C) outside the United States—
"(i) under each category of waiver under the Buy American Act;
"(ii) under each category of exception under such chapter; and
"(iii) for each country that mined, produced, or manufactured such articles, materials, and supplies.
"(2) For each fiscal year covered by the report—
"(A) the dollar value of any articles, materials, or supplies that were mined, produced, or manufactured outside the United States, in the aggregate and by country;
"(B) an itemized list of all waivers made under the Buy American Act with respect to articles, materials, or supplies, where available, and the country where such articles, materials, or supplies were mined, produced, or manufactured;
"(C) if any articles, materials, or supplies were acquired from entities that mine, produce, or manufacture such articles, materials, or supplies outside the United States due to an exception (that is not the micro-purchase threshold exception described under section 8302(a)(2)(C) of title 41, United States Code), the specific exception that was used to purchase such articles, materials, or supplies; and
"(D) if any articles, materials, or supplies were acquired from entities that mine, produce, or manufacture such articles, materials, or supplies outside the United States pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304 of title 41, United States Code), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation, a citation to such memorandum of understanding, trade agreement, or designation.
"(3) A description of the methods used by each Federal agency to calculate the percentage domestic content of articles, materials, and supplies mined, produced, or manufactured in the United States.
"(d)
"(1)
"(2)
"(e)
"(f)
"(1) the Buy American Act;
"(2) a Buy America law (as that term is defined in section 70916(a));
"(3) the Berry Amendment [10 U.S.C. 4862];
"(4) section 604 of the American Recovery and Reinvestment Act of 2009 (6 U.S.C. 453b) (commonly referred to as the 'Kissell amendment');
"(5) section 4863 of title 10 (commonly referred to as the 'specialty metals clause');
"(6) laws requiring domestic preference for maritime transport, including the Merchant Marine Act, 1920 (Public Law 66–261), commonly known as the 'Jones Act' [act June 5, 1920, ch. 250, see Tables for classification and Disposition Table preceding section 101 of Title 46, Shipping]; and
"(7) any other law, regulation, rule, or executive order relating to Federal financial assistance awards or Federal procurement, that requires, or provides a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, construction material, and manufactured goods offered in the United States.
"SEC. 70924. HOLLINGS MANUFACTURING EXTENSION PARTNERSHIP ACTIVITIES.
"(a)
"(b)
"SEC. 70925. UNITED STATES OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS.
"This part, and the amendments made by this part, shall be applied in a manner consistent with United States obligations under international agreements.
"SEC. 70926. DEFINITIONS.
"In this part:
"(1)
"(2)
"(3)
"(4)
"(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Commerce, Science, and Transportation, the Committee on Environment and Public Works, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Armed Services of the Senate; and
"(B) the Committee on Oversight and Reform [now Committee on Oversight and Accountability], the Committee on Armed Services, and the Committee on Transportation and Infrastructure of the House of Representatives.
"(5)
"(A) A determination by the head of the Federal agency concerned that the acquisition is inconsistent with the public interest.
"(B) A determination by the head of the Federal agency concerned that the cost of the acquisition is unreasonable.
"(C) A determination by the head of the Federal agency concerned that the article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality.
"SEC. 70927. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES.
"(a)
"(b)
"(c)
"Subtitle B—BuyAmerican.gov
"SEC. 70931. SHORT TITLE.
"This subtitle may be cited as the 'BuyAmerican.gov Act of 2021'.
"SEC. 70932. DEFINITIONS.
"In this subtitle:
"(1)
"(A) chapter 83 of title 41, United States Code (commonly referred to as the 'Buy American Act');
"(B) section 5323(j) of title 49, United States Code;
"(C) section 313 of title 23, United States Code;
"(D) section 50101 of title 49, United States Code;
"(E) section 24405 of title 49, United States Code;
"(F) section 608 of the Federal Water Pollution Control Act (33 U.S.C. 1388);
"(G) section 1452(a)(4) of the Safe Drinking Water Act (42 U.S.C. 300j–12(a)(4));
"(H) section 5035 of the Water Resources Reform and Development Act of 2014 (33 U.S.C. 3914);
"(I) section 4862 of title 10, United States Code (commonly referred to as the 'Berry Amendment'); and
"(J) section 4863 of title 10, United States Code.
"(2)
"(3)
"SEC. 70933. SENSE OF CONGRESS ON BUYING AMERICAN.
"It is the sense of Congress that—
"(1) every executive agency should maximize, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States and contracts for outsourced government service contracts to be performed by United States nationals;
"(2) every executive agency should scrupulously monitor, enforce, and comply with Buy American laws, to the extent they apply, and minimize the use of waivers; and
"(3) every executive agency should use available data to routinely audit its compliance with Buy American laws.
"SEC. 70934. ASSESSMENT OF IMPACT OF FREE TRADE AGREEMENTS.
"Not later than 150 days after the date of the enactment of this Act [Nov. 15, 2021], the Secretary of Commerce, the United States Trade Representative, and the Director of the Office of Management and Budget shall assess the impacts in a publicly available report of all United States free trade agreements, the World Trade Organization Agreement on Government Procurement, and Federal permitting processes on the operation of Buy American laws, including their impacts on the implementation of domestic procurement preferences.
"SEC. 70935. JUDICIOUS USE OF WAIVERS.
"(a)
"(b)
"SEC. 70936. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE.
"(a)
"(b)
"SEC. 70937. WAIVER TRANSPARENCY AND STREAMLINING FOR CONTRACTS.
"(a)
"(b)
"(1)
"(2)
"(c)
"(1)
"(A) information about the waiver was not made available on the website under section 70936; or
"(B) no opportunity for public comment concerning the request was granted.
"(2)
"(A) a detailed justification for the use of goods, products, or materials mined, produced, or manufactured outside the United States;
"(B) for requests citing unreasonable cost as the statutory basis of the waiver, a comparison of the cost of the domestic product to the cost of the foreign product or a comparison of the overall cost of the project with domestic products to the overall cost of the project with foreign-origin products or services, pursuant to the requirements of the applicable Buy American law, except that publicly available cost comparison data may be provided in lieu of proprietary pricing information;
"(C) for requests citing the public interest as the statutory basis for the waiver, a detailed written statement, which shall include all appropriate factors, such as potential obligations under international agreements, justifying why the requested waiver is in the public interest; and
"(D) a certification that the procurement official or assistance recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor.
"(d)
"(1)
"(2)
"SEC. 70938. COMPTROLLER GENERAL REPORT.
"Not later than two years after the date of the enactment of this Act [Nov. 15, 2021], the Comptroller General of the United States shall submit to Congress a report describing the implementation of this subtitle, including recommendations for any legislation to improve the collection and reporting of information regarding waivers of and exceptions to Buy American laws.
"SEC. 70939. RULES OF CONSTRUCTION.
"(a)
"(b)
"SEC. 70940. CONSISTENCY WITH INTERNATIONAL AGREEMENTS.
"This subtitle shall be applied in a manner consistent with United States obligations under international agreements.
"SEC. 70941. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES.
"(a)
"(1) in subparagraph (I), by striking 'section 2533a' and inserting 'section 4862'; and
"(2) in subparagraph (J), by striking 'section 2533b' and inserting 'section 4863'.
"(b)
"Subtitle C—Make PPE in America
"SEC. 70951. SHORT TITLE.
"This subtitle may be cited as the 'Make PPE in America Act'.
"SEC. 70952. FINDINGS.
"Congress makes the following findings:
"(1) The COVID–19 pandemic has exposed the vulnerability of the United States supply chains for, and lack of domestic production of, personal protective equipment (PPE).
"(2) The United States requires a robust, secure, and wholly domestic PPE supply chain to safeguard public health and national security.
"(3) Issuing a strategy that provides the government's anticipated needs over the next three years will enable suppliers to assess what changes, if any, are needed in their manufacturing capacity to meet expected demands.
"(4) In order to foster a domestic PPE supply chain, United States industry needs a strong and consistent demand signal from the Federal Government providing the necessary certainty to expand production capacity investment in the United States.
"(5) In order to effectively incentivize investment in the United States and the re-shoring of manufacturing, long-term contracts must be no shorter than three years in duration.
"(6) To accomplish this aim, the United States should seek to ensure compliance with its international obligations, such as its commitments under the World Trade Organization's Agreement on Government Procurement and its free trade agreements, including by invoking any relevant exceptions to those agreements, especially those related to national security and public health.
"(7) The United States needs a long-term investment strategy for the domestic production of PPE items critical to the United States national response to a public health crisis, including the COVID–19 pandemic.
"SEC. 70953. REQUIREMENT OF LONG-TERM CONTRACTS FOR DOMESTICALLY MANUFACTURED PERSONAL PROTECTIVE EQUIPMENT.
"(a)
"(1)
"(A) the Committee on Homeland Security and Governmental Affairs, the Committee on Health, Education, Labor, and Pensions, the Committee on Finance, and the Committee on Veterans' Affairs of the Senate; and
"(B) the Committee on Homeland Security, the Committee on Oversight and Reform [now Committee on Oversight and Accountability], the Committee on Energy and Commerce, the Committee on Ways and Means, and the Committee on Veterans' Affairs of the House of Representatives.
"(2)
"(3)
"(4)
"(b)
"(1) be issued for a duration of at least 2 years, plus all option periods necessary, to incentivize investment in the production of personal protective equipment and the materials and components thereof in the United States; and
"(2) be for personal protective equipment, including the materials and components thereof, that is grown, reprocessed, reused, or produced in the United States.
"(c)
"(1) maximizes sources for personal protective equipment that is assembled outside the United States containing only materials and components that are grown, reprocessed, reused, or produced in the United States; and
"(2) certifies every 120 days that it is necessary to procure personal protective equipment under alternative procedures to respond to the immediate needs of a public health emergency.
"(d)
"(1)
"(A) that is, or that includes, a material listed in section 25.104 of the Federal Acquisition Regulation as one for which a non-availability determination has been made; or
"(B) as to which the covered Secretary determines that a sufficient quantity of a satisfactory quality that is grown, reprocessed, reused, or produced in the United States cannot be procured as, and when, needed at United States market prices.
"(2)
"(e)
"(1)
"(2)
"(A) The United States long-term domestic procurement strategy for PPE produced in the United States, including strategies to incentivize investment in and maintain United States supply chains for all PPE sufficient to meet the needs of the United States during a public health emergency.
"(B) An estimate of long-term demand quantities for all PPE items procured by the United States.
"(C) Recommendations for congressional action required to implement the United States Government's procurement strategy.
"(D) A determination whether all notifications, amendments, and other necessary actions have been completed to bring the United States existing international obligations into conformity with the statutory requirements of this subtitle.
"(f)
"(1)
"(2)
"(A)
"(3)
"(g)
Implementation of Buy American Act With Respect to Certain Water Resource Projects
Pub. L. 100–371, title V, §508, July 19, 1988, 102 Stat. 875, provided that:
"(a)
"(b)
Executive Documents
Executive Order No. 13788
Ex. Ord. No. 13788, Apr. 18, 2017, 82 F.R. 18837, as amended by Ex. Ord. No. 13858, §5, Jan. 31, 2019, 84 F.R. 2040, which related to Buy American and entry into the United States of workers from abroad, was revoked by Ex. Ord. No. 14005, §14(a), Jan. 25, 2021, 86 F.R. 7478, set out below.
Ex. Ord. No. 13858. Strengthening Buy-American Preferences for Infrastructure Projects
Ex. Ord. No. 13858, Jan. 31, 2019, 84 F.R. 2039, as amended by Ex. Ord. No. 14005, §14(a), Jan. 25, 2021, 86 F.R. 7478, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen Buy-American principles in Federal financial assistance programs, it is hereby ordered as follows:
(a) "Produced in the United States" means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(b) "Federal financial assistance" shall have the meaning and shall be interpreted consistent with the definition provided by the Office of Management and Budget's Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, found at section 200.40 of title 2, Code of Federal Regulations.
(c) "Manufactured products" means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
(d) "Infrastructure project" means a project to develop public or private physical assets that are designed to provide or support services to the general public in the following sectors: surface transportation, including roadways, bridges, railroads, and transit; aviation; ports, including navigational channels; water resources projects; energy production, generation, and storage, including from fossil-fuels, renewable, nuclear, and hydroelectric sources; electricity transmission; gas, oil, and propane storage and transmission; electric, oil, natural gas, and propane distribution systems; broadband internet; pipelines; stormwater and sewer infrastructure; drinking water infrastructure; cybersecurity; and any other sector designated through a notice published in the Federal Register by the Federal Permitting Improvement Steering Council.
(e) "Covered program" means any program for which a focus of the statutory authorities under which it is administered is the award of Federal financial assistance for the alteration, construction, conversion, demolition, extension, improvement, maintenance, reconstruction, rehabilitation, or repair of an infrastructure project in the United States, except that this term shall not include:
(i) programs for which providing a domestic preference is inconsistent with law; or
(ii) programs providing Federal financial assistance that are subject to comparable domestic preferences.
(f) "Domestic Preference" means a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States, including iron and aluminum as well as steel, cement, and other manufactured products.
(b) The head of each agency administering a covered program shall include in the report required by section 4 of this order a detailed explanation of the strategy, plan, or program developed to satisfy the requirement of subsection (a) of this section.
(i) the authority granted by law to an executive department or agency, or the head thereof;
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or
(iii) existing rights or obligations under international agreements.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Ex. Ord. No. 13881. Maximizing Use of American-Made Goods, Products, and Materials
Ex. Ord. No. 13881, July 15, 2019, 84 F.R. 34257, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and to promote the principles underlying the Buy American Act of 1933 (41 U.S.C. 8301–8305), it is hereby ordered as follows:
(b) In Executive Order 10582 of December 17, 1954 (Prescribing Uniform Procedures for Certain Determinations Under the Buy-American Act) [41 U.S.C. 8303 note], President Eisenhower established that materials shall be, for purposes of the Buy American Act, considered of foreign origin if the cost of the foreign products used in such materials constitutes 50 percent or more of the cost of all the products used in such materials. He also established that, in determining whether the bid or offered price of materials of domestic origin is unreasonable or inconsistent with the public interest, the executive agencies shall either (1) add 6 percent to the total bid or offered price of materials of foreign origin, or (2) add 10 percent to the total bid or offered price of materials of foreign origin less certain specified costs as follows. Where the foreign bid or offer is less than $25,000, applicable duty is excluded from the calculation. Where the foreign bid or offer is more than $25,000, both applicable duty, and all costs incurred after arrival in the United States, are excluded from the calculation.
(c) The policies described in section 1(b) of this order were adopted by the Federal Acquisition Regulatory Council (FAR Council) in the Federal Acquisition Regulation (FAR), title 48, Code of Federal Regulations. The FAR should be reviewed and revised, as appropriate, to most effectively carry out the goals of the Buy American Act and my Administration's policy of enforcing the Buy American Act to its maximum lawful extent. I therefore direct the members of the FAR Council to consider measures that may better effectuate this policy.
(i) an amendment to the applicable provisions in the FAR that would provide that materials shall be considered to be of foreign origin if:
(A) for iron and steel end products, the cost of foreign iron and steel used in such iron and steel end products constitutes 5 percent or more of the cost of all the products used in such iron and steel end products; or
(B) for all other end products, the cost of the foreign products used in such end products constitutes 45 percent or more of the cost of all the products used in such end products; and
(ii) an amendment to the applicable provisions in the FAR that would provide that the executive agency concerned shall in each instance conduct the reasonableness and public interest determination referred to in sections 8302 and 8303 of title 41, United States Code, on the basis of the following-described differential formula, subject to the terms thereof: the sum determined by computing 20 percent (for other than small businesses), or 30 percent (for small businesses), of the offer or offered price of materials of foreign origin.
(b) The FAR Council shall consider and evaluate public comments on any regulations proposed pursuant to section 2(a) of this order and shall promptly issue a final rule, if appropriate and consistent with applicable law and the national security interests of the United States. The head of each executive agency shall issue such regulations as may be necessary to ensure that agency procurement practices conform to the provisions of any final rule issued pursuant to this order.
(i) the authority granted by law to an executive department or agency, or the head thereof, including, for example, the authority to utilize non-availability and public interest exceptions as delineated in section 8303 of title 41, United States Code, and 48 CFR 25.103; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
[Ex. Ord. No. 13881, set out above, superseded to the extent it is inconsistent with Ex. Ord. No. 14005, see section 14(b) of Ex. Ord. No. 14005, Jan. 25, 2021, 86 F.R. 7478, set out below.]
Ex. Ord. No. 14005. Ensuring the Future Is Made in All of America by All of America's Workers
Ex. Ord. No. 14005, Jan. 25, 2021, 86 F.R. 7475, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
(b) "Made in America Laws" means all statutes, regulations, rules, and Executive Orders relating to Federal financial assistance awards or Federal procurement, including those that refer to "Buy America" or "Buy American," that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods offered in the United States. Made in America Laws include laws requiring domestic preference for maritime transport, including the Merchant Marine Act of 1920 (Public Law 66–261) [41 Stat. 988], also known as the Jones Act.
(c) "Waiver" means an exception from or waiver of Made in America Laws, or the procedures and conditions used by an agency in granting an exception from or waiver of Made in America Laws.
(b) The head of each agency shall, as soon as practicable and as appropriate and consistent with applicable law, including the Administrative Procedure Act, consider proposing any additional agency actions necessary to enforce the policy set forth in section 1 of this order.
(b) Before an agency grants a waiver, and unless the OMB Director provides otherwise, the agency (granting agency) shall provide the Made in America Director with a description of its proposed waiver and a detailed justification for the use of goods, products, or materials that have not been mined, produced, or manufactured in the United States.
(i) Within 45 days of the date of the appointment of the Made in America Director, and as appropriate thereafter, the Director of OMB, through the Made in America Director, shall:
(1) publish a list of the information that granting agencies shall include when submitting such descriptions of proposed waivers and justifications to the Made in America Director; and
(2) publish a deadline, not to exceed 15 business days, by which the Director of OMB, through the Made in America Director, either will notify the head of the agency that the Director of OMB, through the Made in America Director, has waived each review described in subsection (c) of this section or will notify the head of the agency in writing of the result of the review.
(ii) To the extent permitted by law and consistent with national security and executive branch confidentiality interests, descriptions of proposed waivers and justifications submitted to the Made in America Director by granting agencies shall be made publicly available on the website established pursuant to section 6 of this order.
(c) The Director of OMB, through the Made in America Director, shall review each proposed waiver submitted pursuant to subsection (b) of this section, except where such review has been waived as described in subsection (b)(i)(2) of this section.
(i) If the Director of OMB, through the Made in America Director, determines that issuing the proposed waiver would be consistent with applicable law and the policy set forth in section 1 of this order, the Director of OMB, through the Made in America Director, shall notify the granting agency of that determination in writing.
(ii) If the Director of OMB, through the Made in America Director, determines that issuing the proposed waiver would not be consistent with applicable law or the policy set forth in section 1 of this order, the Director of OMB, through the Made in America Director, shall notify the granting agency of the determination and shall return the proposed waiver to the head of the agency for further consideration, providing the granting agency with a written explanation for the determination.
(1) If the head of the agency disagrees with some or all of the bases for the determination and return, the head of the agency shall so inform the Made in America Director in writing.
(2) To the extent permitted by law, disagreements or conflicts between the Made in America Director and the head of any agency shall be resolved in accordance with procedures that parallel those set forth in section 7 of Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review) [5 U.S.C. 601 note], with respect to the Director of the Office of Information and Regulatory Affairs within OMB.
(d) When a granting agency is obligated by law to act more quickly than the review procedures established in this section allow, the head of the agency shall notify the Made in America Director as soon as possible and, to the extent practicable, comply with the requirements set forth in this section. Nothing in this section shall be construed as displacing agencies' authorities or responsibilities under law.
(b) The Director of OMB, through the Made in America Director, shall promptly report to the Administrator of General Services all proposed waivers, along with the associated descriptions and justifications discussed in section 4(b) of this order, and whether those waivers have been granted. Not later than 5 days after receiving this information, the Administrator of General Services shall, to the extent permitted by law and consistent with national security and executive branch confidentiality interests, make this information available to the public by posting it on the website established under this section.
(i) replace the "component test" in Part 25 of the FAR that is used to identify domestic end products and domestic construction materials with a test under which domestic content is measured by the value that is added to the product through U.S.-based production or U.S. job-supporting economic activity;
(ii) increase the numerical threshold for domestic content requirements for end products and construction materials; and
(iii) increase the price preferences for domestic end products and domestic construction materials.
(b) The FAR Council shall consider and evaluate public comments on any regulations proposed pursuant to subsection (a) of this section and shall promptly issue a final rule, if appropriate and consistent with applicable law and the national security interests of the United States.
(a) the agency's implementation of, and compliance with, Made in America Laws;
(b) the agency's ongoing use of any longstanding or nationwide waivers of any Made in America Laws, with a written description of the consistency of such waivers with the policy set forth in section 1 of this order; and
(c) recommendations for how to further effectuate the policy set forth in section 1 of this order.
(a) the agency's ongoing implementation of, and compliance with, Made in America Laws;
(b) the agency's analysis of goods, products, materials, and services not subject to Made in America Laws or where requirements of the Made in America Laws have been waived;
(c) the agency's analysis of spending as a result of waivers issued pursuant to [section 301 of] the Trade Agreements Act of 1979, as amended, 19 U.S.C. 2511, separated by country of origin; and
(d) recommendations for how to further effectuate the policy set forth in section 1 of this order.
(b) Executive Order 10582 of December 17, 1954 (Prescribing Uniform Procedures for Certain Determinations Under the Buy-America Act) [41 U.S.C. 8303 note], and Executive Order 13881 of July 15, 2019 (Maximizing Use of American-Made Goods, Products, and Materials) [set out above], are superseded to the extent that they are inconsistent with this order.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
Ex. Ord. No. 14104. Federal Research and Development in Support of Domestic Manufacturing and United States Jobs
Ex. Ord. No. 14104, July 28, 2023, 88 F.R. 51203, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
My Administration has prioritized support for our unique innovation ecosystem by reinvesting across sectors in research and development (R&D), demonstrations, education, and the necessary infrastructure to accelerate the transition of discoveries quickly from the lab to the marketplace.
This investment is designed to produce cutting-edge technologies that support the competitiveness, domestic manufacturing capacity, and well-being of the United States economy; United States workers; our communities; and our national security. Ensuring the commercialization of federally funded inventions by United States manufacturers—while maintaining intellectual property rights—will build on the successful legacy of the United States in spurring economic growth and enhancing United States competitiveness through R&D. It will also further our joint R&D work with partners and allies to strengthen the resilience of global critical supply chains and secure America's leadership in delivering a net-zero emissions economy by no later than 2050.
Therefore, it is the policy of my Administration that when new technologies and products are developed with support from the United States Government, they will be manufactured in the United States whenever feasible and consistent with applicable law.
(b) In implementing this order, the heads of executive departments and agencies (agencies) shall, as appropriate and consistent with applicable law, consult outside stakeholders—such as those in industry; academia, including Historically Black Colleges and Universities, Tribal Colleges and Universities, and other Minority Serving Institutions; non-governmental organizations; communities; labor unions; and State, local, Tribal, and territorial governments—in order to implement the policy identified in section 1 of this order.
(b) The Director of OSTP, working through the National Science and Technology Council (NSTC) and in coordination with the Director of the Office of Management and Budget's Made in America Office (Made in America Director) and the heads of agencies identified in subsection (a) of this section, shall seek to add "domestic manufacturing" to future interagency technology R&D roadmaps, as appropriate. The Director of OSTP shall endeavor to standardize the format of domestic manufacturing considerations in technology R&D roadmaps to ensure that industry, the research community, and agencies create the conditions for new technologies to be produced in the United States once they are commercialized.
(c) In collaboration with the Administrator of the Small Business Administration (SBA), the heads of agencies participating in the Small Business Innovation Research and Small Business Technology Transfer programs are encouraged to advance a coordinated interagency approach to innovation and research solicitations with the goals of reducing barriers to program participation, streamlining access to funding opportunities, and encouraging production of new technologies in the United States. The heads of these agencies are further encouraged to collaborate with the SBA to support small businesses transitioning technologies from intramural and extramural labs to commercial markets.
(d) The heads of agencies that have statutory Other Transaction Authority, or that can use other business arrangements authorized by the Congress, are encouraged, when appropriate, to consider using these authorities to purchase or invest in leading-edge technologies to support their production in the United States. If these agencies use these authorities to purchase or invest in the development of new technologies, the terms of these purchases and investments should ensure that the product is substantially manufactured in the United States, as appropriate and consistent with applicable law.
(e) To further support the commercialization and production in the United States of technologies developed, in part, through federally funded R&D, the heads of agencies identified in subsection (a) of this section are encouraged to establish or enhance the technology transfer and commercialization capabilities of their agencies.
(b) To incentivize domestic manufacturing through the reporting of invention disclosures and the utilization of those inventions, the heads of agencies identified in section 3(a) of this order shall require recipients of Federal R&D funding agreements to track and update the awarding agency on the location in which subject inventions are manufactured.
(c) The heads of agencies identified in section 3(a) of this order should require recipients of Federal R&D funding agreements to report annually to the awarding agency the names of licensees and manufacturing locations of the applicable subject inventions.
(d) Within 60 days of the date of this order [July 28, 2023], the Secretary of Commerce, through the Director of the National Institute of Standards and Technology (NIST) and in consultation with the Office of Management and Budget (OMB), should develop award terms and conditions regarding the reporting requirements in subsections (a) through (c) of this section to be implemented by each awarding agency identified in section 3(a) of this order. Award terms and conditions shall ensure that the reporting of the information specified in subsections (b) and (c) of this section protects business confidential information, consistent with 35 U.S.C. 202(c)(5), while providing increased visibility to taxpayers on the use of Federal R&D funding in support of domestic manufacturing and job creation.
(e) The Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, shall consider developing an action plan, including resource requirements, to transition all agencies identified in section 3(a) of this order to the iEdison reporting system to track unclassified subject inventions, patents, and related utilization reports by calendar year 2025. The Secretary of Commerce shall submit the action plan to the Director of OMB within 1 year of the date of this order.
(f) Not later than 120 days after issuance of any final regulations implementing the action plan described in subsection (e) of this section, the heads of agencies identified in section 3(a) of this order shall report to the Director of OMB and the Director of OSTP on steps their respective agencies have taken to transition all unclassified reporting to iEdison by the end of calendar year 2025. These reports may include resource needs and timelines for implementation.
(g) Within 180 days of the date of this order, the Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, should develop common invention utilization questions (utilization questions), allowing agencies to add agency-specific questions.
(i) The utilization questions should be used by all agencies by May 1, 2024, for subject inventions that a Federal R&D funding agreement recipient has elected to retain title on or after the date of this order.
(ii) The utilization questions should require information on the locations where subject inventions are produced or are used to produce a product.
(iii) The Secretary of Commerce, through the Director of NIST, and the heads of other agencies should aim to minimize the reporting burden on recipients of Federal R&D funding agreements associated with the utilization questions, in accordance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and applicable OMB guidance.
(h) Within 2 years after the date of this order and annually thereafter, the heads of agencies identified in section 3(a) of this order shall submit reports to the Made in America Director on the utilization of inventions that were developed through their previous R&D funding agreements and reported after the date of this order, including where products embodying a subject invention or produced through the use of a subject invention were manufactured.
(i) consider measures for technologies important to the United States economy and national security, including critical and emerging technologies such as energy storage, quantum information science, artificial intelligence and machine learning, semiconductors and microelectronics, and advanced manufacturing; and
(ii) consider narrowly tailoring terms related to enhanced United States manufacturing while encouraging technology transfer and commercialization, and allowing small businesses and nonprofit organizations to retain ownership of and commercialize their federally funded subject inventions.
(b) The heads of agencies identified in section 3(a) of this order shall consider whether other measures are needed to promote domestic manufacturing of subject inventions funded by their respective agencies.
(b) Each report shall include, to the extent possible, a review of this order's effectiveness in using the R&D funding agreements of the agencies identified in section 3(a) of this order to support domestic manufacturing, United States industrial competitiveness, and job creation.
(c) Each report shall include, to the extent possible, identification of any challenges to implementation of this order or to the effectiveness of this order in accomplishing the policy goals described in section 1 of this order, as well as recommendations to address such challenges.
(b) Every agency should consider developing a process by which the agency may waive the domestic manufacturing requirements for agency-funded technology or technology developed under an agency funding opportunity without a request from a recipient of a Federal R&D funding agreement. As part of its process, an agency should seek concurrence from the Made in America Director to waive the domestic manufacturing requirements, and should set forth specific factors that may support a waiver, including whether the manufacture of the technology outside the United States is in the economic or national security interest of the United States.
(c) The heads of agencies identified in section 3(a) of this order shall ensure that the waiver process for their agency is rigorous, timely, transparent, and consistent, with due regard for all applicable authorities, including Executive Order 14005 of January 25, 2021 (Ensuring the Future Is Made in All of America by All of America's Workers) [set out above], and the Bayh-Dole Act's requirement that a waiver be available when reasonable but unsuccessful efforts have been made to license to a company that could substantially manufacture in the United States, or when domestic manufacture is not commercially feasible.
(d) The Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, the NSTC Lab-to-Market Subcommittee, and the Made in America Director, shall provide guidance to agencies on the factors and considerations that should be weighed in determining whether domestic manufacturing is not commercially feasible. Guidance shall be designed to help applicants understand the factors an agency will consider when evaluating a waiver application, and should ensure that a determination of the commercial feasibility of manufacturing abroad is not based on substandard or unacceptable working conditions. Within 90 days of the date of this order, the Secretary of Commerce, through the Director of NIST, shall make the guidance available for public comment.
(e) Within 90 days of the date of this order, the Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, shall develop common waiver application questions for use by all agencies.
(i) The common waiver application questions should include as relevant criteria, as appropriate and consistent with applicable law:
(A) how the waiver will be used;
(B) why it is important that the subject invention be brought to market;
(C) any potential economic and national security impacts of manufacturing the subject invention abroad;
(D) the benefits that will accrue to domestic manufacturing and United States jobs as a result of the subject invention being brought to market;
(E) whether the applicant is proposing an exclusive or non-exclusive license; and
(F) the conditions under which the subject invention would be manufactured abroad, including unionization of workplaces, health and safety standards, labor and wage laws, and environmental impacts.
(ii) Given the need to maintain agency flexibility, the heads of agencies identified in section 3(a) of this order may add questions to the common waiver application questions, but they should do so sparingly and only as needed to accomplish the policy set forth in this order within their respective agencies' existing authorities.
(f) The heads of agencies identified in section 3(a) of this order shall adopt the common waiver application questions, to the extent consistent with applicable law.
(g) The heads of agencies identified in section 3(a) of this order should acknowledge receipt of waiver applications within 10 business days, to the extent practicable. Once an applicant submits a waiver request application, the reviewing agency should seek to finalize its decision, including negotiations with the applicant as needed, as soon as possible.
(h) Within 270 days of the date of this order, the heads of agencies identified in section 3(a) of this order shall establish agency guidelines for negotiating with waiver applicants to retain as much value or benefit to the United States as possible, as appropriate and consistent with applicable law, while considering technical, business, social, environmental, and economic realities. In assessing a waiver's value to the United States economy, the heads of agencies identified in section 3(a) of this order should consider, as appropriate and in addition to any other relevant factors, potential benefits to domestic manufacturing competitiveness, to United States job creation, and to United States economic and national security.
(i) The heads of agencies identified in section 3(a) of this order should consider limiting waivers to applicants that commit to manufacture in locations that maintain a market economy and for specific agreed-upon purposes.
(ii) The heads of agencies identified in section 3(a) of this order should expect waiver applicants to deliver alternative benefits to the United States as part of an agreement to grant the waiver. Consideration of alternative benefits may include direct or indirect investment in domestic plants and equipment, the creation of high-quality domestic jobs, or further domestic development of the subject invention.
(i) Beginning in fiscal year 2024 and on an annual basis thereafter, the heads of agencies identified in section 3(a) of this order shall provide to the Secretary of Commerce, through the Interagency Working Group for Bayh-Dole, a summary of each waiver application received, approved, and rejected. The summary shall include the terms of any approved waiver and the processing time needed to reach a decision.
(i) The Secretary of Commerce, through the Interagency Working Group for Bayh-Dole, shall publish a periodic summary of the waiver applications in aggregate that describes common reasons for waiver requests, processing times by agency, and recommended policy responses to common challenges.
(ii) Agencies shall ensure that the information submitted for publication to the Secretary of Commerce, through the Interagency Working Group for Bayh-Dole, appropriately protects business confidential and sensitive information provided by waiver applicants as part of their justification for the waiver, consistent with 35 U.S.C. 202(c)(5). However, the names of applicants seeking a waiver and a summary of the benefits the waiver recipients will provide to the United States should be made available to the public, to the extent permitted by law.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
§8302. American materials required for public use
(a)
(1)
(2)
(A) to articles, materials, or supplies for use outside the United States;
(B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304 of this title), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation; and
(C) to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title.
(b)
(1)
(2)
(c)
(1)
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3831; Pub. L. 117–58, div. G, title IX, §70922(a), (c), (e)(1), Nov. 15, 2021, 135 Stat. 1303, 1304.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8302 | 41:10a. | Mar. 3, 1933, ch. 212, title III, §2, 47 Stat. 1520; Pub. L. 100–418, title VII, §7005(b), Aug. 23, 1988, 102 Stat. 1553; Pub. L. 103–355, title IV, §4301(b), Oct. 13, 1994, 108 Stat. 3347; Pub. L. 110–28 title VIII, §8306, May 25, 2007, 121 Stat. 211. |
In subsection (a), the words "Notwithstanding any other provision of law" are omitted as unnecessary.
In subsection (b)(1), reference to fiscal years 2007 and 2008 is omitted as obsolete.
Editorial Notes
References in Text
The Build America, Buy America Act, referred to in subsec. (b)(1), is Pub. L. 117–58, div. G. title IX, subtitle A, Nov. 15, 2021, 135 Stat. 1294, which is set out in a note under section 8301 of this title. The Act was enacted in fiscal year 2022.
Amendments
2021—Subsec. (a)(1). Pub. L. 117–58, §70922(e)(1)(A), substituted "Federal agency" for "department or independent establishment" and "their acquisition to be inconsistent with the public interest, their cost to be unreasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality" for "their acquisition to be inconsistent with the public interest or their cost to be unreasonable".
Subsec. (a)(2)(B). Pub. L. 117–58, §70922(e)(1)(B), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "if articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and are not of a satisfactory quality; and".
Subsec. (b). Pub. L. 117–58, §70922(c), amended subsec. (b) generally. Prior to amendment, subsec. (b) related to submission of reports no later than 180 days after the end of each of fiscal years 2009 through 2011.
Subsec. (c). Pub. L. 117–58, §70922(a), added subsec. (c).
Statutory Notes and Related Subsidiaries
Change of Name
Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.
§8303. Contracts for public works
(a)
(1) unmanufactured articles, materials, and supplies that have been mined or produced in the United States; and
(2) manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States.
(b)
(1)
(A) to articles, materials, or supplies for use outside the United States;
(B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation; and
(C) to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title.
(2)
(3)
(c)
(1)
(2)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3832; Pub. L. 117–58, div. G, title IX, §70922(b), (e)(2), Nov. 15, 2021, 135 Stat. 1303, 1305.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8303(a) | 41:10b(a) (words before "except as provided"). | Mar. 3, 1933, ch. 212, title III, §3, 47 Stat. 1520; Pub. L. 100–418, title VII, §7005(c), Aug. 23, 1988, 102 Stat. 1553. |
| 8303(b)(1) | 41:10b(a) ("except as provided in section 10a of this title"). | |
| 8303(b)(2) | 41:10b(a) (proviso). | |
| 8303(b)(3) | 41:10d. | Oct. 29, 1949, ch. 787, title VI, §633, 63 Stat. 1024; Pub. L. 100–418, title VII, §7005(d), Aug. 23, 1988, 102 Stat. 1553. |
| 8303(c) | 41:10b(b). |
In subsection (a), before paragraph (1), the words "growing out of an appropriation heretofore made or hereafter to be made" are omitted as unnecessary.
Subsection (b)(1) is substituted for "except as provided in section 10a of this title" for clarity.
In subsection (b)(3), the words "In order to clarify the original intent of Congress, hereafter, section 10a of this title" are omitted as unnecessary.
In subsection (c), the words "in the United States or elsewhere" are omitted as unnecessary.
Editorial Notes
Amendments
2021—Subsec. (b)(1)(B). Pub. L. 117–58, §70922(e)(2)(A)(ii), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "if articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and are not of a satisfactory quality; and".
Subsec. (b)(2). Pub. L. 117–58, §70922(e)(2)(A)(i), substituted "Federal agency" for "department or independent establishment".
Subsec. (b)(3). Pub. L. 117–58, §70922(e)(2)(A)(i), (iii), in heading, substituted "Waiver authority" for "Inconsistent with public interest" and, in text, substituted "Federal agency" for "department or independent establishment" and "their acquisition to be inconsistent with the public interest, their cost to be unreasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality" for "their purchase to be inconsistent with the public interest or their cost to be unreasonable".
Subsec. (c). Pub. L. 117–58, §70922(b)(2), added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 117–58, §70922(b)(1), (e)(2)(B), redesignated subsec. (c) as (d) and substituted "Federal agency" for "department, bureau, agency, or independent establishment" in two places.
Executive Documents
Ex. Ord. No. 10582. Uniform Procedures for Determinations
Ex. Ord. No. 10582, Dec. 17, 1954, 19 F.R. 8723, as amended by Ex. Ord. No. 11051, Sept. 27, 1962, 27 F.R. 9683; Ex. Ord. No. 12148, July 20, 1979, 44 F.R. 43239; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 13881, §3, July 15, 2019, 84 F.R. 34258, provided:
(b) For the purposes of the said act of March 3, 1933 [probably means act Mar. 3, 1933, ch. 212, title III, 47 Stat. 1520, see 41 U.S.C. 8301 et seq.], and the other laws referred to in the first paragraph of the preamble of this order, the bid or offered price of materials of domestic origin shall be deemed to be unreasonable, or the purchase of such materials shall be deemed to be inconsistent with the public interest, if the bid or offered price thereof exceeds the sum of the bid or offered price of like materials of foreign origin and a differential computed as provided in subsection (c) of this section.
(c) The executive agency concerned shall in each instance determine the amount of the differential referred to in subsection (b) of this section on the basis of one of the following-described formulas, subject to the terms thereof:
(1) The sum determined by computing six per centum of the bid or offered price of materials of foreign origin.
(2) The sum determined by computing ten per centum of the bid or offered price of materials of foreign origin exclusive of applicable duty and all costs incurred after arrival in the United States: provided that when the bid or offered price of materials of foreign origin amounts to less than $25,000, the sum shall be determined by computing ten per centum of such price exclusive only of applicable duty.
(a) To reject any bid or offer for reasons of the national interest not described or referred to in this order; or
(b) To place a fair proportion of the total purchases with small business concerns in accordance with section 302(b) of the Federal Property and Administrative Services Act of 1949, as amended [former 41 U.S.C. 252(b)] [now 41 U.S.C. 3104], [former] section 2(b) of the Armed Services Procurement Act of 1947, as amended, and [former] section 202 of the Small Business Act of 1953; or
(c) To reject a bid or offer to furnish material of foreign origin in any situation in which the domestic supplier offering the lowest price for furnishing the desired materials undertakes to produce substantially all of such materials in areas of substantial unemployment, as determined by the Secretary of Labor in accordance with such appropriate regulations as he may establish and during such period as the President may determine that it is in the national interest to provide to such areas preference in the award of Government contracts: Provided, that nothing in this section shall prevent the rejection of a bid or offered price which is excessive; or
(d) To reject any bid or offer for materials of foreign origin if such rejection is necessary to protect essential national-security interests after receiving advice with respect thereto from the President or from the Director [now Administrator] of the Federal Emergency Management Agency. In providing this advice the Director [Administrator] shall be governed by the principle that exceptions under this section shall be made only upon a clear showing that the payment of a greater differential than the procedures of this section generally prescribe is justified by consideration of national security.
[Ex. Ord. No. 10582, set out above, superseded to the extent it is inconsistent with Ex. Ord. No. 14005, see section 14(b) of Ex. Ord. No. 14005, Jan. 25, 2021, 86 F.R. 7478, set out in a note under section 8301 of this title.]
[Ex. Ord. No. 10582, set out above, superseded to the extent that it is inconsistent with Ex. Ord. No. 13881, and section 2(a) and (c) of Ex. Ord. No. 10582 revoked upon issuance of final rule pursuant to section 2 of Ex. Ord. No. 13881, see section 3 of Ex. Ord. No. 13881, July 15, 2019, 84 F.R. 34258, set out in a note under section 8301 of this title.]
§8304. Waiver rescission
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3833.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8304(a) | 41:10b–2(a)(2), (b). | Pub. L. 103–160, div. A, title VIII, §849(c), (d), Nov. 30, 1993, 107 Stat. 1725. |
| 8304(b) | 41:10b–2(a)(1). |
In subsection (a), the text of 41:10b–2(b) is omitted as unnecessary.
Statutory Notes and Related Subsidiaries
Similar Provisions
Provisions similar to those in this section and section 8305 of this title were contained in the following acts:
Pub. L. 118–47, div. A, title VIII, §8032, Mar. 23, 2024, 138 Stat. 490.
Pub. L. 117–328, div. C, title VIII, §8032, Dec. 29, 2022, 136 Stat. 4593.
Pub. L. 117–103, div. C, title VIII, §8033, Mar. 15, 2022, 136 Stat. 182.
Pub. L. 116–260, div. C, title VIII, §8030, Dec. 27, 2020, 134 Stat. 1310.
Pub. L. 116–93, div. A, title VIII, §8029, Dec. 20, 2019, 133 Stat. 2342.
Pub. L. 115–245, div. A, title VIII, §8028, Sept. 28, 2018, 132 Stat. 3006.
Pub. L. 115–141, div. C, title VIII, §8028, Mar. 23, 2018, 132 Stat. 469.
Pub. L. 115–31, div. C, title VIII, §8029, May 5, 2017, 131 Stat. 253.
Pub. L. 114–113, div. C, title VIII, §8028, Dec. 18, 2015, 129 Stat. 2357.
Pub. L. 113–235, div. C, title VIII, §8028, Dec. 16, 2014, 128 Stat. 2258.
Pub. L. 113–76, div. C, title VIII, §8027, Jan. 17, 2014, 128 Stat. 110.
Pub. L. 113–6, div. C, title VIII, §8027, Mar. 26, 2013, 127 Stat. 302.
Pub. L. 112–74, div. A, title VIII, §8027, Dec. 23, 2011, 125 Stat. 811.
Pub. L. 112–10, div. A, title VIII, §8028, Apr. 15, 2011, 125 Stat. 63.
Pub. L. 111–118, div. A, title VIII, §8030, Dec. 19, 2009, 123 Stat. 3435.
Pub. L. 110–329, div. C, title VIII, §8030, Sept. 30, 2008, 122 Stat. 3627.
Pub. L. 110–116, div. A, title VIII, §8029, Nov. 13, 2007, 121 Stat. 1321.
Pub. L. 109–289, div. A, title VIII, §8027, Sept. 29, 2006, 120 Stat. 1279.
Pub. L. 109–148, div. A, title VIII, §8030, Dec. 30, 2005, 119 Stat. 2705.
Pub. L. 108–287, title VIII, §8032, Aug. 5, 2004, 118 Stat. 977.
Pub. L. 108–87, title VIII, §8033, Sept. 30, 2003, 117 Stat. 1079.
Pub. L. 107–248, title VIII, §8033, Oct. 23, 2002, 116 Stat. 1544.
Pub. L. 107–117, div. A, title VIII, §8036, Jan. 10, 2002, 115 Stat. 2255.
Pub. L. 106–259, title VIII, §8036, Aug. 9, 2000, 114 Stat. 682.
Pub. L. 106–79, title VIII, §8038, Oct. 25, 1999, 113 Stat. 1239.
Pub. L. 105–262, title VIII, §8038, Oct. 17, 1998, 112 Stat. 2305.
Pub. L. 105–56, title VIII, §8040, Oct. 8, 1997, 111 Stat. 1229.
Pub. L. 104–208, div. A, title I, §101(b) [title VIII, §8042], Sept. 30, 1996, 110 Stat. 3009–71, 3009-97.
Pub. L. 104–61, title VIII, §8051, Dec. 1, 1995, 109 Stat. 662.
Pub. L. 103–335, title VIII, §8058, Sept. 30, 1994, 108 Stat. 2631.
Pub. L. 103–139, title VIII, §8069, Nov. 11, 1993, 107 Stat. 1455.
Pub. L. 102–396, title IX, §9096, Oct. 6, 1992, 106 Stat. 1924, as amended by Pub. L. 103–355, title VII, §7206(b), Oct. 13, 1994, 108 Stat. 3382.
Pub. L. 102–190, div. A, title VIII, §833, Dec. 5, 1991, 105 Stat. 1447.
Pub. L. 102–172, title VIII, §8123, Nov. 26, 1991, 105 Stat. 1205.
Pub. L. 101–189, div. A, title VIII, §823, Nov. 29, 1989, 103 Stat. 1504.
§8305. Annual report
Not later than 60 days after the end of each fiscal year, the Secretary of Defense shall submit to Congress a report on the amount of purchases by the Department of Defense from foreign entities in that fiscal year. The report shall separately indicate the dollar value of items for which this chapter was waived pursuant to—
(1) a reciprocal defense procurement memorandum of understanding described in section 8304(a) of this title;
(2) the Trade Agreements Act of 1979 (19 U.S.C. 2501 et seq.); or
(3) an international agreement to which the United States is a party.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3833.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8305 | 41:10b–3. | Pub. L. 104–201, div. A, title VIII, §827, Sept. 23, 1996, 110 Stat. 2611; Pub. L. 105–85, div. A, title VIII, §846, Nov. 18, 1997, 111 Stat. 1845; Pub. L. 105–261, div. A, title VIII, §812, Oct. 17, 1998, 112 Stat. 2086. |
CHAPTER 85—COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED
§8501. Definitions
In this chapter:
(1)
(2)
(3)
(A) includes all work required for preparation, processing, and packing of a product, or work directly relating to the performance of a service; but
(B) does not include supervision, administration, inspection, or shipping.
(4)
(5)
(6)
(A)(i) organized under the laws of the United States or a State;
(ii) operated in the interest of severely disabled individuals who are not blind; and
(iii) of which no part of the net income of the agency inures to the benefit of a shareholder or other individual;
(B) that complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and
(C) that in the production of products and in the provision of services (whether or not the products or services are procured under this chapter) during the fiscal year employs blind or other severely disabled individuals for at least 75 percent of the hours of direct labor required for the production or provision of the products or services.
(7)
(A)(i) organized under the laws of the United States or a State;
(ii) operated in the interest of blind individuals; and
(iii) of which no part of the net income of the agency inures to the benefit of a shareholder or other individual;
(B) that complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and
(C) that in the production of products and in the provision of services (whether or not the products or services are procured under this chapter) during the fiscal year employs blind individuals for at least 75 percent of the hours of direct labor required for the production or provision of the products or services.
(8)
(9)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3833.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8501(1) | 41:48b(1). | June 25, 1938, ch. 697, §5, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 81; Pub. L. 93–358, §1(3), July 25, 1974, 88 Stat. 393; Pub. L. 94–273, §3(22), Apr. 21, 1976, 90 Stat. 377. |
| 8501(2) | 41:46(a) (words in parentheses before par. (1)). | June 25, 1938, ch. 697, §1(a) (words in parentheses before par. (1)), 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 77. |
| 8501(3) | 41:48b(5). | |
| 8501(4) | 41:48b(7). | |
| 8501(5) | 41:48b(2). | |
| 8501(6) | 41:48b(4). | |
| 8501(7) | 41:48b(3). | |
| 8501(8) | 41:48b(2). | |
| 8501(9) | 41:48b(8). |
In this chapter, the word "disabled" is substituted for "handicapped" for consistency with the name of the Committee. The word "product" is substituted for "commodity" to reflect the current usage of the items produced in the Committee's program.
In this section, the text of 41:48b(6) is omitted as unnecessary.
In paragraph (9), the words "the Northern Mariana Islands" are substituted for "the Trust Territory of the Pacific Islands" because the Trust Territory of the Pacific Islands terminated. See 48 U.S.C. note prec. 1681. However, section 502(a)(2) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (48 U.S.C. 1801 note) provided that laws in existence on the effective date of section 502 that were applicable to Guam and that were of general application to the several States would apply to the Northern Mariana Islands. The Marshall Islands, Palau, and the Federated States of Micronesia are not included because although they were part of the Trust Territory of the Pacific Islands, they are independent entities and not part of the United States.
Statutory Notes and Related Subsidiaries
Contracting With Employers of Persons With Disabilities
Pub. L. 109–364, div. A, title VIII, §856(a), (d), Oct. 17, 2006, 120 Stat. 2347, 2349, provided that:
"(a)
"(1)
"(2)
"(B) The Javits-Wagner-O'Day Act [now 41 U.S.C. 8501 et seq.] shall apply to any subcontract entered into by a Department of Defense contractor for full food services, mess attendant services, and other services supporting the operation of a military dining facility.
"(3)
"(d)
"(1) The term 'State licensing agency' means any agency designated by the Secretary of Education under section 2(a)(5) of the Randolph-Sheppard Act (20 U.S.C. 107a(a)(5)).
"(2) The term 'military dining facility' means a facility owned, operated, leased, or wholly controlled by the Department of Defense and used to provide dining services to members of the Armed Forces, including a cafeteria, military mess hall, military troop dining facility, or any similar dining facility operated for the purpose of providing meals to members of the Armed Forces."
Statement of Policy and Report Concerning the Operation and Management of Certain Military Facilities Regarding the Blind or Severely Disabled
Pub. L. 109–163, div. A, title VIII, §848(b), (c), Jan. 6, 2006, 119 Stat. 3395, provided that:
"(b)
"(c)
§8502. Committee for Purchase From People Who Are Blind or Severely Disabled
(a)
(b)
(1) One officer or employee from each of the following, nominated by the head of the department or agency:
(A) The Department of Agriculture.
(B) The Department of Defense.
(C) The Department of the Army.
(D) The Department of the Navy.
(E) The Department of the Air Force.
(F) The Department of Education.
(G) The Department of Commerce.
(H) The Department of Veterans Affairs.
(I) The Department of Justice.
(J) The Department of Labor.
(K) The General Services Administration.
(2) One member from individuals who are not officers or employees of the Federal Government and who are conversant with the problems incident to the employment of the blind.
(3) One member from individuals who are not officers or employees of the Federal Government and who are conversant with the problems incident to the employment of other severely disabled individuals.
(4) One member from individuals who are not officers or employees of the Federal Government and who represent blind individuals employed in qualified nonprofit agencies for the blind.
(5) One member from individuals who are not officers or employees of the Federal Government and who represent severely disabled individuals (other than blind individuals) employed in qualified nonprofit agencies for other severely disabled individuals.
(c)
(d)
(e)
(1)
(2)
(f)
(1)
(2)
(g)
(1)
(2)
(h)
(i)
(j)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3835.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8502(a), (b) | 41:46(a) (less words in parentheses before par. (1)). | June 25, 1938, ch. 697, §1 (less (a) (words in parentheses before par. (1))), 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 77; Pub. L. 93–358, §1(1), (2), July 25, 1974, 88 Stat. 392; Pub. L. 94–273, §8(2), Apr. 21, 1976, 90 Stat. 378; Pub. L. 102–54, §13(p), June 13, 1991, 105 Stat. 278; Pub. L. 102–569, title IX, §911(a), Oct. 29, 1992, 106 Stat. 4486; Pub. L. 103–73, title III, §301, Aug. 11, 1993, 107 Stat. 736. |
| 8502(c) | 41:46(d)(1), (2), (4). | |
| 8502(d) | 41:46(c). | |
| 8502(e)(1) | 41:46(b). | |
| 8502(e)(2) | 41:46(d)(3). | |
| 8502(f) | 41:46(e). | |
| 8502(g) | 41:46(f). | |
| 8502(h) | 41:46(g). | |
| 8502(i) | 41:46(h). | |
| 8502(j) | 41:46(i). |
In subsection (b)(1)(F), the words "Department of Education" are substituted for "Department of Health and Human Services" in 41:46(a)(1) to correct a mistake in the United States Code. In the amendment to the original provision by section 1 of Public Law 92–28 (85 Stat. 77), an officer or employee of the Department of Health, Education, and Welfare was one of the members appointed to the Committee for Purchase From People Who Are Blind or Severely Disabled, because the Department, through the Rehabilitation Services Administration, had the major governmental function in the field of vocational rehabilitation for the blind and other severely handicapped and administered related vocational rehabilitation programs for individuals with disabilities. See House Report 92–228. Under section 301(a)(4)(A) and (C) and (b)(3) of the Department of Education Organization Act (20:3441(a)(4)(A) and (C) and (b)(3)), the functions and offices of the Department and the functions of the Secretary of Health, Education, and Welfare and the Commissioner of Rehabilitation Services were transferred to the Department or Secretary of Education. Section 509 of the Act (20:3508) redesignated the Department and Secretary of Health, Education, and Welfare as the Department and Secretary of Health and Human Services, respectively, and provided that references to the Department and Secretary of Health, Education, and Welfare were deemed to be references to the Department or Secretary of Health and Human Services except to the extent a reference was to a function of the Department or Secretary of Education. The reference in 41:46(a)(1) was changed to "Department of Health and Human Services" but should have been changed to "Department of Education". Furthermore, the regulations of the Committee include the Department of Education in the list of members of the Committee. See 41 CFR 51–2.1.
In subsection (c), the text of 41:46(d)(2) and (4) is omitted as obsolete.
In subsection (f)(1), the reference to section 5376 of title 5 is substituted for the reference to grade GS–18 of the General Schedule because of section 529 [title I, §101(c)(1)] of the Treasury, Postal Service and General Government Appropriations Act, 1991 (Public Law 101–509, 104 Stat. 1442, 5 U.S.C. 5376 note). The word "actual" is omitted as unnecessary. The words "A member is entitled to travel expenses, including a per diem allowance instead of subsistence, as provided under section 5703 of title 5" are substituted for 41:46(e)(3) to eliminate unnecessary words. The reference to section 5703 of title 5 is substituted for the reference to section 5703(b) of title 5 because of the amendment to section 5703 by section 4 of the Travel Expense Amendments Act of 1975 (Public Law 94–22, 89 Stat. 85).
In subsection (g), the words "its duties and powers" are omitted as surplus.
In subsection (g)(1), the reference to chapter 33 of title 5 is substituted for "the provisions of title 5 governing appointments in the competitive service" for clarity and for consistency with other titles of the United States Code. The words "relating to classification and General Schedule pay rates" are omitted as unnecessary.
In subsection (j), the words "and to the Congress" are omitted pursuant to section 3003 of the Federal Reports Elimination and Sunset Act of 1995 (31 U.S.C. 1113 note). See, also, page 199 of House Document No. 103–7.
Senate Revision Amendment
In subsec. (f)(1), "for level IV of the Executive Schedule" substituted for "under section 5376 of title 5" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18683 (2010).
§8503. Duties and powers of the Committee
(a)
(1)
(A) Products produced by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely disabled.
(B) The services those agencies provide.
(2)
(b)
(c)
(d)
(1) may prescribe regulations regarding specifications for products and services on the procurement list, the time of their delivery, and other matters as necessary to carry out this chapter; and
(2) shall prescribe regulations providing that when the Federal Government purchases products produced and offered for sale by qualified nonprofit agencies for the blind or qualified nonprofit agencies for other severely disabled, priority shall be given to products produced and offered for sale by qualified nonprofit agencies for the blind.
(e)
(1) problems related to the employment of the blind and other severely disabled individuals; and
(2) the development and adaptation of production methods that would enable a greater utilization of the blind and other severely disabled individuals.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3836.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8503(a) | 41:47(a). | June 25, 1938, ch. 697, §2, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 79. |
| 8503(b) | 41:47(b). | |
| 8503(c) | 41:47(c). | |
| 8503(d) | 41:47(d). | |
| 8503(e) | 41:47(e). |
In subsection (a), the text of 41:47(a)(1) (last sentence) is omitted as obsolete. The words "procurement list" are substituted for "(hereafter in sections 46 to 48c of this title referred to as the 'procurement list')" to eliminate unnecessary words.
In subsection (d)(2), the text of 41:47(d)(2)(B) is omitted as obsolete.
§8504. Procurement requirements for the Federal Government
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3837.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8504 | 41:48. | June 25, 1938, ch. 697, §3, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 80. |
In subsection (a), the words "referred to in section 8503 of this title" are added for clarity because of the restatement of 41:47(a) in section 8503(a) of the revised title.
In subsection (b), the words "for procurement" are omitted as unnecessary.
§8505. Audit
For the purpose of audit and examination, the Comptroller General shall have access to the books, documents, papers, and other records of—
(1) the Committee and of each central nonprofit agency the Committee designates under section 8503(c) of this title; and
(2) qualified nonprofit agencies for the blind and qualified nonprofit agencies for other severely disabled that have sold products or services under this chapter to the extent those books, documents, papers, and other records relate to the activities of the agency in a fiscal year in which a sale was made under this chapter.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3838.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8505 | 41:48a. | June 25, 1938, ch. 697, §4, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 81. |
In this section, before paragraph (1), the words "or any of his duly authorized representatives" are omitted because of 31:711(2). In paragraph (1), the words "central nonprofit" are added for clarity.
§8506. Authorization of appropriations
Necessary amounts may be appropriated to the Committee to carry out this chapter.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3838.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8506 | 41:48c. | June 25, 1938, ch. 697, §6, 52 Stat. 1196; Pub. L. 92–28, §1, June 23, 1971, 85 Stat. 82; Pub. L. 93–76, July 30, 1973, 87 Stat. 176; Pub. L. 93–358, §1(4), July 25, 1974, 88 Stat. 393. |
The reference to the fiscal year ending June 30, 1974 is omitted as obsolete.
CHAPTER 87—KICKBACKS
§8701. Definitions
In this chapter:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(A) means a person, other than the prime contractor, that offers to furnish or furnishes supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with the prime contract; and
(B) includes a person that offers to furnish or furnishes general supplies to the prime contractor or a higher tier subcontractor.
(9)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3838.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8701 | 41:52. | Mar. 8, 1946, ch. 80, §2, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3523. |
In this section, the text of 41:52(3) is omitted because of the definition of "person" in 1:1.
In paragraph (2), the words "directly or indirectly" are omitted as unnecessary.
Senate Revision Amendment
Senate amendment 4726 (111th Cong.) added par. (3) and redesignated former pars. (3) to (8) as (4) to (9), respectively. See 156 Cong. Rec. 18683 (2010).
§8702. Prohibited conduct
A person may not—
(1) provide, attempt to provide, or offer to provide a kickback;
(2) solicit, accept, or attempt to accept a kickback; or
(3) include the amount of a kickback prohibited by paragraph (1) or (2) in the contract price—
(A) a subcontractor charges a prime contractor or a higher tier subcontractor; or
(B) a prime contractor charges the Federal Government.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3839.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8702 | 41:53. | Mar. 8, 1946, ch. 80, §3, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3524. |
In paragraph (3), before subparagraph (A), the words "directly or indirectly" are omitted as unnecessary.
§8703. Contractor responsibilities
(a)
(1) have in place and follow reasonable procedures designed to prevent and detect violations of section 8702 of this title in its own operations and direct business relationships; and
(2) cooperate fully with a Federal Government agency investigating a violation of section 8702 of this title.
(b)
(c)
(1)
(2)
(d)
(1) that is not greater than $100,000; or
(2) for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3839; Pub. L. 115–232, div. A, title VIII, §836(b)(20), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8703(a) | 41:57(a), (b). | Mar. 8, 1946, ch. 80, §7, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3525; Pub. L. 103–355, title IV, §4104(a), title VIII, §8301(c)(1), Oct. 13, 1994, 108 Stat. 3341, 3397; Pub. L. 104–106, div. D, title XLIII, §4321(g), Feb. 10, 1996, 110 Stat. 675. |
| 8703(b) | 41:57(e). | |
| 8703(c) | 41:57(c). | |
| 8703(d) | 41:57(d). |
In subsection (c)(1), the words "Attorney General" are substituted for "Department of Justice" because of 28:503.
Editorial Notes
Amendments
2018—Subsec. (d)(2). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title)" for "commercial items (as defined in section 103 of this title)".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§8704. Inspection authority
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3839; Pub. L. 115–232, div. A, title VIII, §836(b)(20), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8704 | 41:58. | Mar. 8, 1946, ch. 80, §8, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3525; Pub. L. 103–355, title VIII, §8301(c)(2), Oct. 13, 1994, 108 Stat. 3397. |
In subsection (a), the words "Comptroller General" are substituted for "General Accounting Office" because of 31:702.
Editorial Notes
Amendments
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title)" for "commercial items (as defined in section 103 of this title)".
Statutory Notes and Related Subsidiaries
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
§8705. Administrative offsets
(a)
(b)
(c)
(1)
(A) be paid over to the contracting agency; or
(B) be retained by the prime contractor if the Federal Government has already offset the amount against the prime contractor.
(2)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3840.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8705(a) | 41:56(d). | Mar. 8, 1946, ch. 80, §6, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3524. |
| 8705(b) | 41:56(a). | |
| 8705(c) | 41:56(b). | |
| 8705(d) | 41:56(c). |
§8706. Civil actions
(a)
(1) that knowingly engages in conduct prohibited by section 8702 of this title a civil penalty equal to—
(A) twice the amount of each kickback involved in the violation; and
(B) not more than $10,000 for each occurrence of prohibited conduct; and
(2) whose employee, subcontractor, or subcontractor employee violates section 8702 of this title by providing, accepting, or charging a kickback a civil penalty equal to the amount of that kickback.
(b)
(1) the prohibited conduct establishing the cause of action occurred; or
(2) the Federal Government first knew or should reasonably have known that the prohibited conduct had occurred.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3840.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8706 | 41:55. | Mar. 8, 1946, ch. 80, §5, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3524. |
§8707. Criminal penalties
A person that knowingly and willfully engages in conduct prohibited by section 8702 of this title shall be fined under title 18, imprisoned for not more than 10 years, or both.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3841.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 8707 | 41:54. | Mar. 8, 1946, ch. 80, §4, 60 Stat. 37; Pub. L. 86–695, Sept. 2, 1960, 74 Stat. 740; Pub. L. 99–634, §2(a), Nov. 7, 1986, 100 Stat. 3524. |