[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1107 Enrolled Bill (ENR)]
H.R.1107
One Hundred Eleventh Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the fifth day of January, two thousand and ten
An Act
To enact certain laws relating to public contracts as title 41, United
States Code, ``Public Contracts''.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Table of contents.
Sec. 2. Purpose; conformity with original intent.
Sec. 3. Enactment of Title 41, United States Code.
Sec. 4. Conforming amendment.
Sec. 5. Conforming cross-references.
Sec. 6. Transitional and savings provisions.
Sec. 7. Repeals.
SEC. 2. PURPOSE; CONFORMITY WITH ORIGINAL INTENT.
(a) Purpose.--The purpose of this Act is to enact certain laws
relating to public contracts as title 41, United States Code, ``Public
Contracts''.
(b) Conformity With Original Intent.--In the codification of laws by
this Act, the intent is to conform to the understood policy, intent,
and purpose of Congress in the original enactments, with such
amendments and corrections as will remove ambiguities, contradictions,
and other imperfections, in accordance with section 205(c)(1) of House
Resolution No. 988, 93d Congress, as enacted into law by Public Law 93-
554 (2 U.S.C. 285b(1)).
SEC. 3. ENACTMENT OF TITLE 41, UNITED STATES CODE.
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:
TITLE 41--PUBLIC CONTRACTS
Subtitle Sec.
FEDERAL PROCUREMENT POLICY...........................................101
OTHER ADVERTISING AND CONTRACT PROVISIONS...........................6101
CONTRACT DISPUTES...................................................7101
MISCELLANEOUS.......................................................8101
Subtitle I--Federal Procurement Policy
Division A--General
Chapter Sec.
Definitions..........................................................101
Division B--Office of Federal Procurement Policy
Establishment of Office and Authority and Functions of Administrator1101
Acquisition Councils................................................1301
Cost Accounting Standards...........................................1501
Agency Responsibilities and Procedures..............................1701
Simplified Acquisition Procedures...................................1901
Restrictions on Obtaining and Disclosing Certain Information........2101
Miscellaneous.......................................................2301
Division C--Procurement
General.............................................................3101
Planning and Solicitation...........................................3301
Truthful Cost or Pricing Data.......................................3501
Awarding of Contracts...............................................3701
Specific Types of Contracts.........................................3901
Task and Delivery Order Contracts...................................4101
Allowable Costs.....................................................4301
Contract Financing..................................................4501
Miscellaneous.......................................................4701
Division A--General
CHAPTER 1--DEFINITIONS
SUBCHAPTER I--SUBTITLE DEFINITIONS
Sec.
101. Administrator.
102. Commercial component.
103. Commercial item.
104. Commercially available off-the-shelf item.
105. Component.
106. Federal Acquisition Regulation.
107. Full and open competition.
108. Item and item of supply.
109. Major system.
110. Nondevelopmental item.
111. Procurement.
112. Procurement system.
113. Responsible source.
114. Standards.
115. Supplies.
116. Technical data.
SUBCHAPTER II--DIVISION B DEFINITIONS
131. Acquisition.
132. Competitive procedures.
133. Executive agency.
134. Simplified acquisition threshold.
SUBCHAPTER III--DIVISION C DEFINITIONS
151. Agency head.
152. Competitive procedures.
153. Simplified acquisition threshold for contract in support of
humanitarian or peacekeeping operation.
SUBCHAPTER I--SUBTITLE DEFINITIONS
Sec. 101. Administrator
In this subtitle, the term ``Administrator'' means the Administrator
for Federal Procurement Policy appointed under section 1102 of this
title.
Sec. 102. Commercial component
In this subtitle, the term ``commercial component'' means a component
that is a commercial item.
Sec. 103. Commercial item
In this subtitle, the term ``commercial item'' means--
(1) an item, 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) an item that--
(A) evolved from an item 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) an item 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 items meeting the requirements of
paragraph (1), (2), (3), or (5) that are of a type customarily
combined and sold in combination to the general public;
(5) installation services, maintenance services, repair services,
training services, and other services if--
(A) those services are procured for support of an item
referred to in paragraph (1), (2), (3), or (4), regardless of
whether the services are provided by the same source or at the
same time as the item; 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;
(6) services offered and sold competitively, in substantial
quantities, in the commercial marketplace based on established
catalog or market prices for specific tasks performed or specific
outcomes to be achieved and under standard commercial terms and
conditions;
(7) any item, combination of items, or service referred to in
paragraphs (1) to (6) even though the item, combination of items,
or service is transferred between or among separate divisions,
subsidiaries, or affiliates of a contractor; or
(8) a nondevelopmental item if the procuring agency determines,
in accordance with conditions in the Federal Acquisition
Regulation, that the item was developed exclusively at private
expense and has been sold in substantial quantities, on a
competitive basis, to multiple State and local governments.
Sec. 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 item (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.
Sec. 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.
Sec. 106. Federal Acquisition Regulation
In this subtitle, the term ``Federal Acquisition Regulation'' means
the regulation issued under section 1303(a)(1) of this title.
Sec. 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.
Sec. 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.
Sec. 109. Major system
(a) In General.--In this subtitle, the term ``major system'' means a
combination of elements that will function together to produce the
capabilities required to fulfill a mission need. These elements may
include hardware, equipment, software, or a combination of hardware,
equipment, and software, but do not include construction or other
improvements to real property.
(b) System Deemed To Be Major System.--A system is deemed to be a
major system if--
(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.
Sec. 110. Nondevelopmental item
In this subtitle, the term ``nondevelopmental item'' means--
(1) a commercial item;
(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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 115. Supplies
In this subtitle, the term ``supplies'' has the same meaning as the
terms ``item'' and ``item of supply''.
Sec. 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.
SUBCHAPTER II--DIVISION B DEFINITIONS
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 134. Simplified acquisition threshold
In division B, the term ``simplified acquisition threshold'' means
$100,000.
SUBCHAPTER III--DIVISION C DEFINITIONS
Sec. 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.
Sec. 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).
Sec. 153. Simplified acquisition threshold for contract in support of
humanitarian or peacekeeping operation
(1) In general.--In division C, the term ``simplified acquisition
threshold'' has the meaning provided that term in section 134 of this
title, except that, in the case of a contract to be awarded and
performed, or purchase to be made, outside the United States in support
of a humanitarian or peacekeeping operation, the term means an amount
equal to two times the amount specified for that term in section 134 of
this title.
(2) Definition.--In paragraph (1), the term ``humanitarian or
peacekeeping operation'' means a military operation in support of the
provision of humanitarian or foreign disaster assistance or in support
of a peacekeeping operation under chapter VI or VII of the Charter of
the United Nations. The term does not include routine training, force
rotation, or stationing.
Division B--Office of Federal Procurement Policy
CHAPTER 11--ESTABLISHMENT OF OFFICE AND AUTHORITY AND FUNCTIONS OF
ADMINISTRATOR
SUBCHAPTER I--GENERAL
Sec.
1101. Office of Federal Procurement Policy.
1102. Administrator.
SUBCHAPTER II--AUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR
1121. General authority.
1122. Functions.
1123. Small business concerns.
1124. Tests of innovative procurement methods and procedures.
1125. Recipients of Federal grants or assistance.
1126. Policy regarding consideration of contractor past performance.
1127. Determining benchmark compensation amount.
1128. Maintaining necessary capability with respect to acquisition of
architectural and engineering services.
1129. Center of excellence in contracting for services.
1130. Effect of division on other law.
1131. Annual report.
SUBCHAPTER I--GENERAL
Sec. 1101. Office of Federal Procurement Policy
(a) Organization.--There is an Office of Federal Procurement Policy
in the Office of Management and Budget.
(b) Purposes.--The purposes of the Office of Federal Procurement
Policy are to--
(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) Authorization of Appropriations.--Necessary amounts may be
appropriated each fiscal year for the Office of Federal Procurement
Policy to carry out the responsibilities of the Office for that fiscal
year.
Sec. 1102. Administrator
(a) Head of Office.--The head of the Office of Federal Procurement
Policy is the Administrator for Federal Procurement Policy.
(b) Appointment.--The Administrator is appointed by the President, by
and with the advice and consent of the Senate.
SUBCHAPTER II--AUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR
Sec. 1121. General authority
(a) Overall Direction and Leadership.--The Administrator shall
provide overall direction of procurement policy and leadership in the
development of procurement systems of the executive agencies.
(b) Federal Acquisition Regulation.--To the extent that the
Administrator considers appropriate in carrying out the policies and
functions set forth in this division, and with due regard for
applicable laws and the program activities of the executive agencies,
the Administrator may prescribe Government-wide procurement policies.
The policies shall be implemented in a single Government-wide
procurement regulation called the Federal Acquisition Regulation.
(c) Policies To Be Followed by Executive Agencies.--
(1) Areas of procurement for which policies are to be followed.--
The policies implemented in the Federal Acquisition Regulation
shall be followed by executive agencies in the procurement of--
(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) Procedures to ensure compliance.--The Administrator shall
establish procedures to ensure compliance with the Federal
Acquisition Regulation by all executive agencies.
(3) Application of other laws.--The authority of an executive
agency under another law to prescribe policies, regulations,
procedures, and forms for procurement is subject to the authority
conferred in this section and sections 1122(a) to (c)(1), 1125,
1126, 1130, 1131, and 2305 of this title.
(d) When Certain Agencies Are Unable To Agree or Fail To Act.--In any
instance in which the Administrator determines that the Department of
Defense, the National Aeronautics and Space Administration, and the
General Services Administration are unable to agree on or fail to issue
Government-wide regulations, procedures, and forms in a timely manner,
including regulations, procedures, and forms necessary to implement
prescribed policy the Administrator initiates under subsection (b), the
Administrator, with due regard for applicable laws and the program
activities of the executive agencies and consistent with the policies
and functions set forth in this division, shall prescribe Government-
wide regulations, procedures, and forms which executive agencies shall
follow in procuring items listed in subsection (c)(1).
(e) Oversight of Procurement Regulations of Other Agencies.--The
Administrator, with the concurrence of the Director of the Office of
Management and Budget, and with consultation with the head of the
agency concerned, may deny the promulgation of or rescind any
Government-wide regulation or final rule or regulation of any executive
agency relating to procurement if the Administrator determines that the
rule or regulation is inconsistent with any policies, regulations, or
procedures issued pursuant to subsection (b).
(f) Limitation on Authority.--The authority of the Administrator
under this division shall not be construed to--
(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.
Sec. 1122. Functions
(a) In General.--The functions of the Administrator include--
(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 (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--
(A) foster and promote the development of a professional
acquisition workforce Government-wide;
(B) 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;
(C) collect data and analyze acquisition workforce data from
the Office of Personnel Management, from the heads of executive
agencies, and, through periodic surveys, from individual
employees;
(D) periodically analyze acquisition career fields to
identify critical competencies, duties, tasks, and related
academic prerequisites, skills, and knowledge;
(E) coordinate and assist agencies in identifying and
recruiting highly qualified candidates for acquisition fields;
(F) develop instructional materials for acquisition personnel
in coordination with private and public acquisition colleges
and training facilities;
(G) evaluate the effectiveness of training and career
development programs for acquisition personnel;
(H) promote the establishment and utilization of academic
programs by colleges and universities in acquisition fields;
(I) facilitate, to the extent requested by agencies,
interagency intern and training programs; and
(J) perform other career management or research functions as
directed by the Administrator;
(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 3(p) of the Small Business Act (15 U.S.C. 632(p))),
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 3(p) of the
Small Business Act (15 U.S.C. 632(p))), 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) Consultation and Assistance.--In carrying out the functions in
subsection (a), the Administrator--
(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) Assignment, Delegation, or Transfer.--
(1) To administrator.--Except as otherwise provided by law, only
duties, functions, or responsibilities expressly assigned by this
division shall be assigned, delegated, or transferred to the
Administrator.
(2) By administrator.--
(A) Within office.--The Administrator may make and authorize
delegations within the Office of Federal Procurement Policy
that the Administrator determines to be necessary to carry out
this division.
(B) To another executive agency.--The Administrator may
delegate, and authorize successive redelegations of, an
authority, function, or power of the Administrator under this
division (other than the authority to provide overall direction
of Federal procurement policy and to prescribe policies and
regulations to carry out the policy) to another executive
agency with the consent of the head of the executive agency or
at the direction of the President.
Sec. 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.
Sec. 1124. Tests of innovative procurement methods and procedures
(a) In General.--The Administrator may develop innovative procurement
methods and procedures to be tested by selected executive agencies. In
developing a program to test innovative procurement methods and
procedures under this subsection, the Administrator shall consult with
the heads of executive agencies to--
(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) Approval of Executive Agencies Required.--A program to test
innovative procurement methods and procedures may not be carried out
unless approved by the heads of the executive agencies selected to
carry out the program.
(c) Request for Waiver of Law.--If the Administrator determines that
it is necessary to waive the application of a provision of law to carry
out a proposed program to test innovative procurement methods and
procedures under subsection (a), the Administrator shall transmit
notice of the proposed program to the Committee on Oversight and
Government Reform of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate and request
that the Committees take the necessary action to provide that the
provision of law does not apply with respect to the proposed program.
The notification to Congress shall include--
(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.
Sec. 1125. Recipients of Federal grants or assistance
(a) Authority.--With due regard to applicable laws and the program
activities of the executive agencies administering Federal programs of
grants or assistance, the Administrator may prescribe Government-wide
policies, regulations, procedures, and forms that the Administrator
considers appropriate and that executive agencies shall follow in
providing for the procurement, to the extent required under those
programs, of property or services referred to in section 1121(c)(1) of
this title by recipients of Federal grants or assistance under the
programs.
(b) Limitation.--Subsection (a) does not--
(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.
Sec. 1126. Policy regarding consideration of contractor past
performance
(a) Guidance.--The Administrator shall prescribe for executive
agencies guidance regarding consideration of the past contract
performance of offerors in awarding contracts. The guidance shall
include--
(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) Information Not Available.--If there is no information on past
contract performance of an offeror or the information on past contract
performance is not available, the offeror may not be evaluated
favorably or unfavorably on the factor of past contract performance.
Sec. 1127. Determining benchmark compensation amount
(a) Definitions.--In this section:
(1) Benchmark compensation amount.--The term ``benchmark
compensation amount'', for a fiscal year, is the median amount of
the compensation provided for all senior executives of all
benchmark corporations for the most recent year for which data is
available at the time the determination under subsection (b) is
made.
(2) Benchmark corporation.--The term ``benchmark corporation'',
with respect to a fiscal year, means a publicly-owned United States
corporation that has annual sales in excess of $50,000,000 for the
fiscal year.
(3) Compensation.--The term ``compensation'', for a fiscal year,
means the total amount of wages, salary, bonuses, and deferred
compensation for the fiscal year, whether paid, earned, or
otherwise accruing, as recorded in an employer's cost accounting
records for the fiscal year.
(4) Fiscal year.--The term ``fiscal year'' means a fiscal year a
contractor establishes for accounting purposes.
(5) Publicly-owned united states corporation.--The term
``publicly-owned United States corporation'' means a corporation--
(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) Senior executives.--The term ``senior executives'', with
respect to a contractor, means the 5 most highly compensated
employees in management positions at each home office and each
segment of the contractor.
(b) Determining Benchmark Compensation Amount.--For purposes of
section 4304(a)(16) of this title and section 2324(e)(1)(P) of title
10, the Administrator shall review commercially available surveys of
executive compensation and, on the basis of the results of the review,
determine a benchmark compensation amount to apply for each fiscal
year. In making determinations under this subsection, the Administrator
shall consult with the Director of the Defense Contract Audit Agency
and other officials of executive agencies as the Administrator
considers appropriate.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
CHAPTER 13--ACQUISITION COUNCILS
SUBCHAPTER I--FEDERAL ACQUISITION REGULATORY COUNCIL
Sec.
1301. Definition.
1302. Establishment and membership.
1303. Functions and authority.
1304. Contract clauses and certifications.
SUBCHAPTER II--CHIEF ACQUISITION OFFICERS COUNCIL
1311. Establishment and membership.
1312. Functions.
SUBCHAPTER I--FEDERAL ACQUISITION REGULATORY COUNCIL
Sec. 1301. Definition
In this subchapter, the term ``Council'' means the Federal
Acquisition Regulatory Council established under section 1302(a) of
this title.
Sec. 1302. Establishment and membership
(a) Establishment.--There is a Federal Acquisition Regulatory Council
to assist in the direction and coordination of Government-wide
procurement policy and Government-wide procurement regulatory
activities in the Federal Government.
(b) Membership.--
(1) Makeup of council.--The Council consists of--
(A) the Administrator;
(B) the Secretary of Defense;
(C) the Administrator of National Aeronautics and Space; and
(D) the Administrator of General Services.
(2) Designation of other officials.--
(A) Officials who may be designated.--Notwithstanding section
121(d)(1) and (2) of title 40, the officials specified in
subparagraphs (B) to (D) of paragraph (1) may designate to
serve on and attend meetings of the Council in place of that
official--
(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, Technology,
and Logistics; 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) Limitation on designation.--No other official or employee
may be designated to serve on the Council.
Sec. 1303. Functions and authority
(a) Functions.--
(1) Issue and maintain federal acquisition regulation.--Subject
to sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and
2305 of this title, the Administrator of General Services, the
Secretary of Defense, and the Administrator of National Aeronautics
and Space, pursuant to their respective authorities under division
C of this subtitle, chapters 4 and 137 of title 10, and the
National Aeronautics and Space Act of 1958 (42 U.S.C. 2451 et
seq.), shall jointly issue and maintain in accordance with
subsection (d) a single Government-wide procurement regulation, to
be known as the Federal Acquisition Regulation.
(2) Limitation on other regulations.--Other regulations relating
to procurement issued by an executive agency shall be limited to--
(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) Ensure consistent regulations.--The Administrator, in
consultation with the Council, shall ensure that procurement
regulations prescribed by executive agencies are consistent with
the Federal Acquisition Regulation and in accordance with the
policies prescribed pursuant to section 1121(b) of this title.
(4) Request to review regulation.--
(A) Basis for request.--Under procedures the Administrator
establishes, a person may request the Administrator to review a
regulation relating to procurement on the basis that the
regulation is inconsistent with the Federal Acquisition
Regulation.
(B) Period of review.--Unless the request is frivolous or
does not, on its face, state a valid basis for the review, the
Administrator shall complete the review not later than 60 days
after receiving the request. The time for completion of the
review may be extended if the Administrator determines that an
additional period of review is required. The Administrator
shall advise the requester of the reasons for the extension and
the date by which the review will be completed.
(5) When regulation is inconsistent or needs to be improved.--If
the Administrator determines that a regulation relating to
procurement is inconsistent with the Federal Acquisition Regulation
or that the regulation otherwise should be revised to remove an
inconsistency with the policies prescribed under section 1121(b) of
this title, the Administrator shall rescind or deny the
promulgation of the regulation or take other action authorized
under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and
2305 of this title as may be necessary to remove the inconsistency.
If the Administrator determines that the regulation, although not
inconsistent with the Federal Acquisition Regulation or those
policies, should be revised to improve compliance with the
Regulation or policies, the Administrator shall take action
authorized under sections 1121, 1122(a) to (c)(1), 1125, 1126,
1130, 1131, and 2305 as may be necessary and appropriate.
(6) Decisions to be in writing and publicly available.--The
decisions of the Administrator shall be in writing and made
publicly available.
(b) Additional Responsibilities of Membership.--
(1) In general.--Subject to the authority, direction, and control
of the head of the agency concerned, each official who represents
an agency on the Council pursuant to section 1302(b) of this title
shall--
(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) Limitation on delegation.--The authority to review and
approve or disapprove regulations under paragraph (1)(A) may not be
delegated to an individual outside the office of the official who
represents the agency on the Council pursuant to section 1302(b) of
this title.
(c) Governing Policies.--All actions of the Council and of members of
the Council shall be in accordance with and furtherance of the policies
prescribed under section 1121(b) of this title.
(d) General Authority With Respect to Federal Acquisition
Regulation.--Subject to section 1121(d) of this title, the Council
shall manage, coordinate, control, and monitor the maintenance of,
issuance of, and changes in, the Federal Acquisition Regulation.
Sec. 1304. Contract clauses and certifications
(a) Repetitive Nonstandard Contract Clauses Discouraged.--The Council
shall prescribe regulations to discourage the use of a nonstandard
contract clause on a repetitive basis. The regulations shall include
provisions that--
(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) When Certification Required.--
(1) By law.--A provision of law may not be construed as requiring
a certification by a contractor or offeror in a procurement made or
to be made by the Federal Government unless that provision of law
specifically provides that such a certification shall be required.
(2) In federal acquisition regulation.--A requirement for a
certification by a contractor or offeror may not be included in the
Federal Acquisition Regulation unless--
(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) Executive agency procurement regulation.--
(A) Definition.--In subparagraph (B), the term ``head of the
executive agency'' with respect to a military department means
the Secretary of Defense.
(B) When certification requirement may be included in
regulation.--A requirement for a certification by a contractor
or offeror may not be included in a procurement regulation of
an executive agency unless--
(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.
SUBCHAPTER II--CHIEF ACQUISITION OFFICERS COUNCIL
Sec. 1311. Establishment and membership
(a) Establishment.--There is in the executive branch a Chief
Acquisition Officers Council.
(b) Membership.--The members of the Council are--
(1) the Deputy Director for Management of the Office of
Management and Budget;
(2) the Administrator;
(3) the Under Secretary of Defense for Acquisition, Technology,
and Logistics;
(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) Leadership and Support.--
(1) Chairman.--The Deputy Director for Management of the Office
of Management and Budget is the Chairman of the Council.
(2) Vice chairman.--The Vice Chairman of the Council shall be
selected by the Council from among its members. The Vice Chairman
serves for one year and may serve multiple terms.
(3) Leader of activities.--The Administrator shall lead the
activities of the Council on behalf of the Deputy Director for
Management.
(4) Support.--The Administrator of General Services shall provide
administrative and other support for the Council.
Sec. 1312. Functions
(a) Principal Forum.--The Chief Acquisition Officers Council is the
principal interagency forum for monitoring and improving the Federal
acquisition system.
(b) Functions.--The Council shall perform functions that include the
following:
(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.
CHAPTER 15--COST ACCOUNTING STANDARDS
Sec.
1501. Cost Accounting Standards Board.
1502. Cost accounting standards.
1503. Contract price adjustment.
1504. Effect on other standards and regulations.
1505. Examinations.
1506. Authorization of appropriations.
Sec. 1501. Cost Accounting Standards Board
(a) Organization.--The Cost Accounting Standards Board is an
independent board in the Office of Federal Procurement Policy.
(b) Membership.--
(1) Number of members, chairman, and appointment.--The Board
consists of 5 members. One member is the Administrator, who serves
as Chairman. The other 4 members, all of whom shall have experience
in Federal Government contract cost accounting, are as follows:
(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.
(2) Term of office.--
(A) Length of term.--The term of office of each member, other
than the Administrator, is 4 years. The terms are staggered,
with the terms of 2 members expiring in the same year, the term
of another member expiring the next year, and the term of the
last member expiring the year after that.
(B) Individual required to remain with appointing agency.--A
member appointed under paragraph (1)(A) may not continue to
serve after ceasing to be an officer or employee of the agency
from which that member was appointed.
(3) Vacancy.--A vacancy on the Board shall be filled in the same
manner in which the original appointment was made. A member
appointed to fill a vacancy serves for the remainder of the term
for which that member's predecessor was appointed.
(c) Senior Staff.--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.
(d) Other Staff.--The Administrator may appoint, fix the compensation
of, and remove additional employees of the Board under the applicable
provisions of title 5.
(e) Detailed and Temporary Personnel.--For service on advisory
committees and task forces to assist the Board in carrying out its
functions and responsibilities--
(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.
(f) Compensation.--
(1) Officers and employees of the government.--Members of the
Board who are officers or employees of the Federal Government, and
officers and employees of other agencies of the Federal Government
who are used under subsection (e)(1), shall not receive additional
compensation for services but shall continue to be compensated by
the employing department or agency of the officer or employee.
(2) Appointees from private sector.--Each member of the Board
appointed from the private sector shall receive compensation at a
rate not to exceed the daily equivalent of the rate for level IV of
the Executive Schedule for each day (including travel time) in
which the member is engaged in the actual performance of duties
vested in the Board.
(3) Temporary and intermittent personnel.--An individual hired
under subsection (e)(2) may receive compensation at a rate fixed by
the Administrator, but not to exceed the daily equivalent of the
rate for level V of the Executive Schedule for each day (including
travel time) in which the individual is properly engaged in the
actual performance of duties under this chapter.
(4) Travel expenses.--While serving away from home or regular
place of business, Board members and other individuals serving on
an intermittent basis under this chapter shall be allowed travel
expenses in accordance with section 5703 of title 5.
Sec. 1502. Cost accounting standards
(a) Authority.--
(1) Cost accounting standards board.--The Cost Accounting
Standards Board has exclusive authority to prescribe, amend, and
rescind cost accounting standards, and interpretations of the
standards, designed to achieve uniformity and consistency in the
cost accounting standards governing measurement, assignment, and
allocation of costs to contracts with the Federal Government.
(2) Administrator for federal procurement policy.--The
Administrator, after consultation with the Board, shall prescribe
rules and procedures governing actions of the Board under this
chapter. The rules and procedures shall require that any action to
prescribe, amend, or rescind a standard or interpretation be
approved by majority vote of the Board.
(b) Mandatory Use of Standards.--
(1) Subcontract.--
(A) Definition.--In this paragraph, the term ``subcontract''
includes a transfer of commercial items between divisions,
subsidiaries, or affiliates of a contractor or subcontractor.
(B) When standards are to be used.--Cost accounting standards
prescribed under this chapter are mandatory for use by all
executive agencies and by contractors and subcontractors in
estimating, accumulating, and reporting costs in connection
with the pricing and administration of, and settlement of
disputes concerning, all negotiated prime contract and
subcontract procurements with the Federal Government in excess
of the amount set forth in section 2306a(a)(1)(A)(i) of title
10 as the amount is adjusted in accordance with applicable
requirements of law.
(C) Nonapplication of standards.--Subparagraph (B) does not
apply to--
(i) a contract or subcontract for the acquisition of a
commercial item;
(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) Exemptions and waivers by board.--The Board may--
(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) Waiver by head of executive agency.--
(A) In general.--The head of an executive agency may waive
the applicability of the cost accounting standards for a
contract or subcontract with a value of less than $15,000,000
if that official determines in writing that the segment of the
contractor or subcontractor that will perform the work--
(i) is primarily engaged in the sale of commercial items;
and
(ii) would not otherwise be subject to the cost
accounting standards under this section.
(B) In exceptional circumstances.--The head of an executive
agency may waive the applicability of the cost accounting
standards for a contract or subcontract under exceptional
circumstances when necessary to meet the needs of the agency. A
determination to waive the applicability of the standards under
this subparagraph shall be set forth in writing and shall
include a statement of the circumstances justifying the waiver.
(C) Restriction on delegation of authority.--The head of an
executive agency may not delegate the authority under
subparagraph (A) or (B) to an official in the executive agency
below the senior policymaking level in the executive agency.
(D) Contents of federal acquisition regulation.--The Federal
Acquisition Regulation shall include--
(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) Report.--The head of each executive agency shall report
the waivers granted under subparagraphs (A) and (B) for that
agency to the Board on an annual basis.
(c) Required Board Action for Prescribing Standards and
Interpretations.--Before prescribing cost accounting standards and
interpretations, the Board shall--
(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) Effective Dates.--Rules, regulations, cost accounting standards,
and modifications thereof prescribed or amended under this chapter
shall have the full force and effect of law, and shall become effective
within 120 days after publication in the Federal Register in final
form, unless the Board determines that a longer period is necessary.
The Board shall determine implementation dates for contractors and
subcontractors. The dates may not be later than the beginning of the
second fiscal year of the contractor or subcontractor after the
standard becomes effective.
(e) Accompanying Material.--Rules, regulations, cost accounting
standards, and modifications thereof prescribed or amended under this
chapter shall be accompanied by prefatory comments and by
illustrations, if necessary.
(f) Implementing Regulations.--The Board shall prescribe regulations
for the implementation of cost accounting standards prescribed or
interpreted under this section. The regulations shall be incorporated
into the Federal Acquisition Regulation and shall require contractors
and subcontractors as a condition of contracting with the Federal
Government to--
(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) Nonapplicability of Certain Sections of Title 5.--Functions
exercised under this chapter are not subject to sections 551, 553 to
559, and 701 to 706 of title 5.
Sec. 1503. Contract price adjustment
(a) Disagreement Constitutes a Dispute.--If the Federal Government
and a contractor or subcontractor fail to agree on a contract price
adjustment, including whether the contractor or subcontractor has
complied with the applicable cost accounting standards, the
disagreement will constitute a dispute under chapter 71 of this title.
(b) Amount of Adjustment.--A contract price adjustment undertaken
under section 1502(f)(2) of this title shall be made, where applicable,
on relevant contracts between the Federal Government and the contractor
that are subject to the cost accounting standards so as to protect the
Federal Government from payment, in the aggregate, of increased costs,
as defined by the Cost Accounting Standards Board. The Federal
Government may not recover costs greater than the aggregate increased
cost to the Federal Government, as defined by the Board, on the
relevant contracts subject to the price adjustment unless the
contractor made a change in its cost accounting practices of which it
was aware or should have been aware at the time of the price
negotiation and which it failed to disclose to the Federal Government.
(c) Interest.--The interest rate applicable to a contract price
adjustment is the annual rate of interest established under section
6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621) for the
period. Interest accrues from the time payments of the increased costs
were made to the contractor or subcontractor to the time the Federal
Government receives full compensation for the price adjustment.
Sec. 1504. Effect on other standards and regulations
(a) Previously Existing Standards.--All cost accounting standards,
waivers, exemptions, interpretations, modifications, rules, and
regulations prescribed by the Cost Accounting Standards Board under
section 719 of the Defense Production Act of 1950 (50 U.S.C. App.
2168)--
(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) Inconsistent Agency Regulations.--To ensure that a regulation or
proposed regulation of an executive agency is not inconsistent with a
cost accounting standard prescribed or amended under this chapter, the
Administrator, under the authority in sections 1121, 1122(a) to (c)(1),
1125, 1126, 1130, 1131, and 2305 of this title, shall rescind or deny
the promulgation of the inconsistent regulation or proposed regulation
and take other appropriate action authorized under sections 1121,
1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305.
(c) Costs Not Subject to Different Standards.--Costs that are the
subject of cost accounting standards prescribed under this chapter are
not subject to regulations established by another executive agency that
differ from those standards with respect to the measurement,
assignment, and allocation of those costs.
Sec. 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 the Inspector General Act of 1978 (5 U.S.C. App.), 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.
Sec. 1506. Authorization of appropriations
Necessary amounts may be appropriated to carry out this chapter.
CHAPTER 17--AGENCY RESPONSIBILITIES AND PROCEDURES
Sec.
1701. Cooperation with the Administrator.
1702. Chief Acquisition Officers and senior procurement executives.
1703. Acquisition workforce.
1704. Planning and policy-making for acquisition workforce.
1705. Advocates for competition.
1706. Personnel evaluation.
1707. Publication of proposed regulations.
1708. Procurement notice.
1709. Contracting functions performed by Federal personnel.
1710. Public-private competition required before conversion to
contractor performance.
1711. Value engineering.
1712. Record requirements.
1713. Procurement data.
Sec. 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.
Sec. 1702. Chief Acquisition Officers and senior procurement executives
(a) Appointment or Designation of Chief Acquisition Officer.--The
head of each executive agency described in section 901(b)(1) (other
than the Department of Defense) or 901(b)(2)(C) of title 31 with a
Chief Financial Officer appointed or designated under section 901(a) of
title 31 shall appoint or designate a non-career employee as Chief
Acquisition Officer for the agency.
(b) Authority and Functions of Chief Acquisition Officer.--
(1) Primary duty.--The primary duty of a Chief Acquisition
Officer is acquisition management.
(2) Advice and assistance.--A Chief Acquisition Officer shall
advise and assist the head of the executive agency and other agency
officials to ensure that the mission of the executive agency is
achieved through the management of the agency's acquisition
activities.
(3) Other functions.--The functions of each Chief Acquisition
Officer include--
(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) developing and maintaining an acquisition career
management program in the executive agency to ensure that there
is an adequate professional workforce; and
(G) 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) Senior Procurement Executive.--
(1) Designation.--The head of each executive agency shall
designate a senior procurement executive.
(2) Responsibility.--The senior procurement executive is
responsible for management direction of the procurement system of
the executive agency, including implementation of the unique
procurement policies, regulations, and standards of the executive
agency.
(3) When chief acquisition officer appointed or designated.--For
an executive agency for which a Chief Acquisition Officer has been
appointed or designated under subsection (a), the head of the
executive agency shall--
(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.
Sec. 1703. Acquisition workforce
(a) Description.--For purposes of this section, the acquisition
workforce of an agency consists of all employees serving in acquisition
positions listed in subsection (g)(1)(A).
(b) Applicability.--
(1) Nonapplicability to certain executive agencies.--Except as
provided in subsection (i), this section does not apply to an
executive agency that is subject to chapter 87 of title 10.
(2) Applicability of programs.--The programs established by this
section apply to the acquisition workforce of each executive
agency.
(c) Management Policies.--
(1) Duties of head of executive agency.--
(A) Establish policies and procedures.--After consultation
with the Administrator, the head of each executive agency shall
establish policies and procedures for the effective management
(including accession, education, training, career development,
and performance incentives) of the acquisition workforce of the
agency. The development of acquisition workforce policies under
this section shall be carried out consistent with the merit
system principles set forth in section 2301(b) of title 5.
(B) Ensure uniform implementation.--The head of each
executive agency shall ensure that, to the maximum extent
practicable, acquisition workforce policies and procedures
established are uniform in their implementation throughout the
agency.
(2) Duties of administrator.--The Administrator shall issue
policies to promote uniform implementation of this section by
executive agencies, with due regard for differences in program
requirements among agencies that may be appropriate and warranted
in view of the agency mission. The Administrator shall coordinate
with the Deputy Director for Management of the Office of Management
and Budget to ensure that the policies are consistent with the
policies and procedures established, and enhanced system of
incentives provided, pursuant to section 5051(c) of the Federal
Acquisition Streamlining Act of 1994 (Public Law 103-355, 108 Stat.
3351). The Administrator shall evaluate the implementation of this
section by executive agencies.
(d) Authority and Responsibility of Senior Procurement Executive.--
Subject to the authority, direction, and control of the head of an
executive agency, the senior procurement executive of the agency shall
carry out all powers, functions, and duties of the head of the agency
with respect to implementing this section. The senior procurement
executive shall ensure that the policies of the head of the executive
agency established in accordance with this section are implemented
throughout the agency.
(e) Collecting and Maintaining Information.--The Administrator shall
ensure that the heads of executive agencies collect and maintain
standardized information on the acquisition workforce related to
implementing this section. To the maximum extent practicable,
information requirements shall conform to standards the Director of the
Office of Personnel Management establishes for the Central Personnel
Data File.
(f) Career Development.--
(1) Career paths.--
(A) Identification.--The head of each executive agency shall
ensure that appropriate career paths for personnel who desire
to pursue careers in acquisition are identified in terms of the
education, training, experience, and assignments necessary for
career progression to the most senior acquisition positions.
The head of each executive agency shall make available
information on those career paths.
(B) Critical duties and tasks.--For each career path, the
head of each executive agency shall identify the critical
acquisition-related duties and tasks in which, at minimum,
employees of the agency in the career path shall be competent
to perform at full performance grade levels. For this purpose,
the head of the executive agency shall provide appropriate
coverage of the critical duties and tasks identified by the
Director of the Federal Acquisition Institute.
(C) Mandatory training and education.--For each career path,
the head of each executive agency shall establish requirements
for the completion of course work and related on-the-job
training in the critical acquisition-related duties and tasks
of the career path. The head of each executive agency also
shall encourage employees to maintain the currency of their
acquisition knowledge and generally enhance their knowledge of
related acquisition management disciplines through academic
programs and other self-developmental activities.
(2) Performance incentives.--The head of each executive agency
shall provide for an enhanced system of incentives to encourage
excellence in the acquisition workforce that rewards performance of
employees who contribute to achieving the agency's performance
goals. The system of incentives shall include provisions that--
(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) Qualification Requirements.--
(1) In general.--Subject to paragraph (2), the Administrator
shall--
(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) Relationship to requirements applicable to defense
acquisition workforce.--The Administrator shall establish
qualification requirements and make prescriptions under paragraph
(1) that are comparable to those established for the same or
equivalent positions pursuant to chapter 87 of title 10 with
appropriate modifications.
(3) Approval of requirements.--The Administrator shall submit any
requirement established or prescription made under paragraph (1) to
the Director of the Office of Personnel Management for approval.
The Director is deemed to have approved the requirement or
prescription if the Director does not disapprove the requirement or
prescription within 30 days after receiving it.
(h) Education and Training.--
(1) Funding levels.--The head of an executive agency shall set
forth separately the funding levels requested for educating and
training the acquisition workforce in the budget justification
documents submitted in support of the President's budget submitted
to Congress under section 1105 of title 31.
(2) Tuition assistance.--The head of an executive agency may
provide tuition reimbursement in education (including a full-time
course of study leading to a degree) in accordance with section
4107 of title 5 for personnel serving in acquisition positions in
the agency.
(3) Restricted obligation.--Amounts appropriated for education
and training under this section may not be obligated for another
purpose.
(i) Training Fund.--
(1) Purposes.--The purposes of this subsection are to ensure that
the Federal acquisition workforce--
(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) Establishment and management of fund.--There is an
acquisition workforce training fund. The Administrator of General
Services shall manage the fund through the Federal Acquisition
Institute to support the training of the acquisition workforce of
the executive agencies, except as provided in paragraph (5). The
Administrator of General Services shall consult with the
Administrator in managing the fund.
(3) Credits to fund.--Five percent of the fees collected by
executive agencies (other than the Department of Defense) under the
following contracts shall be credited to the fund:
(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) Remittance by head of executive agency.--The head of an
executive agency that administers a contract described in paragraph
(3) shall remit to the General Services Administration the amount
required to be credited to the fund with respect to the contract at
the end of each quarter of the fiscal year.
(5) Transfer and use of fees collected from department of
defense.--The Administrator of General Services shall transfer to
the Secretary of Defense fees collected from the Department of
Defense pursuant to paragraph (3). The Defense Acquisition
University shall use the fees for acquisition workforce training.
(6) Amounts not to be used for other purposes.--The Administrator
of General Services, through the Office of Federal Procurememt
Policy, shall ensure that amounts collected for training under this
subsection are not used for a purpose other than the purpose
specified in paragraph (2).
(7) Amounts are in addition to other amounts for education and
training.--Amounts credited to the fund are in addition to amounts
requested and appropriated for education and training referred to
in subsection (h)(1).
(8) Availability of amounts.--Amounts credited to the fund remain
available to be expended only in the fiscal year for which they are
credited and the 2 succeeding fiscal years.
(j) Recruitment Program.--
(1) Shortage category positions.--For purposes of sections 3304,
5333, and 5753 of title 5, the head of a department or agency of
the Federal Government (other than the Secretary of Defense) may
determine, under regulations prescribed by the Office of Personnel
Management, that certain Federal acquisition positions (as
described in subsection (g)(1)(A)) are shortage category positions
in order to use the authorities in those sections to recruit and
appoint highly qualified individuals directly to those positions in
the department or agency.
(2) Termination of authority.--The head of a department or agency
may not appoint an individual to a position of employment under
this subsection after September 30, 2012.
(k) Reemployment Without Loss of Annuity.--
(1) Establishment of policies and procedures.--The head of each
executive agency, after consultation with the Administrator and the
Director of the Office of Personnel Management, shall establish
policies and procedures under which the agency head may reemploy in
an acquisition-related position (as described in subsection
(g)(1)(A)) an individual receiving an annuity from the Civil
Service Retirement and Disability Fund, on the basis of the
individual's service, without discontinuing the annuity. The head
of each executive agency shall keep the Administrator informed of
the agency's use of this authority.
(2) Criteria for continuation of annuity.--Policies and
procedures established under paragraph (1) shall authorize the head
of the executive agency, on a case-by-case basis, to continue an
annuity if any of the following makes the reemployment of an
individual essential:
(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) Service not subject to csrs or fers.--An individual
reemployed under this subsection shall not be deemed an employee
for purposes of chapter 83 or 84 of title 5.
(4) Reporting requirement.--The Administrator shall submit
annually to the Committee on Oversight and Government Reform of the
House of Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate a report on the use of the
authority under this subsection, including the number of employees
reemployed under authority of this subsection.
(5) Sunset provision.--The authority under this subsection
expires on December 31, 2011.
Sec. 1704. Planning and policy-making for acquisition workforce
(a) Definitions.--In this section:
(1) Associate Administrator.--The term ``Associate
Administrator'' means the Associate Administrator for Acquisition
Workforce Programs as designated by the Administrator pursuant to
subsection (b).
(2) Chief Acquisition Officer.--The term ``Chief Acquisition
Officer'' means a Chief Acquisition Officer for an executive agency
appointed pursuant to section 1702 of this title.
(b) Associate Administrator for Acquisition Workforce Programs.--The
Administrator shall designate a member of the Senior Executive Service
as the Associate Administrator for Acquisition Workforce Programs. The
Associate Administrator shall be located in the Federal Acquisition
Institute (or its successor). The Associate Administrator shall be
responsible for--
(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; and
(5) carrying out other functions that the Administrator may
assign.
(c) Acquisition and Contracting Training Programs Within Executive
Agencies.--
(1) Chief Acquisition Officer authorities and responsibilities.--
Subject to the authority, direction, and control of the head of an
executive agency, the Chief Acquisition Officer for that agency
shall carry out all powers, functions, and duties of the head of
the agency with respect to implementation of this subsection. The
Chief Acquisition Officer shall ensure that the policies
established by the head of the agency in accordance with this
subsection are implemented throughout the agency.
(2) Requirement.--The head of each executive agency, after
consultation with the Associate Administrator, shall establish and
operate acquisition and contracting training programs. The programs
shall--
(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) Government-wide Policies and Evaluation.--The Administrator
shall issue policies to promote the development of performance
standards for training and uniform implementation of this section by
executive agencies, with due regard for differences in program
requirements among agencies that may be appropriate and warranted in
view of the agency mission. The Administrator shall evaluate the
implementation of the provisions of subsection (c) by executive
agencies.
(e) Information on Acquisition and Contracting Training.--The
Administrator shall ensure that the heads of executive agencies collect
and maintain standardized information on the acquisition and
contracting workforce related to the implementation of subsection (c).
(f) Acquisition Workforce Human Capital Succession Plan.--
(1) In general.--Each Chief Acquisition Officer for an executive
agency shall develop, in consultation with the Chief Human Capital
Officer for the agency and the Associate Administrator, a
succession plan consistent with the agency's strategic human
capital plan for the recruitment, development, and retention of the
agency's acquisition workforce, with a particular focus on
warranted contracting officers and program managers of the agency.
(2) Content of plan.--The acquisition workforce succession plan
shall address--
(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) Acquisition Workforce Development Strategic Plan.--
(1) Purpose.--The purpose of this subsection is to authorize the
preparation and completion of the Acquisition Workforce Development
Strategic Plan, which is a plan for Federal agencies other than the
Department of Defense to--
(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) Establishment of plan.--The Associate Administrator shall be
responsible for the management, oversight, and administration of
the Acquisition Workforce Development Strategic Plan in cooperation
and consultation with the Office of Federal Procurement Policy and
with the assistance of the Federal Acquisition Institute.
(3) Criteria.--The Acquisition Workforce Development Strategic
Plan shall include an examination of the following matters:
(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) Deadline for completion.--The Acquisition Workforce
Development Strategic Plan shall be completed not later than one
year after October 14, 2008, and in a fashion that allows for
immediate implementation of its recommendations and guidelines.
(5) Funds.--The acquisition workforce development strategic plan
shall be funded from the acquisition workforce training fund under
section 1703(i) of this title.
(h) Training in the Acquisition of Architect and Engineering
Services.--The Administrator shall ensure that a sufficient number of
Federal employees are trained in the acquisition of architect and
engineering services.
(i) Utilization of Recruitment and Retention Authorities.--The
Administrator, in coordination with the Director of the Office of
Personnel Management, shall encourage executive agencies to use
existing authorities, including direct hire authority and tuition
assistance programs, to recruit and retain acquisition personnel and
consider recruiting acquisition personnel who may be retiring from the
private sector, consistent with existing laws and regulations.
Sec. 1705. Advocates for competition
(a) Establishment and Designation.--
(1) Establishment.--Each executive agency has an advocate for
competition.
(2) Designation.--The head of each executive agency shall--
(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) Duties and Functions.--The advocate for competition of an
executive agency shall--
(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) Responsibilities.--The advocate for competition for each
procuring activity is responsible for promoting full and open
competition, promoting the acquisition of commercial items, and
challenging barriers to acquisition, including unnecessarily
restrictive statements of need, unnecessarily detailed specifications,
and unnecessarily burdensome contract clauses.
Sec. 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.
Sec. 1707. Publication of proposed regulations
(a) Covered Policies, Regulations, Procedures, and Forms.--
(1) Required comment period.--Except as provided in subsection
(d), a procurement policy, regulation, procedure, or form
(including an amendment or modification thereto) may not take
effect until 60 days after it is published for public comment in
the Federal Register pursuant to subsection (b) if it--
(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) Exception.--A policy, regulation, procedure, or form may take
effect earlier than 60 days after the publication date when there
are compelling circumstances for the earlier effective date, but
the effective date may not be less than 30 days after the
publication date.
(b) Publication in Federal Register and Comment Period.--Subject to
subsection (c), the head of the agency shall have published in the
Federal Register a notice of the proposed procurement policy,
regulation, procedure, or form and provide for a public comment period
for receiving and considering the views of all interested parties on
the proposal. The length of the comment period may not be less than 30
days.
(c) Contents of Notice.--Notice of a proposed procurement policy,
regulation, procedure, or form prepared for publication in the Federal
Register shall include--
(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) Waiver.--The requirements of subsections (a) and (b) may be
waived by the officer authorized to issue a procurement policy,
regulation, procedure, or form if urgent and compelling circumstances
make compliance with the requirements impracticable.
(e) Effectiveness of Policy, Regulation, Procedure, or Form.--
(1) Temporary basis.--A procurement policy, regulation,
procedure, or form for which the requirements of subsections (a)
and (b) are waived under subsection (d) is effective on a temporary
basis if--
(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) Final policy, regulation, procedure, or form.--After
considering the comments received, the head of the agency waiving
the requirements of subsections (a) and (b) under subsection (d)
may issue the final procurement policy, regulation, procedure, or
form.
Sec. 1708. Procurement notice
(a) Notice Requirement.--Except as provided in subsection (b)--
(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) Exemptions.--
(1) In general.--A notice is not required under subsection (a)
if--
(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) Certain procurements.--The requirements of subsection (a)(2)
do not apply to a procurement--
(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 2304(c) 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) Implementation consistent with international agreements.--
Paragraph (1)(A) shall be implemented in a manner consistent with
applicable international agreements.
(c) Contents of Notice.--Each notice of solicitation required by
paragraph (1) or (2) of subsection (a) shall include--
(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 items 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) Electronic Publication of Notice of Solicitation, Award, or
Order.--A notice of solicitation, award, or order required to be
published under subsection (a) shall be published by electronic means.
The notice must be electronically accessible in a form that allows
convenient and universal user access through the single Government-wide
point of entry designated in the Federal Acquisition Regulation.
(e) Time Limitations.--
(1) Issuing notice of solicitation and establishing deadline for
submitting bids and proposals.--An executive agency required by
subsection (a)(2) to publish a notice of solicitation may not--
(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) Establishing deadline when none provided by statute.--An
executive agency shall establish a deadline for the submission of
all bids or proposals in response to a solicitation for which a
deadline is not provided by statute. Each deadline for the
submission of offers shall afford potential offerors a reasonable
opportunity to respond.
(3) Flexible deadlines.--The Administrator shall prescribe
regulations defining limited circumstances in which flexible
deadlines can be used under paragraph (1) for the issuance of
solicitations and the submission of bids or proposals for the
procurement of commercial items.
(f) Consideration of Certain Timely Received Offers.--An executive
agency intending to solicit offers for a contract for which a notice of
solicitation is required to be posted under subsection (a)(1) shall
ensure that contracting officers consider each responsive offer timely
received from an offeror.
(g) Availability of Complete Solicitation Package and Payment of
Fee.--An executive agency shall make available to a business concern,
or the authorized representative of a concern, the complete
solicitation package for any on-going procurement announced pursuant to
a notice of solicitation under subsection (a). An executive agency may
require the payment of a fee, not exceeding the actual cost of
duplication, for a copy of the package.
Sec. 1709. Contracting functions performed by Federal personnel
(a) Covered Personnel.--Personnel referred to in subsection (b) are--
(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) Limitation on Payment for Advisory and Assistance Services.--No
individual who is not an individual described in subsection (a) may be
paid by an executive agency for services to conduct evaluations or
analyses of any aspect of a proposal submitted for an acquisition
unless personnel described in subsection (a) with adequate training and
capabilities to perform the evaluations and analyses are not readily
available in the agency or another Federal agency. When administering
this subsection, the head of each executive agency shall determine in
accordance with standards and procedures prescribed in the Federal
Acquisition Regulation whether--
(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) Certain Relationship Not Affected.--This section does not affect
the relationship between the Federal Government and a Federally funded
research and development center.
Sec. 1710. Public-private competition required before conversion to
contractor performance
(a) Public-private competition.--
(1) When conversion to contractor performance is allowed.--A
function of an executive agency performed by 10 or more agency
civilian employees may not be converted, in whole or in part, to
performance by a contractor unless the conversion is based on the
results of a public-private competition that--
(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) Not a new requirement.--A function that is performed by the
executive agency and is reengineered, reorganized, modernized,
upgraded, expanded, or changed to become more efficient, but still
essentially provides the same service, shall not be considered a
new requirement.
(3) Prohibitions.--In no case may a function being performed by
executive agency personnel be--
(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) Consulting With Affected Employees or Their Representatives.--
(1) Consulting with affected employees.--Each civilian employee
of an executive agency responsible for determining under Office of
Management and Budget Circular A76 whether to convert to contractor
performance any function of the executive agency--
(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) Consulting with representatives.--
(A) Employees represented by a labor organization.--In the
case of employees represented by a labor organization accorded
exclusive recognition under section 7111 of title 5,
consultation with representatives of that labor organization
shall satisfy the consultation requirement in paragraph (1).
(B) Employees not represented by a labor organization.--In
the case of employees other than employees referred to in
subparagraph (A), consultation with appropriate representatives
of those employees shall satisfy the consultation requirement
in paragraph (1).
(3) Regulations.--The head of each executive agency shall
prescribe regulations to carry out this subsection. The regulations
shall include provisions for the selection or designation of
appropriate representatives of employees referred to in paragraph
(2)(B) for purposes of consultation required by paragraph (1).
(c) Congressional Notification.--
(1) Report.--Before commencing a public-private competition under
subsection (a), the head of an executive agency shall submit to
Congress a report containing the following:
(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) Examination of potential economic effect.--The report
required under paragraph (1) shall include an examination of the
potential economic effect of performance of the function by a
contractor on--
(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) Objections to public-private competition.--
(A) Grounds.--A representative individual or entity at a
facility where a public-private competition is conducted may
submit to the head of the executive agency an objection to the
public-private competition on the grounds that--
(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) Deadlines.--The objection shall be in writing and shall
be submitted within 90 days after the following date:
(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) Report and certification required before solicitation or
award of contract.--If the head of the executive agency
determines that the report required by paragraph (1) was not
submitted or that the required certification was not included
in the submitted report, the function for which the public-
private competition was conducted for which the objection was
submitted may not be the subject of a solicitation of offers
for, or award of, a contract until, respectively, the report is
submitted or a report containing the certification in full
compliance with the certification requirement is submitted.
(d) Exemption for the Purchase of Products and Services of the Blind
and Other Severely Disabled People.--This section shall not apply to a
commercial or industrial type function of an executive agency that is--
(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) Inapplicability During War or Emergency.--The provisions of this
section shall not apply during war or during a period of national
emergency declared by the President or Congress.
Sec. 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.
Sec. 1712. Record requirements
(a) Maintaining Records on Computer.--Each executive agency shall
establish and maintain for 5 years a computer file, by fiscal year,
containing unclassified records of all procurements greater than the
simplified acquisition threshold in that fiscal year.
(b) Contents.--The record established under subsection (a) shall
include, with respect to each procurement carried out using--
(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
2304(c) of title 10 for using the procedures; and
(C) the identity of the organization or activity that
conducted the procurement.
(c) Separate Record Category for Procurements Resulting in One Bid or
Proposal.--Information included in a record pursuant to subsection
(b)(1) that relates to procurements resulting in the submission of a
bid or proposal by only one responsible source shall be separately
categorized from the information relating to other procurements
included in the record. The record of that information shall be
designated ``noncompetitive procurements using competitive
procedures''.
(d) Transmission and Data Entry of Information.--The head of each
executive agency shall--
(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.
Sec. 1713. Procurement data
(a) Definitions.--In this section:
(1) Qualified hubzone small business concern.--The term
``qualified HUBZone small business concern'' has the meaning given
that term in section 3(p) of the Small Business Act (15 U.S.C.
632(p)).
(2) Small business concern owned and controlled by socially and
economically disadvantaged individuals.--The term ``small business
concern owned and controlled by socially and economically
disadvantaged individuals'' has the meaning given that term in
section 8(d) of the Small Business Act (15 U.S.C. 637(d)).
(3) Small business concern owned and controlled by women.--The
term ``small business concern owned and controlled by women'' has
the meaning given that term in section 8(d) of the Small Business
Act (15 U.S.C. 637(d)) and section 204 of the Women's Business
Ownership Act of 1988 (Public Law 100-533, 102 Stat. 2692).
(b) Reporting.--Each Federal agency shall report to the Office of
Federal Procurement Policy the number of qualified HUBZone small
business concerns, the number of small businesses owned and controlled
by women, and the number of small business concerns owned and
controlled by socially and economically disadvantaged individuals, by
gender, that are first time recipients of contracts from the agency.
The Office shall take appropriate action to ascertain, for each fiscal
year, the number of those small businesses that have newly entered the
Federal market.
CHAPTER 19--SIMPLIFIED ACQUISITION PROCEDURES
Sec.
1901. Simplified acquisition procedures.
1902. Procedures applicable to purchases below micro-purchase
threshold.
1903. Special emergency procurement authority.
1904. Certain transactions for defense against attack.
1905. List of laws inapplicable to contracts or subcontracts not
greater than simplified acquisition threshold.
1906. List of laws inapplicable to procurements of commercial items.
1907. List of laws inapplicable to procurements of commercially
available off-the-shelf items.
1908. Inflation adjustment of acquisition-related dollar thresholds.
Sec. 1901. Simplified acquisition procedures
(a) When Procedures Are To Be Used.--To promote efficiency and
economy in contracting and to avoid unnecessary burdens for agencies
and contractors, the Federal Acquisition Regulation shall provide for
special simplified procedures for purchases of property and services
for amounts--
(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 items.
(b) Prohibition on Dividing Purchases.--A proposed purchase or
contract for an amount above the simplified acquisition threshold may
not be divided into several purchases or contracts for lesser amounts
to use the simplified acquisition procedures required by subsection
(a).
(c) Promotion of Competition Required.--When using simplified
acquisition procedures, the head of an executive agency shall promote
competition to the maximum extent practicable.
(d) Consideration of Offers Timely Received.--The simplified
acquisition procedures contained in the Federal Acquisition Regulation
shall include a requirement that a contracting officer consider each
responsive offer timely received from an eligible offeror.
(e) Special Rules for Commercial Items.--The Federal Acquisition
Regulation shall provide that an executive agency using special
simplified procedures to purchase commercial items--
(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 2304(f) 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.
Sec. 1902. Procedures applicable to purchases below micro-purchase
threshold
(a) Definition.--For purposes of this section, the micro-purchase
threshold is $3,000.
(b) Compliance With Certain Requirements and Nonapplicability of
Certain Authority.--
(1) Compliance with certain requirements.--The head of each
executive agency shall ensure that procuring activities of that
agency, when awarding a contract with a price exceeding the micro-
purchase threshold, comply with the requirements of section 8(a) of
the Small Business Act (15 U.S.C. 637(a)), section 2323 of title
10, and section 7102 of the Federal Acquisition Streamlining Act of
1994 (Public Law 103-355, 15 U.S.C. 644 note).
(2) Nonapplicability of certain authority.--The authority under
part 13.106(a)(1) of the Federal Acquisition Regulation (48 C.F.R.
13.106(a)(1)), as in effect on November 18, 1993, to make purchases
without securing competitive quotations does not apply to a
purchase with a price exceeding the micro-purchase threshold.
(c) Nonapplicability of Certain Provisions.--An executive agency
purchase with an anticipated value of the micro-purchase threshold or
less is not subject to section 15(j) of the Small Business Act (15
U.S.C. 644(j)) and chapter 83 of this title.
(d) Purchases Without Competitive Quotations.--A purchase not greater
than $3,000 may be made without obtaining competitive quotations if an
employee of an executive agency or a member of the armed forces,
authorized to do so, determines that the price for the purchase is
reasonable.
(e) Equitable Distribution.--Purchases not greater than $3,000 shall
be distributed equitably among qualified suppliers.
(f) Implementation Through Federal Acquisition Regulation.--This
section shall be implemented through the Federal Acquisition
Regulation.
Sec. 1903. Special emergency procurement authority
(a) Applicability.--The authorities provided in subsections (b) and
(c) apply with respect to a procurement of property or services by or
for an executive agency that the head of the executive agency
determines are to be used--
(1) in support of a contingency operation (as defined in section
101(a) of title 10); or
(2) to facilitate the defense against or recovery from nuclear,
biological, chemical, or radiological attack against the United
States.
(b) Increased Thresholds and Limitation.--For a procurement to which
this section applies under subsection (a)--
(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) $250,000 in the case of a contract to be awarded and
performed, or purchase to be made, in the United States; and
(B) $1,000,000 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 2304(g)(1)(B) of title 10 is
deemed to be $10,000,000.
(c) Authority To Treat Property or Service as Commercial Item.--
(1) In general.--The head of an executive agency carrying out a
procurement of property or a service to which this section applies
under subsection (a)(2) may treat the property or service as a
commercial item for the purpose of carrying out the procurement.
(2) Certain contracts not exempt from standards or
requirements.--A contract in an amount of more than $15,000,000
that is awarded on a sole source basis for an item or service
treated as a commercial item under paragraph (1) is not exempt
from--
(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
section 2306a of title 10.
Sec. 1904. Certain transactions for defense against attack
(a) Authority.--
(1) In general.--The head of an executive agency that engages in
basic research, applied research, advanced research, and
development projects that are necessary to the responsibilities of
the executive agency in the field of research and development and
have the potential to facilitate defense against or recovery from
terrorism or nuclear, biological, chemical, or radiological attack
may exercise the same authority (subject to the same restrictions
and conditions) with respect to the research and projects as the
Secretary of Defense may exercise under section 2371 of title 10,
except for subsections (b) and (f) of section 2371.
(2) Prototype projects.--The head of an executive agency, under
the authority of paragraph (1), may carry out prototype projects
that meet the requirements of paragraph (1) in accordance with the
requirements and conditions provided for carrying out prototype
projects under section 845 of the National Defense Authorization
Act for Fiscal Year 1994 (Public Law 103-160, 10 U.S.C. 2371 note),
including that, to the maximum extent practicable, competitive
procedures shall be used when entering into agreements to carry out
projects under section 845(a) of that Act and that the period of
authority to carry out projects under section 845(a) of that Act
terminates as provided in section 845(i) of that Act.
(3) Application of requirements and conditions.--In applying the
requirements and conditions of section 845 of that Act under this
subsection--
(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) Applicability to selected executive agencies.--
(A) Office of management and budget.--The head of an
executive agency may exercise authority under this subsection
for a project only if authorized by the Director of the Office
of Management and Budget.
(B) Department of homeland security.--Authority under this
subsection does not apply to the Secretary of Homeland Security
while section 831 of the Homeland Security Act of 2002 (6
U.S.C. 391) is in effect.
(b) Regulations.--The Director of the Office of Management and Budget
shall prescribe regulations to carry out this section. No transaction
may be conducted under the authority of this section before the
regulations take effect.
(c) Annual Report.--The annual report of the head of an executive
agency that is required under section 2371(h) of title 10, as applied
to the head of the executive agency by subsection (a), shall be
submitted to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and Government
Reform of the House of Representatives.
(d) Termination of Authority.--The authority to carry out
transactions under subsection (a) terminates on September 30, 2008.
Sec. 1905. List of laws inapplicable to contracts or subcontracts not
greater than simplified acquisition threshold
(a) Definition.--In this section, the term ``Council'' has the
meaning given that term in section 1301 of this title.
(b) Inclusion in Federal Acquisition Regulation.--
(1) In general.--The Federal Acquisition Regulation shall include
a list of provisions of law that are inapplicable to contracts or
subcontracts in amounts not greater than the simplified acquisition
threshold. A provision of law properly included on the list
pursuant to paragraph (2) does not apply to contracts or
subcontracts in amounts not greater than the simplified acquisition
threshold that are made by an executive agency. This section does
not render a provision of law not included on the list inapplicable
to contracts and subcontracts in amounts not greater than the
simplified acquisition threshold.
(2) Laws enacted after october 13, 1994.--A provision of law
described in subsection (c) that is enacted after October 13, 1994,
shall be included on the list of inapplicable provisions of laws
required by paragraph (1) unless the Council makes a written
determination that it would not be in the best interest of the
Federal Government to exempt contracts or subcontracts in amounts
not greater than the simplified acquisition threshold from the
applicability of the provision.
(c) Covered Law.--A provision of law referred to in subsection (b)(2)
is a provision of law that the Council determines sets forth policies,
procedures, requirements, or restrictions for the procurement of
property or services by the Federal Government, except for a provision
of law that--
(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) Petition.--A person may petition the Administrator to take
appropriate action when a provision of law described in subsection (c)
is not included on the list of inapplicable provisions of law as
required by subsection (b) and the Council has not made a written
determination pursuant to subsection (b)(2). The Administrator shall
revise the Federal Acquisition Regulation to include the provision on
the list of inapplicable provisions of law unless the Council makes a
determination pursuant to subsection (b)(2) within 60 days after the
petition is received.
Sec. 1906. List of laws inapplicable to procurements of commercial
items
(a) Definition.--In this section, the term ``Council'' has the
meaning given that term in section 1301 of this title.
(b) Contracts.--
(1) Inclusion in federal acquisition regulation.--The Federal
Acquisition Regulation shall include a list of provisions of law
that are inapplicable to contracts for the procurement of
commercial items. A provision of law properly included on the list
pursuant to paragraph (2) does not apply to purchases of commercial
items by an executive agency. This section does not render a
provision of law not included on the list inapplicable to contracts
for the procurement of commercial items.
(2) Laws enacted after october 13, 1994.--A provision of law
described in subsection (d) that is enacted after October 13, 1994,
shall be included on the list of inapplicable provisions of law
required by paragraph (1) unless the Council makes a written
determination that it would not be in the best interest of the
Federal Government to exempt contracts for the procurement of
commercial items from the applicability of the provision.
(c) Subcontracts.--
(1) Definition.--In this subsection, the term ``subcontract''
includes a transfer of commercial items between divisions,
subsidiaries, or affiliates of a contractor or subcontractor.
(2) Inclusion in federal acquisition regulation.--The Federal
Acquisition Regulation shall include a list of provisions of law
that are inapplicable to subcontracts under a contract or
subcontract for the procurement of commercial items. A provision of
law properly included on the list pursuant to paragraph (3) does
not apply to those subcontracts. This section does not render a
provision of law not included on the list inapplicable to
subcontracts under a contract for the procurement of commercial
items.
(3) Provisions to be excluded from list.--A provision of law
described in subsection (d) shall be included on the list of
inapplicable provisions of law required by paragraph (2) unless the
Council makes a written determination that it would not be in the
best interest of the Federal Government to exempt subcontracts
under a contract for the procurement of commercial items from the
applicability of the provision.
(4) Waiver not authorized.--This subsection does not authorize
the waiver of the applicability of any provision of law with
respect to any subcontract under a contract with a prime contractor
reselling or distributing commercial items of another contractor
without adding value.
(d) Covered Law.--A provision of law referred to in subsections
(b)(2) and (c) is a provision of law that the Council determines sets
forth policies, procedures, requirements, or restrictions for the
procurement of property or services by the Federal Government, except
for a provision of law that--
(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 items.
(e) Petition.--A person may petition the Administrator to take
appropriate action when a provision of law described in subsection (d)
is not included on the list of inapplicable provisions of law as
required by subsection (b) or (c) and the Council has not made a
written determination pursuant to subsection (b)(2) or (c)(3). The
Administrator shall revise the Federal Acquisition Regulation to
include the provision on the list of inapplicable provisions of law
unless the Council makes a determination pursuant to subsection (b)(2)
or (c)(3) within 60 days after the petition is received.
Sec. 1907. List of laws inapplicable to procurements of commercially
available off-the-shelf items
(a) Inclusion in Federal Acquisition Regulation.--
(1) In general.--The Federal Acquisition Regulation shall include
a list of provisions of law that are inapplicable to contracts for
the procurement of commercially available off-the-shelf items. A
provision of law properly included on the list pursuant to
paragraph (2) does not apply to contracts for the procurement of
commercially available off-the-shelf items. This section does not
render a provision of law not included on the list inapplicable to
contracts for the procurement of commercially available off-the-
shelf items.
(2) Laws to be included.--A provision of law described in
subsection (b) shall be included on the list of inapplicable
provisions of law required by paragraph (1) unless the
Administrator makes a written determination that it would not be in
the best interest of the Federal Government to exempt contracts for
the procurement of commercially available off-the-shelf items from
the applicability of the provision.
(3) Other authorities or responsibilities not affected.--This
section does not modify, supersede, impair, or restrict authorities
or responsibilities under--
(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 2305(e) and (f) of title 10; or
(iii) sections 3706 and 3707 of this title.
(b) Covered Law.--Except as provided in subsection (a)(3), a
provision of law referred to in subsection (a)(1) is a provision of law
that the Administrator determines imposes Federal Government-unique
policies, procedures, requirements, or restrictions for the procurement
of property or services on persons whom the Federal Government has
awarded contracts for the procurement of commercially available off-
the-shelf items, except for a provision of law that--
(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.
Sec. 1908. Inflation adjustment of acquisition-related dollar
thresholds
(a) Definition.--In this section, the term ``Council'' has the
meaning given that term in section 1301 of this title.
(b) Application.--
(1) In general.--Except as provided in paragraph (2), the
requirement for adjustment under subsection (c) applies to a dollar
threshold that is specified in law as a factor in defining the
scope of the applicability of a policy, procedure, requirement, or
restriction provided in that law to the procurement of property or
services by an executive agency, as the Council determines.
(2) Exceptions.--Subsection (c) does not apply to dollar
thresholds--
(A) in chapter 67 of this title;
(B) in sections 3141 to 3144, 3146, and 3147 of title 40; or
(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.).
(3) Relationship to other inflation adjustment authorities.--This
section supersedes the applicability of other provisions of law
that provide for the adjustment of a dollar threshold that is
adjustable under this section.
(c) Requirement for Periodic Adjustment.--
(1) Baseline constant dollar value.--For purposes of paragraph
(2), the baseline constant dollar value for a dollar threshold--
(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) Adjustment.--On October 1 of each year evenly divisible by 5,
the Council shall adjust each acquisition-related dollar threshold
provided by law, as described in subsection (b)(1), to the baseline
constant dollar value of that threshold.
(3) Exclusive means of adjustment.--A dollar threshold adjustable
under this section shall be adjusted only as provided in this
section.
(d) Publication.--The Council shall publish a notice of the adjusted
dollar thresholds under this section in the Federal Register. The
thresholds take effect on the date of publication.
(e) Calculation.--An adjustment under this section shall be--
(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 on the day
before the adjustment 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; and
(D) $1,000,000 or more, to the nearest $500,000.
(f) Petition for Inclusion of Omitted Threshold.--
(1) Petition submitted to administrator.--A person may request
adjustment of a dollar threshold adjustable under this section that
is not included in a notice of adjustment published under
subsection (d) by submitting a petition for adjustment to the
Administrator.
(2) Actions of administrator.--On receipt of a petition for
adjustment of a dollar threshold under paragraph (1), the
Administrator--
(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) Effective date of adjustment by petition.--The adjustment of
a dollar threshold pursuant to a petition under this subsection
takes effect on the date the revised notice adding the adjustment
under paragraph (2)(B) is published.
CHAPTER 21--RESTRICTIONS ON OBTAINING AND DISCLOSING CERTAIN
INFORMATION
Sec.
2101. Definitions.
2102. Prohibitions on disclosing and obtaining procurement information.
2103. Actions required of procurement officers when contacted regarding
non-Federal employment.
2104. Prohibition on former official's acceptance of compensation from
contractor.
2105. Penalties and administrative actions.
2106. Reporting information believed to constitute evidence of offense.
2107. Savings provisions.
Sec. 2101. Definitions
In this chapter:
(1) Contracting officer.--The term ``contracting officer'' means
an individual who, by appointment in accordance with applicable
regulations, has the authority to enter into a Federal agency
procurement contract on behalf of the Government and to make
determinations and findings with respect to the contract.
(2) Contractor bid or proposal information.--The term
``contractor bid or proposal information'' means any of the
following information submitted to a Federal agency as part of, or
in connection with, a bid or proposal to enter into a Federal
agency procurement contract, if that information previously has not
been made available to the public or disclosed publicly:
(A) Cost or pricing data (as defined in section 2306a(h) 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) Federal agency.--The term ``Federal agency'' has the meaning
given that term in section 102 of title 40.
(4) Federal agency procurement.--The term ``Federal agency
procurement'' means the acquisition (by using competitive
procedures and awarding a contract) of goods or services (including
construction) from non-Federal sources by a Federal agency using
appropriated funds.
(5) Official.--The term ``official'' means--
(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) Protest.--The term ``protest'' means a written objection by
an interested party to the award or proposed award of a Federal
agency procurement contract, pursuant to subchapter V of chapter 35
of title 31.
(7) Source selection information.--The term ``source selection
information'' means any of the following information prepared for
use by a Federal agency to evaluate a bid or proposal to enter into
a Federal agency procurement contract, if that information
previously has not been made available to the public or disclosed
publicly:
(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.
Sec. 2102. Prohibitions on disclosing and obtaining procurement
information
(a) Prohibition on Disclosing Procurement Information.--
(1) In general.--Except as provided by law, a person described in
paragraph (3) shall not knowingly disclose contractor bid or
proposal information or source selection information before the
award of a Federal agency procurement contract to which the
information relates.
(2) Employee of private sector organization.--In addition to the
restriction in paragraph (1), an employee of a private sector
organization assigned to an agency under chapter 37 of title 5
shall not knowingly disclose contractor bid or proposal information
or source selection information during the 3-year period after the
employee's assignment ends, except as provided by law.
(3) Application.--Paragraph (1) applies to a person that--
(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) Prohibition on Obtaining Procurement Information.--Except as
provided by law, a person shall not knowingly obtain contractor bid or
proposal information or source selection information before the award
of a Federal agency procurement contract to which the information
relates.
Sec. 2103. Actions required of procurement officers when contacted
regarding non-Federal employment
(a) Actions Required.--An agency official participating personally
and substantially in a Federal agency procurement for a contract in
excess of the simplified acquisition threshold who contacts or is
contacted by a person that is a bidder or offeror in that Federal
agency procurement regarding possible non-Federal employment for that
official shall--
(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) Retention of Reports.--The agency shall retain each report
required by this section for not less than 2 years following the
submission of the report. The reports shall be made available to the
public on request, except that any part of a report that is exempt from
the disclosure requirements of section 552 of title 5 under subsection
(b)(1) of that section may be withheld from disclosure to the public.
(c) Persons Subject to Penalties.--The following are subject to the
penalties and administrative actions set forth in section 2105 of this
title:
(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).
Sec. 2104. Prohibition on former official's acceptance of compensation
from contractor
(a) Prohibition.--A former official of a Federal agency may not
accept compensation from a contractor as an employee, officer,
director, or consultant of the contractor within one year after the
official--
(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) When Compensation May Be Accepted.--Subsection (a) does not
prohibit a former official of a Federal agency from accepting
compensation from a division or affiliate of a contractor that does not
produce the same or similar products or services as the entity of the
contractor that is responsible for the contract referred to in
paragraph (1), (2), or (3) of subsection (a).
(c) Implementing Regulations.--Regulations implementing this section
shall include procedures for an official or former official of a
Federal agency to request advice from the appropriate designated agency
ethics official regarding whether the official or former official is or
would be precluded by this section from accepting compensation from a
particular contractor.
(d) Persons Subject to Penalties.--The following are subject to the
penalties and administrative actions set forth in section 2105 of this
title:
(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.
Sec. 2105. Penalties and administrative actions
(a) Criminal Penalties.--A person that violates section 2102 of this
title to exchange information covered by section 2102 of this title for
anything of value or to obtain or give a person a competitive advantage
in the award of a Federal agency procurement contract shall be fined
under title 18, imprisoned for not more than 5 years, or both.
(b) Civil Penalties.--The Attorney General may bring a civil action
in an appropriate district court of the United States against a person
that engages in conduct that violates section 2102, 2103, or 2104 of
this title. On proof of that conduct by a preponderance of the
evidence--
(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) Administrative Actions.--
(1) Types of action that federal agency may take.--A Federal
agency that receives information that a contractor or a person has
violated section 2102, 2103, or 2104 of this title shall consider
taking one or more of the following actions, as appropriate:
(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) Amount government entitled to recover.--When a Federal agency
rescinds a contract pursuant to paragraph (1)(B), the Federal
Government is entitled to recover, in addition to any penalty
prescribed by law, the amount expended under the contract.
(3) Present responsibility affected by conduct.--For purposes of
a suspension or debarment proceeding initiated pursuant to
paragraph (1)(C), engaging in conduct constituting an offense under
section 2102, 2103, or 2104 of this title affects the present
responsibility of a Federal Government contractor or subcontractor.
Sec. 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.
Sec. 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.
CHAPTER 23--MISCELLANEOUS
Sec.
2301. Use of electronic commerce in Federal procurement.
2302. Rights in technical data.
2303. Ethics safeguards related to contractor conflicts of interest.
2304. Conflict of interest standards for consultants.
2305. Authority of Director of Office of Management and Budget not
affected.
2306. Openness of meetings.
2307. Comptroller General's access to information.
2308. Modular contracting for information technology.
2309. Protection of constitutional rights of contractors.
2310. Performance-based contracts or task orders for services to be
treated as contracts for the procurement of commercial items.
2311. Enhanced transparency on interagency contracting and other
transactions.
2312. Contingency Contracting Corps.
2313. Database for Federal agency contract and grant officers and
suspension and debarment officials.
Sec. 2301. Use of electronic commerce in Federal procurement
(a) Definition.--For the purposes of this section, the term
``electronic commerce'' means electronic techniques for accomplishing
business transactions, including electronic mail or messaging, World
Wide Web technology, electronic bulletin boards, purchase cards,
electronic funds transfers, and electronic data interchange.
(b) Establishment, Maintenance, and Use of Electronic Commerce
Procedures and Processes.--The head of each executive agency, after
consulting with the Administrator, shall establish, maintain, and use,
to the maximum extent that is practicable and cost-effective,
procedures and processes that employ electronic commerce in the conduct
and administration of the procurement system of the agency.
(c) Applicable Standards.--In conducting electronic commerce, the
head of an executive agency shall apply nationally and internationally
recognized standards that broaden interoperability and ease the
electronic interchange of information.
(d) Requirements of Systems, Technologies, Procedures, and
Processes.--The head of each executive agency shall ensure that
systems, technologies, procedures, and processes established pursuant
to this section--
(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) Implementation.--In carrying out the requirements of this
section, the Administrator shall--
(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.
Sec. 2302. Rights in technical data
(a) Where Defined.--The legitimate proprietary interest of the
Federal Government and of a contractor in technical or other data shall
be defined in regulations prescribed as part of the Federal Acquisition
Regulation.
(b) General Extent of Regulations.--
(1) Other rights not impaired.--Regulations prescribed under
subsection (a) may not impair a right of the Federal Government or
of a contractor with respect to a patent or copyright or another
right in technical data otherwise established by law.
(2) Limitation on requiring data be provided to the government.--
With respect to executive agencies subject to division C,
regulations prescribed under subsection (a) shall provide that the
Federal Government may not require a person that has developed a
product (or process offered or to be offered for sale to the
public) to provide to the Federal Government technical data
relating to the design (or development or manufacture of the
product or process) as a condition of procurement by the Federal
Government of the product or process. This paragraph does not apply
to data that may be necessary for the Federal Government to operate
and maintain the product or use the process if the Federal
Government obtains it as an element of performance under the
contract.
(c) Technical Data Developed With Federal Funds.--
(1) Use by government and agencies.--Except as otherwise
expressly provided by Federal statute, with respect to executive
agencies subject to division C, regulations prescribed under
subsection (a) shall provide that--
(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) Requirements in addition to other rights of the government.--
The requirements of paragraph (1) are in addition to and not in
lieu of any other rights the Federal Government may have pursuant
to law.
(d) Factors To Be Considered in Prescribing Regulations.--The
following factors shall be considered in prescribing regulations under
subsection (a):
(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) Provisions Required in Contracts.--Regulations prescribed under
subsection (a) shall require that a contract for property or services
entered into by an executive agency contain appropriate provisions
relating to technical data, including provisions--
(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.
Sec. 2303. Ethics safeguards related to contractor conflicts of
interest
(a) Definition.--In this section, the term ``relevant acquisition
function'' means an acquisition function closely associated with
inherently governmental functions.
(b) Policy on Personal Conflicts of Interest by Contractor
Employees.--
(1) Development and issuance of policy.--The Administrator shall
develop and issue a standard policy to prevent personal conflicts
of interest by contractor employees performing relevant acquisition
functions (including the development, award, and administration of
Federal Government contracts) for or on behalf of a Federal agency
or department.
(2) Elements of policy.--The policy shall--
(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) Contract clause.--
(A) Contents.--The Administrator shall develop a personal
conflicts-of-interest clause or a set of clauses for inclusion
in solicitations and contracts (and task or delivery orders)
for the performance of relevant acquisition functions that sets
forth--
(i) the personal conflicts-of-interest policy developed
under this subsection; and
(ii) the contractor's responsibilities under the policy.
(B) Effective date.--Subparagraph (A) shall take effect 300
days after October 14, 2008, and shall apply to--
(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) Applicability.--
(A) Contracts in excess of the simplified acquisition
threshold.--This subsection shall apply to any contract for an
amount in excess of the simplified acquisition threshold (as
defined in section 134 of this title) if the contract is for
the performance of relevant acquisition functions.
(B) Partial applicability.--If only a portion of a contract
described in subparagraph (A) is for the performance of
relevant acquisition functions, then this subsection applies
only to that portion of the contract.
(c) Best Practices.--The Administrator shall, in consultation with
the Director of the Office of Government Ethics, develop and maintain a
repository of best practices relating to the prevention and mitigation
of organizational and personal conflicts of interest in Federal
contracting.
Sec. 2304. Conflict of interest standards for consultants
(a) Content of Regulations.--The Administrator shall prescribe under
this division Government-wide regulations that set forth--
(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) Services Subject to Regulations.--Regulations required by
subsection (a) apply to--
(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) Intelligence Activities Exemption.--
(1) Activities that may be exempt.--Intelligence activities as
defined in section 3.4(e) of Executive Order No. 12333 or a
comparable definitional section in any successor order may be
exempt from the regulations required by subsection (a).
(2) Report.--The Director of National Intelligence shall report
to the Intelligence and Appropriations Committees of Congress each
January 1, delineating the activities and organizations that have
been exempted under paragraph (1).
(d) Presidential Determination.--Before the regulations required by
subsection (a) are prescribed, the President shall determine if
prescribing the regulations will have a significantly adverse effect on
the accomplishment of the mission of the Defense Department or another
Federal agency. If the President determines that the regulations will
have such an adverse effect, the President shall so report to the
appropriate committees of the Senate and the House of Representatives,
stating in full the reasons for the determination. If such a report is
submitted, the requirement for the regulations shall be null and void.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 2308. Modular contracting for information technology
(a) Use.--To the maximum extent practicable, the head of an executive
agency should use modular contracting for an acquisition of a major
system of information technology.
(b) Modular Contracting Described.--Under modular contracting, an
executive agency's need for a system is satisfied in successive
acquisitions of interoperable increments. Each increment complies with
common or commercially accepted standards applicable to information
technology so that the increments are compatible with other increments
of information technology comprising the system.
(c) Provisions in Federal Acquisition Regulation.--The Federal
Acquisition Regulation shall provide that--
(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.
Sec. 2309. Protection of constitutional rights of contractors
(a) Prohibition on Requiring Waiver of Rights.--A contractor may not
be required, as a condition for entering into a contract with the
Federal Government, to waive a right under the Constitution for a
purpose relating to the Chemical Weapons Convention Implementation Act
of 1998 (22 U.S.C. 6701 et seq.) or the Chemical Weapons Convention (as
defined in section 3 of that Act (22 U.S.C. 6701)).
(b) Permissible Contract Clauses.--Subsection (a) does not prohibit
an executive agency from including in a contract a clause that requires
the contractor to permit inspections to ensure that the contractor is
performing the contract in accordance with the provisions of the
contract.
Sec. 2310. Performance-based contracts or task orders for services to
be treated as contracts for the procurement of commercial
items
(a) Criteria.--A performance-based contract for the procurement of
services entered into by an executive agency or a performance-based
task order for services issued by an executive agency may be treated as
a contract for the procurement of commercial items if--
(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) Regulations.--Regulations implementing this section shall require
agencies to collect and maintain reliable data sufficient to identify
the contracts or task orders treated as contracts for commercial items
using the authority of this section. The data may be collected using
the Federal Procurement Data System or other reporting mechanism.
(c) Report.--Not later than 2 years after November 24, 2003, the
Director of the Office of Management and Budget shall prepare and
submit to the Committees on Homeland Security and Governmental Affairs
and on Armed Services of the Senate and the Committees on Oversight and
Government Reform and on Armed Services of the House of Representatives
a report on the contracts or task orders treated as contracts for
commercial items using the authority of this section. The report shall
include data on the use of the authority, both government-wide and for
each department and agency.
(d) Expiration.--The authority under this section expires 10 years
after November 24, 2003.
Sec. 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 2371 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).
Sec. 2312. Contingency Contracting Corps
(a) Definition.--In this section, the term ``Corps'' means the
Contingency Contracting Corps established in subsection (b).
(b) Establishment.--The Administrator of General Services, pursuant
to policies established by the Office of Management and Budget, and in
consultation with the Secretary of Defense and the Secretary of
Homeland Security, shall establish a Government-wide Contingency
Contracting Corps.
(c) Function.--The members of the Corps shall be available for
deployment in responding to an emergency or major disaster, or a
contingency operation, both within or outside the continental United
States.
(d) Applicability.--The authorities provided in this section apply
with respect to any procurement of property or services by or for an
executive agency that, as determined by the head of the executive
agency, are to be used--
(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) Membership.--Membership in the Corps shall be voluntary and open
to all Federal employees and members of the Armed Forces who are
members of the Federal acquisition workforce.
(f) Education and Training.--The Administrator of General Services
may, in consultation with the Director of the Federal Acquisition
Institute and the Chief Acquisition Officers Council, establish
educational and training requirements for members of the Corps.
Education and training carried out pursuant to the requirements shall
be paid for from funds available in the acquisition workforce training
fund established pursuant to section 1703(i) of this title.
(g) Salary.--The salary for a member of the Corps shall be paid--
(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) Authority to Deploy the Corps.--
(1) Director of the Office of Management and Budget.--The
Director of the Office of Management and Budget shall have the
authority, upon request by an executive agency, to determine when
members of the Corps shall be deployed, with the concurrence of the
head of the agency or agencies employing the members to be
deployed.
(2) Secretary of Defense.--Nothing in this section shall preclude
the Secretary of Defense or the Secretary's designee from deploying
members of the Armed Forces or civilian personnel of the Department
of Defense in support of a contingency operation as defined in
section 101(a)(13) of title 10.
(i) Annual Report.--
(1) In general.--The Administrator of General Services shall
provide to the Committee on Homeland Security and Governmental
Affairs and the Committee on Armed Services of the Senate and the
Committee on Oversight and Government Reform and the Committee on
Armed Services of the House of Representatives an annual report on
the status of the Corps as of September 30 of each fiscal year.
(2) Content.--Each report under paragraph (1) shall include the
number of members of the Corps, the total cost of operating the
program, the number of deployments of members of the program, and
the performance of members of the program in deployment.
Sec. 2313. Database for Federal agency contract and grant officers and
suspension and debarment officials
(a) In General.--Subject to the authority, direction, and control of
the Director of the Office of Management and Budget, the Administrator
of General Services shall establish and maintain a database of
information regarding the integrity and performance of certain persons
awarded Federal agency contracts and grants for use by Federal agency
officials having authority over contracts and grants.
(b) Persons Covered.--The database shall cover the following:
(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) Information Included.--With respect to a covered person, the
database shall include information (in the form of a brief description)
for the most recent 5-year period regarding the following:
(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).
(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.
(d) Requirements Relating to Database Information.--
(1) Direct input and update.--The Administrator of General
Services shall design and maintain the database in a manner that
allows the appropriate Federal agency officials to directly input
and update information in the database relating to actions that the
officials have taken with regard to contractors or grant
recipients.
(2) Timeliness and accuracy.--The Administrator of General
Services shall develop policies to require--
(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.
(e) Use of Database.--
(1) Availability to government officials.--The Administrator of
General Services shall ensure that the information in the database
is available to appropriate acquisition officials of Federal
agencies, other government officials as the Administrator of
General Services determines appropriate, and, on request, the
Chairman and Ranking Member of the committees of Congress having
jurisdiction.
(2) Review and assessment of data.--
(A) In general.--Before awarding a contract or grant in
excess of the simplified acquisition threshold under section
134 of this title, the Federal agency official responsible for
awarding the contract or grant shall review the database and
consider all information in the database with regard to any
offer or proposal, and in the case of a contract, shall
consider other past performance information available with
respect to the offeror in making any responsibility
determination or past performance evaluation for the offeror.
(B) Documentation in contract file.--The contract file for
each contract of a Federal agency in excess of the simplified
acquisition threshold shall document the manner in which the
material in the database was considered in any responsibility
determination or past performance evaluation.
(f) Disclosure in Applications.--The Federal Acquisition Regulation
shall require that persons with Federal agency contracts and grants
valued in total greater than $10,000,000 shall--
(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) Rulemaking.--The Administrator of General Services shall
prescribe regulations that may be necessary to carry out this section.
Division C--Procurement
CHAPTER 31--GENERAL
Sec.
3101. Applicability.
3102. Delegation and assignment of powers, functions, and
responsibilities.
3103. Acquisition programs.
3104. Small business concerns.
3105. New contracts and grants and merit-based selection procedures.
3106. Erection, repair, or furnishing of public buildings and
improvements not authorized, and certain contracts not
permitted, by this division.
Sec. 3101. Applicability
(a) In General.--An executive agency shall make purchases and
contracts for property and services in accordance with this division
and implementing regulations of the Administrator of General Services.
(b) Simplified Acquisition Threshold and Procedures.--
(1) Simplified acquisition threshold.--
(A) Definition.--For purposes of an acquisition by an
executive agency, the simplified acquisition threshold is as
specified in section 134 of this title.
(B) Inapplicable laws.--A law properly listed in the Federal
Acquisition Regulation pursuant to section 1905 of this title
does not apply to or with respect to a contract or subcontract
that is not greater than the simplified acquisition threshold.
(2) Simplified acquisition procedures.--Simplified acquisition
procedures contained in the Federal Acquisition Regulation pursuant
to section 1901 of this title apply in executive agencies as
provided in section 1901.
(c) Exceptions.--
(1) In general.--This division does not apply--
(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) Applicability of certain laws related to advertising, opening
of bids, and length of contract.--Sections 6101, 6103, and 6304 of
this title do not apply to the procurement of property or services
made by an executive agency pursuant to this division. However,
when this division is made inapplicable by any law, sections 6101
and 6103 of this title apply in the absence of authority conferred
by statute to procure without advertising or without regard to
section 6101 of this title. A law that authorizes an executive
agency (other than an executive agency exempted from this division
by this subsection) to procure property or services without
advertising or without regard to section 6101 of this title is
deemed to authorize the procurement pursuant to the provisions of
this division relating to procedures other than sealed-bid
procedures.
Sec. 3102. Delegation and assignment of powers, functions, and
responsibilities
(a) In General.--Except to the extent expressly prohibited by another
law, the head of an executive agency may delegate to another officer or
official of that agency any power under this division.
(b) Procurements For or With Another Agency.--Subject to subsection
(a), to facilitate the procurement of property and services covered by
this division by an executive agency for another executive agency, and
to facilitate joint procurement by executive agencies--
(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.
Sec. 3103. Acquisition programs
(a) Congressional Policy.--It is the policy of Congress that the head
of each executive agency should achieve, on average, 90 percent of the
cost, performance, and schedule goals established for major acquisition
programs of the agency.
(b) Establishment of Goals.--
(1) By head of executive agency.--The head of each executive
agency shall approve or define the cost, performance, and schedule
goals for major acquisition programs of the agency.
(2) By chief financial officer.--The chief financial officer of
an executive agency shall evaluate the cost goals proposed for each
major acquisition program of the agency.
(c) Identification of Noncompliant Programs.--When it is necessary to
implement the policy set out in subsection (a), the head of an
executive agency shall--
(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.
Sec. 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.
Sec. 3105. New contracts and grants and merit-based selection
procedures
(a) Congressional Policy.--It is the policy of Congress that--
(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) New Contract and New Grant Described.--For purposes of this
section--
(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) Requirements for Awarding New Contract or New Grant.--A provision
of law may not be construed as requiring a new contract or a new grant
to be awarded to a specified non-Federal Government entity unless the
provision of law specifically--
(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) Exception.--This section does not apply to a contract or grant
that calls on the National Academy of Sciences to investigate, examine,
or experiment on a subject of science or art of significance to an
executive agency and to report on those matters to Congress or an
agency of the Federal Government.
Sec. 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.
CHAPTER 33--PLANNING AND SOLICITATION
Sec.
3301. Full and open competition.
3302. Requirements for purchase of property and services pursuant to
multiple award contracts.
3303. Exclusion of particular source or restriction of solicitation to
small business concerns.
3304. Use of noncompetitive procedures.
3305. Simplified procedures for small purchases.
3306. Planning and solicitation requirements.
3307. Preference for commercial items.
3308. Planning for future competition in contracts for major systems.
3309. Design-build selection procedures.
3310. Quantities to order.
3311. Qualification requirement.
Sec. 3301. Full and open competition
(a) In General.--Except as provided in sections 3303, 3304(a), and
3305 of this title and except in the case of procurement procedures
otherwise expressly authorized by statute, an executive agency in
conducting a procurement for property or services shall--
(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) Appropriate Competitive Procedures.--
(1) Use of sealed bids.--In determining the competitive
procedures appropriate under the circumstance, an executive agency
shall--
(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) Sealed bid not required.--Paragraph (1)(A) does not require
the use of sealed-bid procedures in cases in which section 204(e)
of title 23 applies.
(c) Efficient Fulfillment of Government Requirements.--The Federal
Acquisition Regulation shall ensure that the requirement to obtain full
and open competition is implemented in a manner that is consistent with
the need to efficiently fulfill the Federal Government's requirements.
Sec. 3302. Requirements for purchase of property and services pursuant
to multiple award contracts
(a) Definitions.--In this section:
(1) Executive agency.-- The term ``executive agency'' has the
same meaning given in section 133 of this title.
(2) Individual purchase.--The term ``individual purchase'' means
a task order, delivery order, or other purchase.
(3) Multiple award contract.--The term ``multiple award
contract'' means--
(A) a contract that is entered into by the Administrator of
General Services under the multiple award schedule program
referred to in section 2302(2)(C) of title 10;
(B) a multiple award task order contract that is entered into
under the authority of sections 2304a to 2304d 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) Sole source task or delivery order.--The term ``sole source
task or delivery order'' means any order that does not follow the
competitive procedures in paragraph (2) or (3) of subsection (c).
(b) Regulations Required.--The Federal Acquisition Regulation shall
require enhanced competition in the purchase of property and services
by all executive agencies pursuant to multiple award contracts.
(c) Content of Regulations.--
(1) In general.--The regulations required by subsection (b) shall
provide that each individual purchase of property or services in
excess of the simplified acquisition threshold that is made under a
multiple award contract shall be made on a competitive basis unless
a contracting officer--
(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 2304c(b)
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) Competitive basis procedures.--For purposes of this
subsection, an individual purchase of property or services is made
on a competitive basis only if it is made pursuant to procedures
that--
(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) Exception to notice requirement.--
(A) In general.--Notwithstanding paragraph (2), and subject
to subparagraph (B), notice may be provided to fewer than all
contractors offering the property or services under a multiple
award contract as described in subsection (a)(3)(A) if notice
is provided to as many contractors as practicable.
(B) Limitation on exception.--A purchase may not be made
pursuant to a notice that is provided to fewer than all
contractors under subparagraph (A) unless--
(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) Public Notice Requirements Related to Sole Source Task or
Delivery Orders.--
(1) Public notice required.--The Federal Acquisition Regulation
shall require the head of each executive agency to--
(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 2304(f)(1) of title 10 and section
3304(e)(1) of this title, except in the event of extraordinary
circumstances or classified orders.
(2) Exemption.--This subsection does not require the public
availability of information that is exempt from public disclosure
under section 552(b) of title 5.
(e) Applicability.--The regulations required by subsection (b) shall
apply to all individual purchases of property or services that are made
under multiple award contracts on or after the effective date of the
regulations, without regard to whether the multiple award contracts
were entered into before, on, or after the effective date.
Sec. 3303. Exclusion of particular source or restriction of
solicitation to small business concerns
(a) Exclusion of Particular Source.--
(1) Criteria for exclusion.--An executive agency may provide for
the procurement of property or services covered by section 3301 of
this title using competitive procedures but excluding a particular
source to establish or maintain an alternative source of supply for
that property or service if the agency head determines that to do
so would--
(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) Determination for class disallowed.--A determination under
paragraph (1) may not be made for a class of purchases or
contracts.
(b) Exclusion of Other Than Small Business Concerns.--An executive
agency may provide for the procurement of property or services covered
by section 3301 of this title using competitive procedures, but
excluding other than small business concerns in furtherance of sections
9 and 15 of the Small Business Act (15 U.S.C. 638, 644).
(c) Nonapplication of Justification and Approval Requirements.--A
contract awarded pursuant to the competitive procedures referred to in
subsections (a) and (b) is not subject to the justification and
approval required by section 3304(e)(1) of this title.
Sec. 3304. Use of noncompetitive procedures
(a) When Noncompetitive Procedures May Be Used.--An executive agency
may use procedures other than competitive procedures only when--
(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 item 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) Property or Services Deemed Available From Only One Source.--For
the purposes of subsection (a)(1), in the case of--
(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) Property or Services Needed With Unusual and Compelling
Urgency.--
(1) Allowable contract period.--The contract period of a contract
described in paragraph (2) that is entered into by an executive
agency pursuant to the authority provided under subsection (a)(2)--
(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) Applicability of allowable contract period.--This subsection
applies to any contract in an amount greater than the simplified
acquisition threshold.
(d) Offer Requests to Potential Sources.--An executive agency using
procedures other than competitive procedures to procure property or
services by reason of the application of paragraph (2) or (6) of
subsection (a) shall request offers from as many potential sources as
is practicable under the circumstances.
(e) Justification for Use of Noncompetitive Procedures.--
(1) Prerequisites for awarding contract.--Except as provided in
paragraphs (3) and (4), an executive agency may not award a
contract using procedures other than competitive procedures
unless--
(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) Elements of justification.--The justification required by
paragraph (1)(A) shall include--
(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) Justification allowed after contract awarded.--In the case of
a procurement permitted by subsection (a)(2), the justification and
approval required by paragraph (1) may be made after the contract
is awarded.
(4) Justification not required.--The justification and approval
required by paragraph (1) are not required if--
(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 item 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) Restrictions on executive agencies.--
(A) Contracts and procurement of property or services.--In no
case may an executive agency--
(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) Additional restriction.--The restriction set out in
subparagraph (A)(ii) is in addition to any other restriction
provided by law.
(f) Public Availability of Justification and Approval Required for
Using Noncompetitive Procedures.--
(1) Time requirement.--
(A) Within 14 days after contract award.--Except as provided
in subparagraph (B), in the case of a procurement permitted by
subsection (a), the head of an executive agency shall make
publicly available, within 14 days after the award of the
contract, the documents containing the justification and
approval required by subsection (e)(1) with respect to the
procurement.
(B) Within 30 days after contract award.--In the case of a
procurement permitted by subsection (a)(2), subparagraph (A)
shall be applied by substituting ``30 days'' for ``14 days''.
(2) Availability on websites.--The documents referred to in
subparagraph (A) of paragraph (1) shall be made available on the
website of the agency and through a Government-wide website
selected by the Administrator.
(3) Exception to availability and approval requirement.--This
subsection does not require the public availability of information
that is exempt from public disclosure under section 552(b) of title
5.
Sec. 3305. Simplified procedures for small purchases
(a) Authorization.--To promote efficiency and economy in contracting
and to avoid unnecessary burdens for agencies and contractors, the
Federal Acquisition Regulation shall provide for special simplified
procedures for purchases of property and services for amounts--
(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 items.
(b) Leasehold Interests in Real Property.--The Administrator of
General Services shall prescribe regulations that provide special
simplified procedures for acquisitions of leasehold interests in real
property at rental rates that do not exceed the simplified acquisition
threshold. The rental rate under a multiyear lease does not exceed the
simplified acquisition threshold if the average annual amount of the
rent payable for the period of the lease does not exceed the simplified
acquisition threshold.
(c) Prohibition on Dividing Contracts.--A proposed purchase or
contract for an amount above the simplified acquisition threshold may
not be divided into several purchases or contracts for lesser amounts
to use the simplified procedures required by subsection (a).
(d) Promotion of Competition.--In using the simplified procedures, an
executive agency shall promote competition to the maximum extent
practicable.
(e) Compliance With Special Requirements of Federal Acquisition
Regulation.--An executive agency shall comply with the Federal
Acquisition Regulation provisions referred to in section 1901(e) of
this title.
Sec. 3306. Planning and solicitation requirements
(a) Planning and Specifications.--
(1) Preparing for procurement.--In preparing for the procurement
of property or services, an executive agency shall--
(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) Requirements of specifications.--Each solicitation under this
division shall include specifications that--
(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) Types of specifications.--For the purposes of paragraphs (1)
and (2), the type of specification included in a solicitation shall
depend on the nature of the needs of the executive agency and the
market available to satisfy those needs. Subject to those needs,
specifications may be stated in terms of--
(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) Contents of Solicitation.--In addition to the specifications
described in subsection (a), each solicitation for sealed bids or
competitive proposals (other than for a procurement for commercial
items using special simplified procedures or a purchase for an amount
not greater than the simplified acquisition threshold) shall at a
minimum include--
(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) Evaluation Factors.--
(1) In general.--In prescribing the evaluation factors to be
included in each solicitation for competitive proposals, an
executive agency shall--
(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) include cost or price to the Federal Government as an
evaluation factor that must be considered in the evaluation of
proposals; and
(C) 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) Restriction on implementing regulations.--Regulations
implementing paragraph (1)(C) may not define the terms
``significantly more important'' and ``significantly less
important'' as specific numeric weights that would be applied
uniformly to all solicitations or a class of solicitations.
(d) Additional Information in Solicitation.--This section does not
prohibit an executive agency from--
(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) Limitation on Evaluation of Purchase Options.--An executive
agency, in issuing a solicitation for a contract to be awarded using
sealed bid procedures, may not include in the solicitation a clause
providing for the evaluation of prices for options to purchase
additional property or services under the contract unless the executive
agency has determined that there is a reasonable likelihood that the
options will be exercised.
(f) Authorization of Telecommuting for Federal Contractors.--
(1) Definition.--In this subsection, the term ``executive
agency'' has the meaning given that term in section 133 of this
title.
(2) Federal acquisition regulation to allow telecommuting.--The
Federal Acquisition Regulation issued in accordance with sections
1121(b) and 1303(a)(1) of this title shall permit telecommuting by
employees of Federal Government contractors in the performance of
contracts entered into with executive agencies.
(3) Scope of allowance.--The Federal Acquisition Regulation at a
minimum shall provide that a solicitation for the acquisition of
property or services may not set forth any requirement or
evaluation criteria that would--
(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.
Sec. 3307. Preference for commercial items
(a) Relationship of Provisions of Law to Procurement of Commercial
Items.--
(1) This division.--Unless otherwise specifically provided, all
other provisions in this division also apply to the procurement of
commercial items.
(2) Laws listed in federal acquisition regulation.--A contract
for the procurement of a commercial item entered into by the head
of an executive agency is not subject to a law properly listed in
the Federal Acquisition Regulation pursuant to section 1906 of this
title.
(b) Preference.--The head of each executive agency shall ensure that,
to the maximum extent practicable--
(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 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 may be procured to fulfill those requirements; and
(3) offerors of commercial items and nondevelopmental items other
than commercial items are provided an opportunity to compete in any
procurement to fill those requirements.
(c) Implementation.--The head of each executive agency shall ensure
that procurement officials in that executive agency, to the maximum
extent practicable--
(1) acquire commercial items or nondevelopmental items other than
commercial items 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 items or nondevelopmental items other than commercial
items 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 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;
(4) state specifications in terms that enable and encourage
bidders and offerors to supply 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 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 items; and
(6) require training of appropriate personnel in the acquisition
of commercial items.
(d) Market Research.--
(1) When to be used.--The head of an executive agency shall
conduct market research appropriate to the circumstances--
(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) Use of results.--The head of an executive agency shall use
the results of market research to determine whether 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 are available that--
(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) Only minimum information required to be submitted.--In
conducting market research, the head of an executive agency should
not require potential sources to submit more than the minimum
information that is necessary to make the determinations required
in paragraph (2).
(e) Regulations.--
(1) In general.--The Federal Acquisition Regulation shall provide
regulations to implement this section, sections 102, 103, 105, and
110 of this title, and chapter 140 of title 10.
(2) Contract clauses.--
(A) Definition.--In this paragraph, the term ``subcontract''
includes a transfer of commercial items between divisions,
subsidiaries, or affiliates of a contractor or subcontractor.
(B) List of clauses to be included.--The regulations
prescribed under paragraph (1) shall contain a list of contract
clauses to be included in contracts for the acquisition of
commercial end items. To the maximum extent practicable, the
list shall include only those contract clauses that are--
(i) required to implement provisions of law or executive
orders applicable to acquisitions of commercial items or
commercial components; or
(ii) determined to be consistent with standard commercial
practice.
(C) Requirements of prime contractor.--The regulations shall
provide that the Federal Government shall not require a prime
contractor to apply to any of its divisions, subsidiaries,
affiliates, subcontractors, or suppliers that are furnishing
commercial items any contract clause except those that are--
(i) required to implement provisions of law or executive
orders applicable to subcontractors furnishing commercial
items or commercial components; or
(ii) determined to be consistent with standard commercial
practice.
(D) Clauses that may be used in a contract.--To the maximum
extent practicable, only the contract clauses listed pursuant
to subparagraph (B) may be used in a contract, and only the
contract clauses referred to in subparagraph (C) may be
required to be used in a subcontract, for the acquisition of
commercial items or commercial components by or for an
executive agency.
(E) Waiver of contract clauses.--The Federal Acquisition
Regulation shall provide standards and procedures for waiving
the use of contract clauses required pursuant to subparagraph
(B), other than those required by law, including standards for
determining the cases in which a waiver is appropriate.
(3) Market acceptance.--
(A) Requirement of offerors.--The Federal Acquisition
Regulation shall provide that under appropriate conditions the
head of an executive agency may require offerors to demonstrate
that the items offered--
(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) Regulation to provide guidance on criteria.--The Federal
Acquisition Regulation shall provide guidance to ensure that
the criteria for determining commercial market acceptance
include the consideration of--
(i) the minimum needs of the executive agency concerned;
and
(ii) the entire relevant commercial market, including
small businesses.
(4) Provisions relating to types of contracts.--
(A) Types of contracts that may be used.--The Federal
Acquisition Regulation shall include, for acquisitions of
commercial items--
(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) When time-and-materials or labor-hour contract may be
used.--A time-and-materials or labor-hour contract may be used
pursuant to the authority referred to in subparagraph
(A)(iii)--
(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) Categories of commercial services.--The categories of
commercial services referred to in subparagraph (B) are as
follows:
(i) Commercial services procured for support of a
commercial item, as described in section 103(5) 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) Contract quality requirements.--Regulations prescribed under
paragraph (1) shall include provisions that--
(A) allow, to the maximum extent practicable, a contractor
under a commercial items 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 items
before the contractor's tender of those items 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 items
and use those warranties for the repair and replacement of
commercial items; and
(C) set forth guidance regarding the use of past performance
of commercial items and sources as a factor in contract award
decisions.
Sec. 3308. Planning for future competition in contracts for major
systems
(a) Development Contract.--
(1) Determining whether proposals are necessary.--In preparing a
solicitation for the award of a development contract for a major
system, the head of an agency shall consider requiring in the
solicitation that an offeror include in its offer proposals
described in paragraph (2). In determining whether to require the
proposals, the head of the agency shall consider the purposes for
which the system is being procured and the technology necessary to
meet the system's required capabilities. If the proposals are
required, the head of the agency shall consider them in evaluating
the offeror's price.
(2) Contents of proposals.--The proposals that the head of an
agency is to consider requiring in a solicitation for the award of
a development contract are the following:
(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) Production Contract.--
(1) Determining whether proposals are necessary.--In preparing a
solicitation for the award of a production contract for a major
system, the head of an agency shall consider requiring in the
solicitation that an offeror include in its offer proposals
described in paragraph (2). In determining whether to require the
proposals, the head of the agency shall consider the purposes for
which the system is being procured and the technology necessary to
meet the system's required capabilities. If the proposals are
required, the head of the agency shall consider them in evaluating
the offeror's price.
(2) Content of proposals.--The proposals that the head of an
agency is to consider requiring in a solicitation for the award of
a production contract are proposals identifying opportunities to
ensure that the Federal Government will be able to obtain on a
competitive basis items procured in connection with the system that
are likely to be reprocured in substantial quantities during the
service life of the system. Proposals submitted in response to this
requirement may include the following:
(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) Consideration of Factors as Objectives in Negotiations.--If the
head of an agency is making a noncompetitive award of a development
contract or a production contract for a major system, the factors
specified in subsections (a) and (b) to be considered in evaluating an
offer for a contract may be considered as objectives in negotiating the
contract to be awarded.
Sec. 3309. Design-build selection procedures
(a) Authorization.--Unless the traditional acquisition approach of
design-bid-build established under sections 1101 to 1104 of title 40 or
another acquisition procedure authorized by law is used, the head of an
executive agency shall use the two-phase selection procedures
authorized in this section for entering into a contract for the design
and construction of a public building, facility, or work when a
determination is made under subsection (b) that the procedures are
appropriate for use.
(b) Criteria for Use.--A contracting officer shall make a
determination whether two-phase selection procedures are appropriate
for use for entering into a contract for the design and construction of
a public building, facility, or work when--
(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) Procedures Described.--Two-phase selection procedures consist of
the following:
(1) Development of scope of work statement.--The agency develops,
either in-house or by contract, a scope of work statement for
inclusion in the solicitation that defines the project and provides
prospective offerors with sufficient information regarding the
Federal Government's requirements (which may include criteria and
preliminary design, budget parameters, and schedule or delivery
requirements) to enable the offerors to submit proposals that meet
the Federal Government's needs. If the agency contracts for
development of the scope of work statement, the agency shall
contract for architectural and engineering services as defined by
and in accordance with sections 1101 to 1104 of title 40.
(2) Solicitation of phase-one proposals.--The contracting officer
solicits phase-one proposals that--
(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) Evaluation factors.--The evaluation factors to be used in
evaluating phase-one proposals are stated in the solicitation and
include specialized experience and technical competence, capability
to perform, past performance of the offeror's team (including the
architect-engineer and construction members of the team), and other
appropriate factors, except that cost-related or price-related
evaluation factors are not permitted. Each solicitation establishes
the relative importance assigned to the evaluation factors and
subfactors that must be considered in the evaluation of phase-one
proposals. The agency evaluates phase-one proposals on the basis of
the phase-one evaluation factors set forth in the solicitation.
(4) Selection by contracting officer.--
(A) Number of offerors selected and what is to be
evaluated.--The contracting officer selects as the most highly
qualified the number of offerors specified in the solicitation
to provide the property or services under the contract and
requests the selected offerors to submit phase-two competitive
proposals that include technical proposals and cost or price
information. Each solicitation establishes with respect to
phase two--
(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) Separate evaluations.--The contracting officer separately
evaluates the submissions described in clauses (i) and (ii) of
subparagraph (A).
(5) Awarding of contract.--The agency awards the contract in
accordance with chapter 37 of this title.
(d) Solicitation To State Number of Offerors To Be Selected for
Phase-Two Requests for Competitive Proposals.--A solicitation issued
pursuant to the procedures described in subsection (c) shall state the
maximum number of offerors that are to be selected to submit
competitive proposals pursuant to subsection (c)(4). The maximum number
specified in the solicitation shall not exceed 5 unless the agency
determines with respect to an individual solicitation that a specified
number greater than 5 is in the Federal Government's interest and is
consistent with the purposes and objectives of the two-phase selection
process.
(e) Requirement for Guidance and Regulations.--The Federal
Acquisition Regulation shall include guidance--
(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.
Sec. 3310. Quantities to order
(a) Factors Affecting Quantity To Order.--Each executive agency shall
procure supplies in a quantity that--
(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) Offeror's Opinion of Quantity.--Each solicitation for a contract
for supplies shall, if practicable, include a provision inviting each
offeror responding to the solicitation to state an opinion on whether
the quantity of supplies proposed to be procured is economically
advantageous to the Federal Government and, if applicable, to recommend
a quantity that would be more economically advantageous to the Federal
Government. Each recommendation shall include a quotation of the total
price and the unit price for supplies procured in each recommended
quantity.
Sec. 3311. Qualification requirement
(a) Definition.--In this section, the term ``qualification
requirement'' means a requirement for testing or other quality
assurance demonstration that must be completed by an offeror before
award of a contract.
(b) Actions Before Enforcing Qualification Requirement.--Except as
provided in subsection (c), the head of an agency, before enforcing any
qualification requirement, shall--
(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) Applicability, Waiver Authority, and Referral of Offers.--
(1) Applicability.--Subsection (b) does not apply to a
qualification requirement established by statute prior to October
30, 1984.
(2) Waiver authority.--
(A) Submission of determination of unreasonableness.--Except
as provided in subparagraph (C), if it is unreasonable to
specify the standards for qualification that a prospective
offeror or its product must satisfy, a determination to that
effect shall be submitted to the advocate for competition of
the procuring activity responsible for the purchase of the item
subject to the qualification requirement.
(B) Authority to grant waiver.--After considering any
comments of the advocate for competition reviewing the
determination, the head of the procuring activity may waive the
requirements of paragraphs (2) to (5) of subsection (b) for up
to 2 years with respect to the item subject to the
qualification requirement.
(C) Nonapplicability to qualified products list.--Waiver
authority under this paragraph does not apply with respect to a
qualified products list.
(3) Submission and consideration of offer not to be denied.--A
potential offeror may not be denied the opportunity to submit and
have considered an offer for a contract solely because the
potential offeror has not been identified as meeting a
qualification requirement if the potential offeror can demonstrate
to the satisfaction of the contracting officer that the potential
offeror or its product meets the standards established for
qualification or can meet those standards before the date specified
for award of the contract.
(4) Referral to small business administration not required.--This
subsection does not require the referral of an offer to the Small
Business Administration pursuant to section 8(b)(7) of the Small
Business Act (15 U.S.C. 637(b)(7)) if the basis for the referral is
a challenge by the offeror to either the validity of the
qualification requirement or the offeror's compliance with that
requirement.
(5) Delay of procurement not required.--The head of an agency
need not delay a proposed procurement to comply with subsection (b)
or to provide a potential offeror with an opportunity to
demonstrate its ability to meet the standards specified for
qualification.
(d) Fewer Than 2 Actual Manufacturers.--
(1) Solicitation and testing of additional sources or products.--
If the number of qualified sources or qualified products available
to compete actively for an anticipated future requirement is fewer
than 2 actual manufacturers or the products of 2 actual
manufacturers, respectively, the head of the agency concerned
shall--
(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) When agency may bear cost.--The head of the agency concerned
may bear the cost under paragraph (1)(B) only if the head of the
agency determines that the additional qualified sources or products
are likely to result in cost savings from increased competition for
future requirements sufficient to offset (within a reasonable
period of time considering the duration and dollar value of
anticipated future requirements) the cost incurred by the agency.
(3) Certification required.--The head of the agency shall require
a prospective contractor requesting the Federal Government to bear
testing and evaluation costs under paragraph (1)(B) to certify its
status as a small business concern under section 3 of the Small
Business Act (15 U.S.C. 632).
(e) Examination and Revalidation of Qualification Requirement.--
Within 7 years after the establishment of a qualification requirement,
the need for the requirement shall be examined and the standards of the
requirement revalidated in accordance with the requirements of
subsection (b). This subsection does not apply in the case of a
qualification requirement for which a waiver is in effect under
subsection (c)(2).
(f) When Enforcement of Qualification Requirement Not Allowed.--
Except in an emergency as determined by the head of the agency, after
the head of the agency determines not to enforce a qualification
requirement for a solicitation, the agency may not enforce the
requirement unless the agency complies with the requirements of
subsection (b).
CHAPTER 35--TRUTHFUL COST OR PRICING DATA
Sec.
3501. General.
3502. Required cost or pricing data and certification.
3503. Exceptions.
3504. Cost or pricing data on below-threshold contracts.
3505. Submission of other information.
3506. Price reductions for defective cost or pricing data.
3507. Interest and penalties for certain overpayments.
3508. Right to examine contractor records.
3509. Notification of violations of Federal criminal law or
overpayments.
Sec. 3501. General
(a) Definitions.--In this chapter:
(1) Commercial item.--The term ``commercial item'' has the
meaning provided the term by section 103 of this title.
(2) Cost or pricing data.--The term ``cost or pricing data''
means all facts that, as of the date of agreement on the price of a
contract (or the price of a contract modification) or, if
applicable consistent with section 3506(a)(2) of this title,
another date agreed upon between the parties, a prudent buyer or
seller would reasonably expect to affect price negotiations
significantly. The term does not include information that is
judgmental, but does include factual information from which a
judgment was derived.
(3) Subcontract.--The term ``subcontract'' includes a transfer of
commercial items between divisions, subsidiaries, or affiliates of
a contractor or a subcontractor.
(b) Regulations.--
(1) Minimizing abuse of commercial services item authority.--The
Federal Acquisition Regulation shall ensure that services that are
not offered and sold competitively in substantial quantities in the
commercial marketplace, but are of a type offered and sold
competitively in substantial quantities in the commercial
marketplace, may be treated as commercial items for purposes of
this chapter only if the contracting officer determines in writing
that the offeror has submitted sufficient information to evaluate,
through price analysis, the reasonableness of the price for the
services.
(2) Information to submit.--To the extent necessary to make a
determination under paragraph (1), the contracting officer may
request the offeror to submit--
(A) prices paid for the same or similar commercial items
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.
Sec. 3502. Required cost or pricing data and certification
(a) When Required.--The head of an executive agency shall require
offerors, contractors, and subcontractors to make cost or pricing data
available as follows:
(1) Offeror for prime contract.--An offeror for a prime contract
under this division to be entered into using procedures other than
sealed-bid procedures shall be required to submit cost or pricing
data before the award of a contract if--
(A) in the case of a prime contract entered into after
October 13, 1994, the price of the contract to the Federal
Government is expected to exceed $500,000; and
(B) in the case of a prime contract entered into on or before
October 13, 1994, the price of the contract to the Federal
Government is expected to exceed $100,000.
(2) Contractor.--The contractor for a prime contract under this
division shall be required to submit cost or pricing data before
the pricing of a change or modification to the contract if--
(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 $500,000;
(B) in the case of a change or modification made to a prime
contract that was entered into on or before October 13, 1994,
and that has been modified pursuant to subsection (f), the
price adjustment is expected to exceed $500,000; and
(C) in the case of a change or modification not covered by
subparagraph (A) or (B), the price adjustment is expected to
exceed $100,000.
(3) Offeror for subcontract.--An offeror for a subcontract (at
any tier) of a contract under this division shall be required to
submit cost or pricing data before the award of the subcontract if
the prime contractor and each higher-tier subcontractor have been
required to make available cost or pricing data under this chapter
and--
(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 $500,000;
(B) in the case of a subcontract entered into under a prime
contract that was entered into on or before October 13, 1994,
and that has been modified pursuant to subsection (f), the
price of the subcontract is expected to exceed $500,000; and
(C) in the case of a subcontract not covered by subparagraph
(A) or (B), the price of the subcontract is expected to exceed
$100,000.
(4) Subcontractor.--The subcontractor for a subcontract covered
by paragraph (3) shall be required to submit cost or pricing data
before the pricing of a change or modification to the subcontract
if--
(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 $500,000; 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 $100,000.
(b) Certification.--A person required, as an offeror, contractor, or
subcontractor, to submit cost or pricing data under subsection (a) (or
required by the head of the procuring activity concerned to submit the
data under section 3504 of this title) shall be required to certify
that, to the best of the person's knowledge and belief, the cost or
pricing data submitted are accurate, complete, and current.
(c) To Whom Submitted.--Cost or pricing data required to be submitted
under subsection (a) (or under section 3504 of this title), and a
certification required to be submitted under subsection (b), shall be
submitted--
(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) Application of Chapter.--Except as provided under section 3503 of
this title, this chapter applies to contracts entered into by the head
of an executive agency on behalf of a foreign government.
(e) Subcontracts Not Affected by Waiver.--A waiver of requirements
for submission of certified cost or pricing data that is granted under
section 3503(a)(3) of this title in the case of a contract or
subcontract does not waive the requirement under subsection (a)(3) of
this section for submission of cost or pricing data in the case of
subcontracts under that contract or subcontract unless the head of the
procuring activity granting the waiver determines that the requirement
under subsection (a)(3) of this section should be waived in the case of
those subcontracts and justifies in writing the reason for the
determination.
(f) Modifications to Prior Contracts.--On the request of a contractor
that was required to submit cost or pricing data under subsection (a)
in connection with a prime contract entered into on or before October
13, 1994, the head of the executive agency that entered into the
contract shall modify the contract to reflect paragraphs (2)(B) and
(3)(B) of subsection (a). All those modifications shall be made without
requiring consideration.
(g) Adjustment of Amounts.--Effective on October 1 of each year that
is divisible by 5, each amount set forth in subsection (a) shall be
adjusted 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.
Sec. 3503. Exceptions
(a) In General.--Submission of certified cost or pricing data shall
not be required under section 3502 of this title in the case of a
contract, a subcontract, or a modification of a contract or
subcontract--
(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 item; 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) Modifications of Contracts and Subcontracts for Commercial
Items.--In the case of a modification of a contract or subcontract for
a commercial item that is not covered by the exception to the
submission of certified cost or pricing data in paragraph (1) or (2) of
subsection (a), submission of certified cost or pricing data shall not
be required under section 3502 of this title if--
(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
item to a contract or subcontract for the acquisition of an item
other than a commercial item.
Sec. 3504. Cost or pricing data on below-threshold contracts
(a) Authority To Require Submission.--Subject to subsection (b), when
certified cost or pricing data are not required to be submitted by
section 3502 of this title for a contract, subcontract, or modification
of a contract or subcontract, the data may nevertheless be required to
be submitted by the head of the procuring activity, but only if the
head of the procuring activity determines that the data are necessary
for the evaluation by the agency of the reasonableness of the price of
the contract, subcontract, or modification of a contract or
subcontract. In any case in which the head of the procuring activity
requires the data to be submitted under this section, the head of the
procuring activity shall justify in writing the reason for the
requirement.
(b) Exception.--The head of the procuring activity may not require
certified cost or pricing data to be submitted under this section for
any contract or subcontract, or modification of a contract or
subcontract, covered by the exceptions in section 3503(a)(1) or (2) of
this title.
(c) Delegation of Authority Prohibited.--The head of a procuring
activity may not delegate the functions under this section.
Sec. 3505. Submission of other information
(a) Authority To Require Submission.--When certified cost or pricing
data are not required to be submitted under this chapter for a
contract, subcontract, or modification of a contract or subcontract,
the contracting officer shall require submission of data other than
certified cost or pricing data to the extent necessary to determine the
reasonableness of the price of the contract, subcontract, or
modification of the contract or subcontract. Except in the case of a
contract or subcontract covered by the exceptions in section 3503(a)(1)
of this title, the contracting officer shall require that the data
submitted include, at a minimum, appropriate information on the prices
at which the same item or similar items have previously been sold that
is adequate for evaluating the reasonableness of the price for the
procurement.
(b) Limitations on Authority.--The Federal Acquisition Regulation
shall include the following provisions regarding the types of
information that contracting officers may require under subsection (a):
(1) Reasonable limitations.--Reasonable limitations on requests
for sales data relating to commercial items.
(2) Limitation on scope of request.--A requirement that a
contracting officer limit, to the maximum extent practicable, the
scope of any request for information relating to commercial items
from an offeror to only that information that is in the form
regularly maintained by the offeror in commercial operations.
(3) Information not to be disclosed.--A statement that any
information received relating to commercial items that is exempt
from disclosure under section 552(b) of title 5 shall not be
disclosed by the Federal Government.
Sec. 3506. Price reductions for defective cost or pricing data
(a) Provision Requiring Adjustment.--
(1) In general.--A prime contract (or change or modification to a
prime contract) under which a certificate under section 3502(b) of
this title is required shall contain a provision that the price of
the contract to the Federal Government, including profit or fee,
shall be adjusted to exclude any significant amount by which it may
be determined by the head of the executive agency that the price
was increased because the contractor (or any subcontractor required
to make the certificate available) submitted defective cost or
pricing data.
(2) What constitutes defective cost or pricing data.--For the
purposes of this chapter, defective cost or pricing data are cost
or pricing data that, as of the date of agreement on the price of
the contract (or another date agreed on between the parties), were
inaccurate, incomplete, or noncurrent. If for purposes of the
preceding sentence the parties agree on a date other than the date
of agreement on the price of the contract, the date agreed on by
the parties shall be as close to the date of agreement on the price
of the contract as is practicable.
(b) Valid Defense.--In determining for purposes of a contract price
adjustment under a contract provision required by subsection (a)
whether, and to what extent, a contract price was increased because the
contractor (or a subcontractor) submitted defective cost or pricing
data, it is a defense that the Federal Government did not rely on the
defective data submitted by the contractor or subcontractor.
(c) Invalid Defenses.--It is not a defense to an adjustment of the
price of a contract under a contract provision required by subsection
(a) that--
(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) Offsets.--
(1) When allowed.--A contractor shall be allowed to offset an
amount against the amount of a contract price adjustment under a
contract provision required by subsection (a) if--
(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) When not allowed.--A contractor shall not be allowed to
offset an amount otherwise authorized to be offset under paragraph
(1) if--
(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.
Sec. 3507. Interest and penalties for certain overpayments
(a) In General.--If the Federal Government makes an overpayment to a
contractor under a contract with an executive agency subject to this
chapter and the overpayment was due to the submission by the contractor
of defective cost or pricing data, the contractor shall be liable to
the Federal Government--
(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) Liability Not Affected by Refusal To Submit Certification.--Any
liability under this section of a contractor that submits cost or
pricing data but refuses to submit the certification required by
section 3502(b) of this title with respect to the cost or pricing data
is not affected by the refusal to submit the certification.
Sec. 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.
Sec. 3509. Notification of violations of Federal criminal law or
overpayments
(a) Definition.--In this section, the term ``covered contract'' means
any contract in an amount greater than $5,000,000 and more than 120
days in duration.
(b) Federal Acquisition Regulation.--The Federal Acquisition
Regulation shall include, pursuant to FAR Case 2007-006 (as published
at 72 Fed. Reg. 64019, November 14, 2007) or any follow-on FAR case,
provisions that require timely notification by Federal contractors of
violations of Federal criminal law or overpayments in connection with
the award or performance of covered contracts or subcontracts,
including those performed outside the United States and those for
commercial items.
CHAPTER 37--AWARDING OF CONTRACTS
Sec.
3701. Basis of award and rejection.
3702. Sealed bids.
3703. Competitive proposals.
3704. Post-award debriefings.
3705. Pre-award debriefings.
3706. Encouragement of alternative dispute resolution.
3707. Antitrust violations.
3708. Protests.
Sec. 3701. Basis of award and rejection
(a) Award.--An executive agency shall evaluate sealed bids and
competitive proposals, and award a contract, based solely on the
factors specified in the solicitation.
(b) Rejection.--All sealed bids or competitive proposals received in
response to a solicitation may be rejected if the agency head
determines that rejection is in the public interest.
Sec. 3702. Sealed bids
(a) Opening of Bids.--Sealed bids shall be opened publicly at the
time and place stated in the solicitation.
(b) Criteria for Awarding Contract.--The executive agency shall
evaluate the bids in accordance with section 3701(a) of this title
without discussions with the bidders and, except as provided in section
3701(b) of this title, shall award a contract with reasonable
promptness to the responsible source whose bid conforms to the
solicitation and is most advantageous to the Federal Government,
considering only price and the other price-related factors included in
the solicitation.
(c) Notice of Award.--The award of a contract shall be made by
transmitting, in writing or by electronic means, notice of the award to
the successful bidder. Within 3 days after the date of contract award,
the executive agency shall notify, in writing or by electronic means,
each bidder not awarded the contract that the contract has been
awarded.
Sec. 3703. Competitive proposals
(a) Evaluation and Award.--An executive agency shall evaluate
competitive proposals in accordance with section 3701(a) of this title
and may award a contract--
(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) Limit on Number of Proposals.--If the contracting officer
determines that the number of offerors that would otherwise be included
in the competitive range under subsection (a)(1) exceeds the number at
which an efficient competition can be conducted, the contracting
officer may limit the number of proposals in the competitive range, in
accordance with the criteria specified in the solicitation, to the
greatest number that will permit an efficient competition among the
offerors rated most highly in accordance with those criteria.
(c) Criteria for Awarding Contract.--Except as otherwise provided in
section 3701(b) of this title, the executive agency shall award a
contract with reasonable promptness to the responsible source whose
proposal is most advantageous to the Federal Government, considering
only cost or price and the other factors included in the solicitation.
(d) Notice of Award.--The executive agency shall award the contract
by transmitting, in writing or by electronic means, notice of the award
to that source and, within 3 days after the date of contract award,
shall notify, in writing or by electronic means, all other offerors of
the rejection of their proposals.
Sec. 3704. Post-award debriefings
(a) Request for Debriefing.--When a contract is awarded by the head
of an executive agency on the basis of competitive proposals, an
unsuccessful offeror, on written request received by the agency within
3 days after the date on which the unsuccessful offeror receives the
notification of the contract award, shall be debriefed and furnished
the basis for the selection decision and contract award.
(b) When Debriefing To Be Conducted.--The executive agency shall
debrief the offeror within, to the maximum extent practicable, 5 days
after receipt of the request by the executive agency.
(c) Information To Be Provided.--The debriefing shall include, at a
minimum--
(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 item
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) Information Not To Be Included.--The debriefing may not include
point-by-point comparisons of the debriefed offeror's offer with other
offers and may not disclose any information that is exempt from
disclosure under section 552(b) of title 5.
(e) Inclusion of Statement in Solicitation.--Each solicitation for
competitive proposals shall include a statement that information
described in subsection (c) may be disclosed in post-award debriefings.
(f) After Successful Protest.--If, within one year after the date of
the contract award and as a result of a successful procurement protest,
the executive agency seeks to fulfill the requirement under the
protested contract either on the basis of a new solicitation of offers
or on the basis of new best and final offers requested for that
contract, the head of the executive agency shall make available to all
offerors--
(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) Summary To Be Included in File.--The contracting officer shall
include a summary of the debriefing in the contract file.
Sec. 3705. Pre-award debriefings
(a) Request for Debriefing.--When the contracting officer excludes an
offeror submitting a competitive proposal from the competitive range
(or otherwise excludes that offeror from further consideration prior to
the final source selection decision), the excluded offeror may request
in writing, within 3 days after the date on which the excluded offeror
receives notice of its exclusion, a debriefing prior to award.
(b) When Debriefing To Be Conducted.--The contracting officer shall
make every effort to debrief the unsuccessful offeror as soon as
practicable but may refuse the request for a debriefing if it is not in
the best interests of the Federal Government to conduct a debriefing at
that time.
(c) Precondition for Post-Award Debriefing.--The contracting officer
is required to debrief an excluded offeror in accordance with section
3704 of this title only if that offeror requested and was refused a
pre-award debriefing under subsections (a) and (b).
(d) Information To Be Provided.--The debriefing conducted under this
section shall include--
(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) Information Not To Be Disclosed.--The debriefing conducted
pursuant to this section may not disclose the number or identity of
other offerors and shall not disclose information about the content,
ranking, or evaluation of other offerors' proposals.
(f) Summary To Be Included in File.--The contracting officer shall
include a summary of the debriefing in the contract file.
Sec. 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.
Sec. 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.
Sec. 3708. Protests
(a) Protest File.--
(1) Establishment and access.--If, in the case of a solicitation
for a contract issued by, or an award or proposed award of a
contract by, the head of an executive agency, a protest is filed
pursuant to the procedures in subchapter V of chapter 35 of title
31, and an actual or prospective offeror requests, a file of the
protest shall be established by the procuring activity and
reasonable access shall be provided to actual or prospective
offerors.
(2) Redacted information.--Information exempt from disclosure
under section 552 of title 5 may be redacted in a file established
pursuant to paragraph (1) unless an applicable protective order
provides otherwise.
(b) Agency Actions on Protests.--If, in connection with a protest,
the head of an executive agency determines that a solicitation,
proposed award, or award does not comply with the requirements of law
or regulation, the head of the executive agency may--
(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).
CHAPTER 39--SPECIFIC TYPES OF CONTRACTS
Sec.
3901. Contracts awarded using procedures other than sealed-bid
procedures.
3902. Severable services contracts for periods crossing fiscal years.
3903. Multiyear contracts.
3904. Contract authority for severable services contracts and multiyear
contracts.
3905. Cost contracts.
3906. Cost-reimbursement contracts.
Sec. 3901. Contracts awarded using procedures other than sealed-bid
procedures
(a) Authorized Types.--Except as provided in section 3905 of this
title, contracts awarded after using procedures other than sealed-bid
procedures may be of any type which in the opinion of the agency head
will promote the best interests of the Federal Government.
(b) Required Warranty.--
(1) Content.--Every contract awarded after using procedures other
than sealed-bid procedures shall contain a suitable warranty, as
determined by the agency head, by the contractor that no person or
selling agency has been employed or retained to solicit or secure
the contract on an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, except for bona fide
employees or bona fide established commercial or selling agencies
the contractor maintains to secure business.
(2) Remedy for breach or violation.--For the breach or violation
of the warranty, the Federal Government may annul the contract
without liability or deduct from the contract price or
consideration the full amount of the commission, percentage,
brokerage, or contingent fee.
(3) Nonapplication.--Paragraph (1) does not apply to a contract
for an amount that is not greater than the simplified acquisition
threshold or to a contract for the acquisition of commercial items.
Sec. 3902. Severable services contracts for periods crossing fiscal
years
(a) Authority To Enter Into Contract.--The head of an executive
agency may enter into a contract for the procurement of severable
services for a period that begins in one fiscal year and ends in the
next fiscal year if (without regard to any option to extend the period
of the contract) the contract period does not exceed one year.
(b) Obligation of Funds.--Funds made available for a fiscal year may
be obligated for the total amount of a contract entered into under the
authority of this section.
Sec. 3903. Multiyear contracts
(a) Definition.--In this section, a multiyear contract is a contract
for the purchase of property or services for more than one, but not
more than 5, program years.
(b) Authority To Enter Into Contract.--An executive agency may enter
into a multiyear contract for the acquisition of property or services
if--
(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) Termination Clause.--A multiyear contract entered into under the
authority of this section shall include a clause that provides that the
contract shall be terminated if funds are not made available for the
continuation of the contract in a fiscal year covered by the contract.
Funds available for paying termination costs shall remain available for
that purpose until the costs associated with termination of the
contract are paid.
(d) Cancellation Ceiling Notice.--Before a contract described in
subsection (b) that contains a clause setting forth a cancellation
ceiling in excess of $10,000,000 may be awarded, the executive agency
shall give written notification of the proposed contract and of the
proposed cancellation ceiling for that contract to Congress. The
contract may not be awarded until the end of the 30-day period
beginning on the date of the notification.
(e) Contingency Clause for Appropriation of Funds.--A multiyear
contract may provide that performance under the contract after the
first year of the contract is contingent on the appropriation of funds
and (if the contract does so provide) that a cancellation payment shall
be made to the contractor if the funds are not appropriated.
(f) Other Law Not Affected.--This section does not modify or affect
any other provision of law that authorizes multiyear contracts.
Sec. 3904. Contract authority for severable services contracts and
multiyear contracts
(a) Comptroller General.--The Comptroller General may use available
funds to enter into contracts for the procurement of severable services
for a period that begins in one fiscal year and ends in the next fiscal
year and to enter into multiyear contracts for the acquisition of
property and nonaudit-related services to the same extent as executive
agencies under sections 3902 and 3903 of this title.
(b) Library of Congress.--The Library of Congress may use available
funds to enter into contracts for the lease or procurement of severable
services for a period that begins in one fiscal year and ends in the
next fiscal year and to enter into multiyear contracts for the
acquisition of property and services pursuant to sections 3902 and 3903
of this title.
(c) Chief Administrative Officer of the House of Representatives.--
The Chief Administrative Officer of the House of Representatives may
enter into--
(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) Congressional Budget Office.--The Congressional Budget Office may
use available funds to enter into contracts for the procurement of
severable services for a period that begins in one fiscal year and ends
in the next fiscal year and may enter into multiyear contracts for the
acquisition of property and services to the same extent as executive
agencies under the authority of sections 3902 and 3903 of this title.
(e) Secretary and Sergeant at Arms and Doorkeeper of the Senate.--
Subject to regulations prescribed by the Committee on Rules and
Administration of the Senate, the Secretary and the Sergeant at Arms
and Doorkeeper of the Senate may enter into--
(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) Capitol Police.--The United States Capitol Police may enter
into--
(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) Architect of the Capitol.--The Architect of the Capitol may enter
into--
(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) Secretary of the Smithsonian Institution.--The Secretary of the
Smithsonian Institution may enter into--
(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.
Sec. 3905. Cost contracts
(a) Cost-Plus-A-Percentage-Of-Cost Contracts Disallowed.--The cost-
plus-a-percentage-of-cost system of contracting shall not be used.
(b) Cost-Plus-A-Fixed-Fee Contracts.--
(1) In general.--Except as provided in paragraphs (2) and (3),
the fee in a cost-plus-a-fixed-fee contract shall not exceed 10
percent of the estimated cost of the contract, not including the
fee, as determined by the agency head at the time of entering into
the contract.
(2) Experimental, developmental, or research work.--The fee in a
cost-plus-a-fixed-fee contract for experimental, developmental, or
research work shall not exceed 15 percent of the estimated cost of
the contract, not including the fee.
(3) Architectural or engineering services.--The fee in a cost-
plus-a-fixed-fee contract for architectural or engineering services
relating to any public works or utility project may include the
contractor's costs and shall not exceed 6 percent of the estimated
cost, not including the fee, as determined by the agency head at
the time of entering into the contract, of the project to which the
fee applies.
(c) Notification.--All cost and cost-plus-a-fixed-fee contracts shall
provide for advance notification by the contractor to the procuring
agency of any subcontract on a cost-plus-a-fixed-fee basis and of any
fixed-price subcontract or purchase order which exceeds in dollar
amount either the simplified acquisition threshold or 5 percent of the
total estimated cost of the prime contract.
(d) Right To Audit.--A procuring agency, through any authorized
representative thereof, has the right to inspect the plans and to audit
the books and records of a prime contractor or subcontractor engaged in
the performance of a cost or cost-plus-a-fixed-fee contract.
Sec. 3906. Cost-reimbursement contracts
(a) Definition.--In this section, the term ``executive agency'' has
the same meaning given in section 133 of this title.
(b) Regulations on the Use of Cost-Reimbursement Contracts.--The
Federal Acquisition Regulation shall address the use of cost-
reimbursement contracts.
(c) Content.--The regulations promulgated under subsection (b) shall
include guidance regarding--
(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) Annual Report.--
(1) In general.--The Director of the Office of Management and
Budget shall submit an annual report to Congressional committees
identified in subsection (e) on the use of cost-reimbursement
contracts and task or delivery orders by all executive agencies.
(2) Contents.--The report shall include--
(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) Time requirements.--
(A) Deadline.--The report shall be submitted no later than
March 1 and shall cover the fiscal year ending September 30 of
the prior year.
(B) Limitation.--The report shall be submitted from March 1,
2009, until March 1, 2014.
(e) Congressional Committees.--The report required by subsection (d)
shall be submitted to--
(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.
CHAPTER 41--TASK AND DELIVERY ORDER CONTRACTS
Sec.
4101. Definitions.
4102. Authorities or responsibilities not affected.
4103. General authority.
4104. Guidance on use of task and delivery order contracts.
4105. Advisory and assistance services.
4106. Orders.
Sec. 4101. Definitions
In this chapter:
(1) Delivery order contract.--The term ``delivery order
contract'' means a contract for property that--
(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) Task order contract.--The term ``task order contract'' means
a contract for services that--
(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.
Sec. 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.
Sec. 4103. General authority
(a) Authority To Award.--Subject to the requirements of this section,
section 4106 of this title, and other applicable law, the head of an
executive agency may enter into a task or delivery order contract for
procurement of services or property.
(b) Solicitation.--The solicitation for a task or delivery order
contract shall include--
(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) Applicability of Restriction on Use of Noncompetitive
Procedures.--The head of an executive agency may use procedures other
than competitive procedures to enter into a task or delivery order
contract under this section only if an exception in section 3304(a) of
this title applies to the contract and the use of those procedures is
approved in accordance with section 3304(e) of this title.
(d) Single and Multiple Contract Awards.--
(1) Exercise of authority.--The head of an executive agency may
exercise the authority provided in this section--
(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) Determination not required.--No determination under section
3303 of this title is required for an award of multiple task or
delivery order contracts under paragraph (1)(B).
(3) Single source award for task or delivery order contracts
exceeding $100,000,000.--
(A) When single awards are allowed.--No task or delivery
order contract in an amount estimated to exceed $100,000,000
(including all options) may be awarded to a single source
unless the head of the executive agency determines in writing
that--
(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) Notification of Congress.--The head of the executive
agency shall notify Congress within 30 days after any
determination under subparagraph (A)(iv).
(4) Regulations.--Regulations implementing this subsection shall
establish--
(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) Contract Modifications.--A task or delivery order may not
increase the scope, period, or maximum value of the task or delivery
order contract under which the order is issued. The scope, period, or
maximum value of the contract may be increased only by modification of
the contract.
(f) Inapplicability to Contracts for Advisory and Assistance
Services.--Except as otherwise specifically provided in section 4105 of
this title, this section does not apply to a task or delivery order
contract for the acquisition of advisory and assistance services (as
defined in section 1105(g) of title 31).
(g) Relationship to Other Contracting Authority.--Nothing in this
section may be construed to limit or expand any authority of the head
of an executive agency or the Administrator of General Services to
enter into schedule, multiple award, or task or delivery order
contracts under any other provision of law.
Sec. 4104. Guidance on use of task and delivery order contracts
(a) Guidance in Federal Acquisition Regulation.--The Federal
Acquisition Regulation issued in accordance with sections 1121(b) and
1303(a)(1) of this title shall provide guidance to agencies on the
appropriate use of task and delivery order contracts in accordance with
this chapter and sections 2304a to 2304d of title 10.
(b) Content of Regulations.--The regulations issued pursuant to
subsection (a) at a minimum shall provide specific guidance on--
(1) the appropriate use of Government-wide and other multiagency
contracts entered into in accordance with this chapter and sections
2304a to 2304d 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 2304c(b) 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 2304c(c) 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) Federal Supply Schedules Program.--The Administrator for Federal
Procurement Policy shall consult with the Administrator of General
Services to assess the effectiveness of the multiple awards schedule
program of the General Services Administration referred to in section
152(3) of this title that is administered as the Federal Supply
Schedules program. The assessment shall include examination of--
(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.
Sec. 4105. Advisory and assistance services
(a) Definition.--In this section, the term ``advisory and assistance
services'' has the same meaning given that term in section 1105(g) of
title 31.
(b) Authority To Award.--
(1) In general.--Subject to the requirements of this section,
section 4106 of this title, and other applicable law, the head of
an executive agency may enter into a task order contract for
procurement of advisory and assistance services.
(2) Only under this section.--The head of an executive agency may
enter into a task order contract for advisory and assistance
services only under this section.
(c) Contract Period.--The period of a task order contract entered
into under this section, including all periods of extensions of the
contract under options, modifications, or otherwise, may not exceed 5
years unless a longer period is specifically authorized in a law that
is applicable to the contract.
(d) Content of Notice.--The notice required by section 1708 of this
title and section 8(e) of the Small Business Act (15 U.S.C. 637(e))
shall reasonably and fairly describe the general scope, magnitude, and
duration of the proposed task order contract in a manner that would
reasonably enable a potential offeror to decide whether to request the
solicitation and consider submitting an offer.
(e) Required Content of Solicitation and Contract.--
(1) Solicitation.--The solicitation shall include the information
(regarding services) described in section 4103(b) of this title.
(2) Contract.--A task order contract entered into under this
section shall contain the same information that is required by
paragraph (1) to be included in the solicitation of offers for that
contract.
(f) Multiple Awards.--
(1) Authority to make multiple awards.--On the basis of one
solicitation, the head of an executive agency may award separate
task order contracts under this section for the same or similar
services to 2 or more sources if the solicitation states that the
head of the executive agency has the option to do so.
(2) Content of solicitation.--In the case of a task order
contract for advisory and assistance services to be entered into
under this section, if the contract period is to exceed 3 years and
the contract amount is estimated to exceed $10,000,000 (including
all options), the solicitation shall--
(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) Nonapplication.--Paragraph (2) does not apply in the case of
a solicitation for which the head of the executive agency concerned
determines in writing that, because the services required under the
contract are unique or highly specialized, it is not practicable to
award more than one contract.
(g) Contract Modifications.--
(1) Increase in scope, period, or maximum value of contract only
by modification of contract.--A task order may not increase the
scope, period, or maximum value of the task order contract under
which the order is issued. The scope, period, or maximum value of
the contract may be increased only by modification of the contract.
(2) Use of competitive procedures.--Unless use of procedures
other than competitive procedures is authorized by an exception in
section 3304(a) of this title and approved in accordance with
section 3304(e) of this title, competitive procedures shall be used
for making such a modification.
(3) Notice.--Notice regarding the modification shall be provided
in accordance with section 1708 of this title and section 8(e) of
the Small Business Act (15 U.S.C. 637(e)).
(h) Contract Extensions.--
(1) When contract may be extended.--Notwithstanding the
limitation on the contract period set forth in subsection (c) or in
a solicitation or contract pursuant to subsection (f), a contract
entered into by the head of an executive agency under this section
may be extended on a sole-source basis for a period not exceeding 6
months if the head of the executive agency determines that--
(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) Limit of one extension.--A task order contract may be
extended under paragraph (1) only once and only in accordance with
the limitations and requirements of this subsection.
(i) Inapplicability to Certain Contracts.--This section does not
apply to a contract for the acquisition of property or services that
includes acquisition of advisory and assistance services if the head of
the executive agency entering into the contract determines that, under
the contract, advisory and assistance services are necessarily incident
to, and not a significant component of, the contract.
Sec. 4106. Orders
(a) Application.--This section applies to task and delivery order
contracts entered into under sections 4103 and 4105 of this title.
(b) Actions Not Required for Issuance of Orders.--The following
actions are not required for issuance of a task or delivery order under
a task or delivery order contract:
(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) Multiple Award Contracts.--When multiple contracts are awarded
under section 4103(d)(1)(B) or 4105(f) of this title, all contractors
awarded the contracts shall be provided a fair opportunity to be
considered, pursuant to procedures set forth in the contracts, for each
task or delivery order in excess of $2,500 that is to be issued under
any of the contracts, unless--
(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) Enhanced Competition for Orders in Excess of $5,000,000.--In the
case of a task or delivery order in excess of $5,000,000, the
requirement to provide all contractors a fair opportunity to be
considered under subsection (c) is not met unless all such contractors
are provided, at a minimum--
(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) Statement of Work.--A task or delivery order shall include a
statement of work that clearly specifies all tasks to be performed or
property to be delivered under the order.
(f) Protests.--
(1) Protest not authorized.--A protest is not authorized in
connection with the issuance or proposed issuance of a task or
delivery order except for--
(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) Jurisdiction over protests.--Notwithstanding section 3556 of
title 31, the Comptroller General shall have exclusive jurisdiction
of a protest authorized under paragraph (1)(B).
(3) Effective period.--This subsection shall be in effect for
three years, beginning on the date that is 120 days after January
28, 2008.
(g) Task and Delivery Order Ombudsman.--
(1) Appointment or designation and responsibilities.--The head of
each executive agency who awards multiple task or delivery order
contracts under section 4103(d)(1)(B) or 4105(f) of this title
shall appoint or designate a task and delivery order ombudsman who
shall be responsible for reviewing complaints from the contractors
on those contracts and ensuring that all of the contractors are
afforded a fair opportunity to be considered for task or delivery
orders when required under subsection (c).
(2) Who is eligible.--The task and delivery order ombudsman shall
be a senior agency official who is independent of the contracting
officer for the contracts and may be the executive agency's
advocate for competition.
CHAPTER 43--ALLOWABLE COSTS
Sec.
4301. Definitions.
4302. Adjustment of threshold amount of covered contract.
4303. Effect of submission of unallowable costs.
4304. Specific costs not allowable.
4305. Required regulations.
4306. Applicability of regulations to subcontractors.
4307. Contractor certification.
4308. Penalties for submission of cost known to be unallowable.
4309. Burden of proof on contractor.
4310. Proceeding costs not allowable.
Sec. 4301. Definitions
In this chapter:
(1) Compensation.--The term ``compensation'', for a fiscal year,
means the total amount of wages, salary, bonuses, and deferred
compensation for the fiscal year, whether paid, earned, or
otherwise accruing, as recorded in an employer's cost accounting
records for the fiscal year.
(2) Covered contract.--The term ``covered contract'' means a
contract for an amount in excess of $500,000 that is entered into
by an executive agency, except that the term does not include a
fixed-price contract without cost incentives or any firm fixed-
price contract for the purchase of commercial items.
(3) Fiscal year.--The term ``fiscal year'' means a fiscal year
established by a contractor for accounting purposes.
(4) Senior executive.--The term ``senior executive'', with
respect to a contractor, means the 5 most highly compensated
employees in management positions at each home office and each
segment of the contractor.
Sec. 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.
Sec. 4303. Effect of submission of unallowable costs
(a) Indirect Cost That Violates Federal Acquisition Regulation Cost
Principle.--An executive agency shall require that a covered contract
provide that if the contractor submits to the executive agency a
proposal for settlement of indirect costs incurred by the contractor
for any period after those costs have been accrued and if that proposal
includes the submission of a cost that is unallowable because the cost
violates a cost principle in the Federal Acquisition Regulation or an
executive agency supplement to the Federal Acquisition Regulation, the
cost shall be disallowed.
(b) Penalty for Violation of Cost Principle.--
(1) Unallowable cost in proposal.--If the executive agency
determines that a cost submitted by a contractor in its proposal
for settlement is expressly unallowable under a cost principle
referred to in subsection (a) that defines the allowability of
specific selected costs, the executive agency shall assess a
penalty against the contractor in an amount equal to--
(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) Cost determined to be unallowable before proposal
submitted.--If the executive agency determines that a proposal for
settlement of indirect costs submitted by a contractor includes a
cost determined to be unallowable in the case of that contractor
before the submission of that proposal, the executive agency shall
assess a penalty against the contractor in an amount equal to 2
times the amount of the disallowed cost allocated to covered
contracts for which a proposal for settlement of indirect costs has
been submitted.
(c) Waiver of Penalty.--The Federal Acquisition Regulation shall
provide for a penalty under subsection (b) to be waived in the case of
a contractor's proposal for settlement of indirect costs when--
(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) Applicability of Contract Disputes Procedure.--An action of an
executive agency under subsection (a) or (b)--
(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.
Sec. 4304. Specific costs not allowable
(a) Specific Costs.--The following costs are not allowable under a
covered contract:
(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 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) 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.
(b) Waiver of Severance Pay Restrictions for Foreign Nationals.--
(1) Executive agency determination.--Pursuant to the Federal
Acquisition Regulation and subject to the availability of
appropriations, an executive agency, in awarding a covered
contract, may waive the application of paragraphs (13) and (14) of
subsection (a) to that contract if the executive agency determines
that--
(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) Solicitation to include statement about waiver.--An executive
agency shall include in the solicitation for a covered contract a
statement indicating--
(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) Determination to be made before contract awarded.--An
executive agency shall make the final determination whether to
grant a waiver under paragraph (1) with respect to a covered
contract before award of the contract.
(c) Establishment of Definitions, Exclusions, Limitations, and
Qualifications.--The provisions of the Federal Acquisition Regulation
implementing this chapter may establish appropriate definitions,
exclusions, limitations, and qualifications. A submission by a
contractor of costs that are incurred by the contractor and that are
claimed to be allowable under Department of Energy management and
operating contracts shall be considered a proposal for settlement of
indirect costs incurred by the contractor for any period after those
costs have been accrued.
Sec. 4305. Required regulations
(a) In General.--The Federal Acquisition Regulation shall contain
provisions on the allowability of contractor costs. Those provisions
shall define in detail and in specific terms the costs that are
unallowable, in whole or in part, under covered contracts.
(b) Specific Items.--The regulations shall, at a minimum, clarify the
cost principles applicable to contractor costs of the following:
(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) Additional Requirements.--
(1) When questioned costs may be resolved.--The Federal
Acquisition Regulation shall require that a contracting officer not
resolve any questioned costs until the contracting officer has
obtained--
(A) adequate documentation of those costs; and
(B) the opinion of the contract auditor on the allowability
of those costs.
(2) Presence of contract auditor.--The Federal Acquisition
Regulation shall provide that, to the maximum extent practicable, a
contract auditor be present at any negotiation or meeting with the
contractor regarding a determination of the allowability of
indirect costs of the contractor.
(3) Settlement to reflect amount of individual questioned
costs.--The Federal Acquisition Regulation shall require that all
categories of costs designated in the report of a contract auditor
as questioned with respect to a proposal for settlement be resolved
in a manner so that the amount of the individual questioned costs
that are paid will be reflected in the settlement.
Sec. 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.
Sec. 4307. Contractor certification
(a) Content and Form.--A proposal for settlement of indirect costs
applicable to a covered contract shall include a certification by an
official of the contractor that, to the best of the certifying
official's knowledge and belief, all indirect costs included in the
proposal are allowable. The certification shall be in a form prescribed
in the Federal Acquisition Regulation.
(b) Waiver.--An executive agency may, in an exceptional case, waive
the requirement for certification under subsection (a) in the case of a
contract if the agency--
(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.
Sec. 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.
Sec. 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.
Sec. 4310. Proceeding costs not allowable
(a) Definitions.--In this section:
(1) Costs.--The term ``costs'', with respect to a proceeding,
means all costs incurred by a contractor, whether before or after
the commencement of the proceeding, including--
(A) administrative and clerical expenses;
(B) the cost of legal services, including legal services
performed by an employee of the contractor;
(C) the cost of the services of accountants and consultants
retained by the contractor; and
(D) the pay of directors, officers, and employees of the
contractor for time devoted by those directors, officers, and
employees to the proceeding.
(2) Penalty.--The term ``penalty'' does not include restitution,
reimbursement, or compensatory damages.
(3) Proceeding.--The term ``proceeding'' includes an
investigation.
(b) In General.--Except as otherwise provided in this section, costs
incurred by a contractor in connection with a criminal, civil, or
administrative proceeding commenced by the Federal Government or a
State are not allowable as reimbursable costs under a covered contract
if the proceeding--
(1) relates to a violation of, or failure to comply with, a
Federal or State statute or regulation; and
(2) results in a disposition described in subsection (c).
(c) Covered Dispositions.--A disposition referred to in subsection
(b)(2) is any of the following:
(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 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 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.
(B) Rescind or void the contract.
(C) Terminate the 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) Costs Allowed by Settlement Agreement in Proceeding Commenced by
Federal Government.--In the case of a proceeding referred to in
subsection (b) that is commenced by the Federal Government and is
resolved by consent or compromise pursuant to an agreement entered into
by a contractor and the Federal Government, the costs incurred by the
contractor in connection with the proceeding that are otherwise not
allowable as reimbursable costs under subsection (b) may be allowed to
the extent specifically provided in that agreement.
(e) Costs Specifically Authorized by Executive Agency in Proceeding
Commenced by State.--In the case of a proceeding referred to in
subsection (b) that is commenced by a State, the executive agency that
awarded the covered contract involved in the proceeding may allow the
costs incurred by the contractor in connection with the proceeding as
reimbursable costs if the executive agency determines, in accordance
with the Federal Acquisition Regulation, that the costs were incurred
as a result of--
(1) a specific term or condition of the contract; or
(2) specific written instructions of the executive agency.
(f) Other Allowable Costs.--
(1) In general.--Except as provided in paragraph (3), costs
incurred by a contractor in connection with a criminal, civil, or
administrative proceeding commenced by the Federal Government or a
State in connection with a covered contract may be allowed as
reimbursable costs under the contract if the costs are not
disallowable under subsection (b), but only to the extent provided
in paragraph (2).
(2) Amount of allowable costs.--
(A) Maximum amount allowed.--The amount of the costs
allowable under paragraph (1) in any case may not exceed the
amount equal to 80 percent of the amount of the costs incurred,
to the extent that the costs are determined to be otherwise
allowable and allocable under the Federal Acquisition
Regulation.
(B) Content of regulations.--Regulations issued for the
purpose of subparagraph (A) shall provide for appropriate
consideration of the complexity of procurement litigation,
generally accepted principles governing the award of legal fees
in civil actions involving the Federal Government as a party,
and other factors as may be appropriate.
(3) When otherwise allowable costs are not allowable.--In the
case of a proceeding referred to in paragraph (1), contractor costs
otherwise allowable as reimbursable costs under this subsection are
not allowable if--
(A) the proceeding involves the same 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).
CHAPTER 45--CONTRACT FINANCING
Sec.
4501. Authority of executive agency.
4502. Payment.
4503. Security for advance payments.
4504. Conditions for progress payments.
4505. Payments for commercial items.
4506. Action in case of fraud.
Sec. 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.
Sec. 4502. Payment
(a) Basis for Payment.--When practicable, payments under section 4501
of this title shall be made on any of the following bases:
(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) Payment Amount.--Payments made under section 4501 of this title
may not exceed the unpaid contract price.
Sec. 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.
Sec. 4504. Conditions for progress payments
(a) Payment Commensurate With Work.--The executive agency shall
ensure that a payment for work in progress (including materials, labor,
and other items) under a contract of an executive agency that provides
for those payments is commensurate with the work accomplished that
meets standards established under the contract. The contractor shall
provide information and evidence the executive agency determines is
necessary to permit the executive agency to carry out this subsection.
(b) Limitation.--The executive agency shall ensure that progress
payments referred to in subsection (a) are not made for more than 80
percent of the work accomplished under the contract as long as the
executive agency has not made the contractual terms, specifications,
and price definite.
(c) Application.--This section applies to a contract in an amount
greater than $25,000.
Sec. 4505. Payments for commercial items
(a) Terms and Conditions for Payments.--Payments under section 4501
of this title for commercial items may be made under terms and
conditions that the head of the executive agency determines are
appropriate or customary in the commercial marketplace and are in the
best interests of the Federal Government.
(b) Security for Payments.--The head of the executive agency shall
obtain adequate security for the payments. If the security is in the
form of a lien in favor of the Federal Government, the lien is
paramount to all other liens and is effective immediately on the first
payment, without filing, notice, or other action by the Federal
Government.
(c) Limitation on Advance Payments.--Advance payments made under
section 4501 of this title for commercial items may include payments,
in a total amount not more than 15 percent of the contract price, in
advance of any performance of work under the contract.
(d) Nonapplication of Certain Conditions.--The conditions of sections
4503 and 4504 of this title need not be applied if they would be
inconsistent, as determined by the head of the executive agency, with
commercial terms and conditions pursuant to this section.
Sec. 4506. Action in case of fraud
(a) Definition.--In this section, the term ``remedy coordination
official'', with respect to an executive agency, means the individual
or entity in that executive agency who coordinates within that
executive agency the administration of criminal, civil, administrative,
and contractual remedies resulting from investigations of fraud or
corruption related to procurement activities.
(b) Recommendation To Reduce or Suspend Payments.--In any case in
which the remedy coordination official of an executive agency finds
that there is substantial evidence that the request of a contractor for
advance, partial, or progress payment under a contract awarded by that
executive agency is based on fraud, the remedy coordination official
shall recommend that the executive agency reduce or suspend further
payments to that contractor.
(c) Reduction or Suspension of Payments.--The head of an executive
agency receiving a recommendation under subsection (b) in the case of a
contractor's request for payment under a contract shall determine
whether there is substantial evidence that the request is based on
fraud. On making an affirmative determination, the head of the
executive agency may reduce or suspend further payments to the
contractor under the contract.
(d) Extent of Reduction or Suspension.--The extent of any reduction
or suspension of payments by an executive agency under subsection (c)
on the basis of fraud shall be reasonably commensurate with the
anticipated loss to the Federal Government resulting from the fraud.
(e) Written Justification.--A written justification for each decision
of the head of an executive agency whether to reduce or suspend
payments under subsection (c), and for each recommendation received by
the executive agency in connection with the decision, shall be prepared
and be retained in the files of the executive agency.
(f) Notice.--The head of each executive agency shall prescribe
procedures to ensure that, before the head of the executive agency
decides to reduce or suspend payments in the case of a contractor under
subsection (c), the contractor is afforded notice of the proposed
reduction or suspension and an opportunity to submit matters to the
executive agency in response to the proposed reduction or suspension.
(g) Review.--Not later than 180 days after the date on which the head
of an executive agency reduces or suspends payments to a contractor
under subsection (c), the remedy coordination official of the executive
agency shall--
(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) Report.--The head of each executive agency who receives
recommendations made by the remedy coordination official of the
executive agency to reduce or suspend payments under subsection (c)
during a fiscal year shall prepare for that year a report that contains
the recommendations, the actions taken on the recommendations and the
reasons for those actions, and an assessment of the effects of those
actions on the Federal Government. The report shall be available to any
Member of Congress on request.
(i) Restriction on Delegation.--The head of an executive agency may
not delegate responsibilities under this section to an individual in a
position below level IV of the Executive Schedule.
CHAPTER 47--MISCELLANEOUS
Sec.
4701. Determinations and decisions.
4702. Prohibition on release of contractor proposals.
4703. Validation of proprietary data restrictions.
4704. Prohibition of contractors limiting subcontractor sales directly
to Federal Government.
4705. Protection of contractor employees from reprisal for disclosure
of certain information.
4706. Examination of facilities and records of contractor.
4707. Remission of liquidated damages.
4708. Payment of reimbursable indirect costs in cost-type research and
development contracts with educational institutions.
4709. Implementation of electronic commerce capability.
4710. Limitations on tiering of subcontractors.
4711. Linking of award and incentive fees to acquisition outcomes.
Sec. 4701. Determinations and decisions
(a) Individual or Class Determinations and Decisions Authorized.--
(1) In general.--Determinations and decisions required to be made
under this division by the head of an executive agency or provided
in this division or chapters 1 to 11 of title 40 to be made by the
Administrator of General Services or other agency head may be made
for an individual purchase or contract or, except for
determinations or decisions made under sections 3105, 3301, 3303 to
3305, 3306(a)-(e), and 3308, chapter 37, and section 4702 of this
title or to the extent expressly prohibited by another law, for a
class of purchases or contracts.
(2) Delegation.--Except as provided in section 3304(a)(7) of this
title, and except as provided in section 121(d)(1) and (2) of title
40 with respect to the Administrator of General Services, the
agency head, in the discretion and subject to the direction of the
agency head, may delegate powers provided by this division or
chapters 1 to 11 of title 40, including the making of
determinations and decisions described in paragraph (1), to other
officers or officials of the agency.
(3) Finality.--The determinations and decisions are final.
(b) Written Findings.--
(1) Basis for certain determinations.--Each determination or
decision under section 3901, 3905, 4503, or 4706(d)(2)(B) of this
title shall be based on a written finding by the individual making
the determination or decision. A finding under section 4503 or
4706(d)(2)(B) shall set out facts and circumstances that support
the determination or decision.
(2) Finality.--Each finding referred to in paragraph (1) is
final.
(3) Maintaining copies of findings.--The head of an executive
agency shall maintain for a period of not less than 6 years a copy
of each finding referred to in paragraph (1) that is made by an
individual in that executive agency. The period begins on the date
of the determination or decision to which the finding relates.
Sec. 4702. Prohibition on release of contractor proposals
(a) Definition.--In this section, the term ``proposal'' means a
proposal, including a technical, management, or cost proposal,
submitted by a contractor in response to the requirements of a
solicitation for a competitive proposal.
(b) Prohibition.--A proposal in the possession or control of an
executive agency may not be made available to any person under section
552 of title 5.
(c) Nonapplication.--Subsection (b) does not apply to a proposal that
is set forth or incorporated by reference in a contract entered into
between the agency and the contractor that submitted the proposal.
Sec. 4703. Validation of proprietary data restrictions
(a) Contract That Provides for Delivery of Technical Data.--A
contract for property or services entered into by an executive agency
that provides for the delivery of technical data shall provide that--
(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) Challenge of Restriction.--If after a review the contracting
officer determines that a challenge to the asserted restriction is
warranted, the contracting officer shall provide written notice to the
contractor or subcontractor asserting the restriction. The notice shall
state--
(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) Additional Time for Responses.--If a contractor or subcontractor
asserting a restriction subject to this section submits to the
contracting officer a written request showing the need for additional
time to comply with the requirement to justify the current validity of
the asserted restriction, the contracting officer shall provide
appropriate additional time to adequately permit the justification to
be submitted.
(d) Multiple Challenges.--If a party asserting a restriction receives
notices of challenges to restrictions on technical data from more than
one contracting officer, and notifies each contracting officer of the
existence of more than one challenge, the contracting officer
initiating the earliest challenge, after consultation with the party
asserting the restriction and the other contracting officers, shall
formulate a schedule of responses to each of the challenges that will
afford the party asserting the restriction with an equitable
opportunity to respond to each challenge.
(e) Decision on Validity of Asserted Restriction.--
(1) No response submitted.--The contracting officer shall issue a
decision pertaining to the validity of the asserted restriction if
the contractor or subcontractor does not submit a response under
subsection (b).
(2) Response submitted.--Within 60 days of receipt of a
justification submitted in response to the notice provided pursuant
to subsection (b), a contracting officer shall issue a decision or
notify the party asserting the restriction of the time within which
a decision will be issued.
(f) Claim Deemed Claim Within Chapter 71.--A claim pertaining to the
validity of the asserted restriction that is submitted in writing to a
contracting officer by a contractor or subcontractor at any tier is
deemed to be a claim within the meaning of chapter 71 of this title.
(g) Final Disposition of Challenge.--
(1) Challenge is sustained.--If the contracting officer's
challenge to the restriction on the right of the Federal Government
to use technical data is sustained on final disposition--
(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) Challenge not sustained.--If the contracting officer's
challenge to the restriction on the right of the Federal Government
to use technical data is not sustained on final disposition, the
Federal Government--
(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.
Sec. 4704. Prohibition of contractors limiting subcontractor sales
directly to Federal Government
(a) Contract Restrictions.--Each contract for the purchase of
property or services made by an executive agency shall provide that the
contractor will not--
(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) Rights Under Law Preserved.--This section does not prohibit a
contractor from asserting rights it otherwise has under law.
(c) Inapplicability to Certain Contracts.--This section does not
apply to a contract for an amount that is not greater than the
simplified acquisition threshold.
(d) Inapplicability When Government Treated Similarly to Other
Purchasers.--An agreement between the contractor in a contract for the
acquisition of commercial items and a subcontractor under the contract
that restricts sales by the subcontractor directly to persons other
than the contractor may not be considered to unreasonably restrict
sales by that subcontractor to the Federal Government in violation of
the provision included in the contract pursuant to subsection (a) if
the agreement does not result in the Federal Government being treated
differently with regard to the restriction than any other prospective
purchaser of the commercial items from that subcontractor.
Sec. 4705. Protection of contractor employees from reprisal for
disclosure of certain information
(a) Definitions.--In this section:
(1) Contract.--The term ``contract'' means a contract awarded by
the head of an executive agency.
(2) Contractor.--The term ``contractor'' means a person awarded a
contract with an executive agency.
(3) Inspector general.--The term ``Inspector General'' means an
Inspector General appointed under the Inspector General Act of 1978
(5 U.S.C. App.).
(b) Prohibition of Reprisals.--An employee of a contractor may not be
discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing to a Member of Congress or an authorized official of an
executive agency or the Department of Justice information relating to a
substantial violation of law related to a contract (including the
competition for, or negotiation of, a contract).
(c) Investigation of Complaints.--An individual who believes that the
individual has been subjected to a reprisal prohibited by subsection
(b) may submit a complaint to the Inspector General of the executive
agency. Unless the Inspector General determines that the complaint is
frivolous, the Inspector General shall investigate the complaint and,
on completion of the investigation, submit a report of the findings of
the investigation to the individual, the contractor concerned, and the
head of the agency. If the executive agency does not have an Inspector
General, the duties of the Inspector General under this section shall
be performed by an official designated by the head of the executive
agency.
(d) Remedy and Enforcement Authority.--
(1) Actions contractor may be ordered to take.--If the head of an
executive agency determines that a contractor has subjected an
individual to a reprisal prohibited by subsection (b), the head of
the executive agency may take one or more of the following actions:
(A) Abatement.--Order the contractor to take affirmative
action to abate the reprisal.
(B) Reinstatement.--Order the contractor to reinstate the
individual to the position that the individual held before the
reprisal, together with the compensation (including back pay),
employment benefits, and other terms and conditions of
employment that would apply to the individual in that position
if the reprisal had not been taken.
(C) Payment.--Order the 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 the
complainant reasonably incurred for, or in connection with,
bringing the complaint regarding the reprisal, as determined by
the head of the executive agency.
(2) Enforcement order.--When a contractor fails to comply with an
order issued under paragraph (1), the head of the executive agency
shall file an action for enforcement of the order in the United
States district court for a district in which the reprisal was
found to have occurred. In an action brought under this paragraph,
the court may grant appropriate relief, including injunctive relief
and compensatory and exemplary damages.
(3) Review of enforcement order.--A person adversely affected or
aggrieved by an order issued under paragraph (1) may obtain review
of the order's conformance with this subsection, and regulations
issued to carry out this section, in the United States court of
appeals for a circuit in which the reprisal is alleged in the order
to have occurred. A petition seeking review must be filed no more
than 60 days after the head of the agency issues the order. Review
shall conform to chapter 7 of title 5.
(e) Scope of Section.--This section does not--
(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.
Sec. 4706. Examination of facilities and records of contractor
(a) Definition.--In this section, the term ``records'' includes
books, documents, accounting procedures and practices, and other data,
regardless of type and regardless of whether the items are in written
form, in the form of computer data, or in any other form.
(b) Agency Authority.--
(1) Inspection of plant and audit of records.--The head of an
executive agency, acting through an authorized representative, may
inspect the plant and audit the records of--
(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) Examination of records.--The head of an executive agency,
acting through an authorized representative, may, for the purpose
of evaluating the accuracy, completeness, and currency of certified
cost or pricing data required to be submitted pursuant to chapter
35 of this title with respect to a contract or subcontract, examine
all records of the contractor or subcontractor related to--
(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) Subpoena Power.--
(1) Authority to require the production of records.--The
Inspector General of an executive agency appointed under section 3
or 8G of the Inspector General Act of 1978 (5 U.S.C. App.) or, on
request of the head of an executive agency, the Director of the
Defense Contract Audit Agency (or any successor agency) of the
Department of Defense or the Inspector General of the General
Services Administration may require by subpoena the production of
records of a contractor, access to which is provided for that
executive agency by subsection (b).
(2) Enforcement of subpoena.--A subpoena under paragraph (1), in
the case of contumacy or refusal to obey, is enforceable by order
of an appropriate United States district court.
(3) Authority not delegable.--The authority provided by paragraph
(1) may not be delegated.
(4) Report.--In the year following a year in which authority
provided in paragraph (1) is exercised for an executive agency, the
head of the executive agency shall submit to the Committee on
Homeland Security and Governmental Affairs of the Senate and the
Committee on Oversight and Government Reform of the House of
Representatives a report on the exercise of the authority during
the preceding year and the reasons why the authority was exercised
in any instance.
(d) Authority of Comptroller General.--
(1) In general.--Except as provided in paragraph (2), each
contract awarded after using procedures other than sealed bid
procedures shall provide that the Comptroller General and
representatives of the Comptroller General may examine records of
the contractor, or any of its subcontractors, that directly pertain
to, and involve transactions relating to, the contract or
subcontract and to interview any current employee regarding the
transactions.
(2) Exception for foreign contractor or subcontractor.--Paragraph
(1) does not apply to a contract or subcontract with a foreign
contractor or foreign subcontractor if the executive agency
concerned determines, with the concurrence of the Comptroller
General or the designee of the Comptroller General, that applying
paragraph (1) to the contract or subcontract would not be in the
public interest. The concurrence of the Comptroller General or the
designee is not required when--
(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) Additional records not required.--Paragraph (1) does not
require a contractor or subcontractor to create or maintain a
record that the contractor or subcontractor does not maintain in
the ordinary course of business or pursuant to another law.
(e) Limitation on Audits Relating to Indirect Costs.--An executive
agency may not perform an audit of indirect costs under a contract,
subcontract, or modification before or after entering into the
contract, subcontract, or modification when the contracting officer
determines that the objectives of the audit can reasonably be met by
accepting the results of an audit that was conducted by another
department or agency of the Federal Government within one year
preceding the date of the contracting officer's determination.
(f) Expiration of Authority.--The authority of an executive agency
under subsection (b) and the authority of the Comptroller General under
subsection (d) shall expire 3 years after final payment under the
contract or subcontract.
(g) Inapplicability to Certain Contracts.--This section does not
apply to the following contracts:
(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) Electronic Form Allowed.--This section does not preclude a
contractor from duplicating or storing original records in electronic
form.
(i) Original Records Not Required.--An executive agency shall not
require a contractor or subcontractor to provide original records in an
audit carried out pursuant to this section if the contractor or
subcontractor provides photographic or electronic images of the
original records and meets the following requirements:
(1) Preservation procedures established.--The contractor or
subcontractor has established procedures to ensure that the imaging
process preserves the integrity, reliability, and security of the
original records.
(2) Indexing system maintained.--The contractor or subcontractor
maintains an effective indexing system to permit timely and
convenient access to the imaged records.
(3) Original records retained.--The contractor or subcontractor
retains the original records for a minimum of one year after
imaging to permit periodic validation of the imaging systems.
Sec. 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.
Sec. 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.
Sec. 4709. Implementation of electronic commerce capability
(a) Role of Head of Executive Agency.--The head of each executive
agency shall implement the electronic commerce capability required by
section 2301 of this title. In implementing the capability, the head of
an executive agency shall consult with the Administrator.
(b) Program Manager.--The head of each executive agency shall
designate a program manager to implement the electronic commerce
capability for the agency. The program manager reports directly to an
official at a level not lower than the senior procurement executive
designated for the agency under section 1702(c) of this title.
Sec. 4710. Limitations on tiering of subcontractors
(a) Definition.--In this section, the term ``executive agency'' has
the same meaning given in section 133 of this title.
(b) Regulations.--For executive agencies other than the Department of
Defense, the Federal Acquisition Regulation shall--
(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) Covered Contracts.--This section applies to any cost-
reimbursement type contract or task or delivery order in an amount
greater than the simplified acquisition threshold (as defined by
section 134 of this title).
(d) Rule of Construction.--Nothing in this section shall be construed
as limiting the ability of the Department of Defense to implement more
restrictive limitations on the tiering of subcontractors.
(e) Applicability.--The Department of Defense shall continue to be
subject to guidance on limitations on tiering of subcontractors issued
by the Department of Defense pursuant to section 852 of the John Warner
National Defense Authorization Act for Fiscal Year 2007 (Public Law
109-364, 10 U.S.C. 2324 note).
Sec. 4711. Linking of award and incentive fees to acquisition outcomes
(a) Definition.--In this section, the term ``executive agency'' has
the same meaning given in section 133 of this title.
(b) Guidance for Executive Agencies on Linking of Award and Incentive
Fees to Acquisition Outcomes.--The Federal Acquisition Regulation shall
provide executive agencies other than the Department of Defense with
instructions, including definitions, on the appropriate use of award
and incentive fees in Federal acquisition programs.
(c) Elements.--The regulations under subsection (b) shall--
(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) Guidance for Department of Defense.--The Department of Defense
shall continue to be subject to guidance on award and incentive fees
issued by the Secretary of Defense pursuant to section 814 of the John
Warner National Defense Authorization Act for Fiscal Year 2007 (Public
Law 109-364, 10 U.S.C. 2302 note).
Subtitle II--Other Advertising and Contract Provisions
Chapter Sec.
Advertising.........................................................6101
General Contract Provisions.........................................6301
Contracts for Materials, Supplies, Articles, and Equipment Exceeding
$10,000.............................................................6501
Service Contract Labor Standards....................................6701
CHAPTER 61--ADVERTISING
Sec.
6101. Advertising requirement for Federal Government purchases and
sales.
6102. Exceptions from advertising requirement.
6103. Opening of bids.
Sec. 6101. Advertising requirement for Federal Government purchases and
sales
(a) Definitions.--In this section--
(1) Appropriation.--The term ``appropriation'' includes amounts
made available by legislation under section 9104 of title 31.
(2) Federal government.--The term ``Federal Government'' includes
the government of the District of Columbia.
(b) Purchases.--
(1) In general.--Unless otherwise provided in the appropriation
concerned or other law, purchases and contracts for supplies or
services for the Federal Government may be made or entered into
only after advertising for proposals for a sufficient time.
(2) Limitations on applicability.--Paragraph (1) does not apply
when--
(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) Sales.--Except when otherwise authorized by law or when the
reasonable value involved in any one case does not exceed $500, sales
and contracts of sale by the Federal Government are governed by the
requirements of this section for advertising.
(d) Application to Wholly Owned Government Corporations.--For wholly
owned Government corporations, this section applies only to
administrative transactions.
Sec. 6102. Exceptions from advertising requirement
(a) American Battle Monuments Commission.--Section 6101 of this title
does not apply to the American Battle Monuments Commission with respect
to leases in foreign countries for office or garage space.
(b) Bureau of Interparliamentary Union for Promotion of International
Arbitration.--Section 6101 of this title does not apply to the Bureau
of Interparliamentary Union for Promotion of International Arbitration
with respect to necessary stenographic reporting services by contract.
(c) Department of State.--Section 6101 of this title does not apply
to the Department of State when the purchase or service relates to the
packing of personal and household effects of Diplomatic, Consular, and
Foreign Service officers and clerks for foreign shipment.
(d) International Committee of Aerial Legal Experts.--Section 6101 of
this title does not apply to the International Committee of Aerial
Legal Experts with respect to necessary stenographic and other services
by contract.
(e) Architect of the Capitol.--The purchase of supplies and equipment
and the procurement of services for all branches under the Architect of
the Capitol may be made in the open market according to common business
practice, without compliance with section 6101 of this title, when the
aggregate amount of the purchase or the service does not exceed $25,000
in any instance.
(f) Forest Products From Indian Reservations.--Lumber and other
forest products produced by Indian enterprises from forests on Indian
reservations may be sold under regulations the Secretary of the
Interior prescribes, without compliance with section 6101 of this
title.
(g) House of Representatives.--Section 6101 of this title does not
apply to purchases and contracts for supplies or services for any
office of the House of Representatives.
(h) Congressional Budget Office.--The Director of the Congressional
Budget Office may enter into agreements or contracts without regard to
section 6101 of this title.
Sec. 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.
CHAPTER 63--GENERAL CONTRACT PROVISIONS
Sec.
6301. Authorization requirement.
6302. Contracts for fuel made by Secretary of the Army.
6303. Certain contracts limited to appropriated amounts.
6304. Certain contracts limited to one-year term.
6305. Prohibition on transfer of contract and certain allowable
assignments.
6306. Prohibition on Members of Congress making contracts with Federal
Government.
6307. Contracts with Federal Government-owned establishments and
availability of appropriations.
6308. Contracts for transportation of Federal Government securities.
6309. Honorable discharge certificate in lieu of birth certificate.
Sec. 6301. Authorization requirement
(a) In General.--A contract or purchase on behalf of the Federal
Government shall not be made unless the contract or purchase is
authorized by law or is under an appropriation adequate to its
fulfillment.
(b) Exception.--
(1) Definition.--In this subsection, the term ``defined
Secretary'' means--
(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) In general.--Subsection (a) does not apply to a contract or
purchase made by a defined Secretary for clothing, subsistence,
forage, fuel, quarters, transportation, or medical and hospital
supplies.
(3) Current year limitation.--A contract or purchase made by a
defined Secretary under this subsection may not exceed the
necessities of the current year.
(4) Reports.--The defined Secretary shall immediately advise
Congress when authority is exercised under this subsection. The
defined Secretary shall report quarterly on the estimated
obligations incurred pursuant to the authority granted in this
subsection.
(c) Special Rule for Purchase of Land.--Land may not be purchased by
the Federal Government unless the purchase is authorized by law.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 6305. Prohibition on transfer of contract and certain allowable
assignments
(a) General Prohibition on Transfer of Contracts.--The party to whom
the Federal Government gives a contract or order may not transfer the
contract or order, or any interest in the contract or order, to another
party. A purported transfer in violation of this subsection annuls the
contract or order so far as the Federal Government is concerned, except
that all rights of action for breach of contract are reserved to the
Federal Government.
(b) Assignment.--
(1) In general.--Notwithstanding subsection (a) and in accordance
with the requirements of this subsection, amounts due from the
Federal Government under a contract may be assigned to a bank,
trust company, Federal lending agency, or other financing
institution.
(2) Minimum amount.--This subsection applies only to a contract
under which the aggregate amounts due from the Federal Government
total at least $1,000.
(3) Accord with contract terms.--Assignment may not be made under
this subsection if the contract forbids the assignment.
(4) Full balance due.--Unless otherwise expressly permitted by
the contract, an assignment under this subsection must cover the
balance of all amounts due from the Federal Government under the
contract.
(5) Single assignment.--Unless otherwise expressly permitted by
the contract, an assignment under this subsection may not be made
to more than one party or be subject to further assignment, except
that assignment may be made to one party as agent or trustee for 2
or more parties participating in the financing.
(6) Written notice.--The assignee of an assignment under this
subsection shall file written notice of the assignment and a true
copy of the instrument of assignment with--
(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) Validity.--Notwithstanding any law to the contrary governing
the validity of assignments, an assignment under this subsection is
a valid assignment for all purposes.
(8) No refund to cover assignor's liability.--The assignee of an
assignment under this subsection is not liable to make any refund
to the Federal Government because of an assignor's liability to the
Federal Government, whether that liability arises from the contract
or independently.
(9) Avoiding reduction or setoff with certain contracts.--
(A) Contract provision.--A contract of the Department of
Defense, the General Services Administration, the Department of
Energy, or another department or agency of the Federal
Government designated by the President may, on a determination
of need by the President, provide or be amended without
consideration to provide that payments made to an assignee
under the contract are not subject to reduction or setoff. Each
determination of need by the President under this subparagraph
shall be published in the Federal Register.
(B) Carrying out contract provision.--When a ``no reduction
or setoff'' provision as described in subparagraph (A) is
included in a contract, payments to the assignee are not
subject to reduction or setoff for an assignor's liability
arising--
(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) Limitation.--Subparagraph (B)(iv) does not apply to
amounts which may be collected or withheld from the assignor in
accordance with or for failure to comply with the terms of the
contract.
Sec. 6306. Prohibition on Members of Congress making contracts with
Federal Government
(a) In General.--A Member of Congress may not enter into or benefit
from a contract or agreement or any part of a contract or agreement
with the Federal Government.
(b) Exemptions.--
(1) In general.--Subsection (a) does not apply to contracts that
the Secretary of Agriculture may enter into with farmers.
(2) Certain acts.--Subsection (a) does not apply to a contract
entered into under--
(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) Public record.--An exemption under this subsection shall be
made a matter of public record.
Sec. 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.
Sec. 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.
Sec. 6309. Honorable discharge certificate in lieu of birth certificate
(a) In General.--An employer described in subsection (b) may not deny
employment, on account of failure to produce a birth certificate, to an
individual who submits, in lieu of the birth certificate, an honorable
discharge certificate (or certificate issued in lieu of an honorable
discharge certificate) from the Army, Air Force, Navy, Marine Corps, or
Coast Guard of the United States, unless the honorable discharge
certificate shows on its face that the individual may have been an
alien at the time of its issuance.
(b) Employers to Which Section Applies.--An employer referred to in
subsection (a) is an employer--
(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.
CHAPTER 65--CONTRACTS FOR MATERIALS, SUPPLIES, ARTICLES, AND EQUIPMENT
EXCEEDING $10,000
Sec.
6501. Definitions.
6502. Required contract terms.
6503. Breach or violation of required contract terms.
6504. Three-year prohibition on new contracts in case of breach or
violation.
6505. Exclusions.
6506. Administrative provisions.
6507. Hearing authority and procedures.
6508. Authority to make exceptions.
6509. Other procedures.
6510. Manufacturers and regular dealers.
6511. Effect on other law.
Sec. 6501. Definitions
In this chapter--
(1) Agency of the united states.--The term ``agency of the United
States'' means an executive department, independent establishment,
or other agency or instrumentality of the United States, the
District of Columbia, or a corporation in which all stock is
beneficially owned by the Federal Government.
(2) Person.--The term ``person'' includes one or more
individuals, partnerships, associations, corporations, legal
representatives, trustees, trustees in cases under title 11, or
receivers.
(3) Secretary.--The term ``Secretary'' means the Secretary of
Labor.
Sec. 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) Minimum wages to be paid.--All individuals employed by the
contractor in the manufacture or furnishing of materials, supplies,
articles, or equipment under the contract will be paid, without
subsequent deduction or rebate on any account, not less than the
prevailing minimum wages, as determined by the Secretary, for
individuals employed in similar work or in the particular or
similar industries or groups of industries currently operating in
the locality in which the materials, supplies, articles, or
equipment are to be manufactured or furnished under the contract,
except that this paragraph applies only to purchases or contracts
relating to industries that have been the subject matter of a
determination by the Secretary.
(2) Maximum number of hours to be worked in a week.--No
individual employed by the contractor in the manufacture or
furnishing of materials, supplies, articles, or equipment under the
contract shall be permitted to work in excess of 40 hours in any
one week, except that this paragraph does not apply to an employer
who has entered into an agreement with employees pursuant to
paragraph (1) or (2) of section 7(b) of the Fair Labor Standards
Act of 1938 (29 U.S.C. 207(b)(1) or (2)).
(3) Ineligible employees.--No individual under 16 years of age
and no incarcerated individual will be employed by the contractor
in the manufacture or furnishing of materials, supplies, articles,
or equipment under the contract, except that this section, or other
law or executive order containing similar prohibitions against the
purchase of goods by the Federal Government, does not apply to
convict labor that satisfies the conditions of section 1761(c) of
title 18.
(4) Standards of places and working conditions where contract
performed.--No part of the contract will be performed, and no
materials, supplies, articles, or equipment will be manufactured or
fabricated under the contract, in plants, factories, buildings, or
surroundings, or under working conditions, that are unsanitary,
hazardous, or dangerous to the health and safety of employees
engaged in the performance of the contract. Compliance with the
safety, sanitary, and factory inspection laws of the State in which
the work or part of the work is to be performed is prima facie
evidence of compliance with this paragraph.
Sec. 6503. Breach or violation of required contract terms
(a) Applicable Breach or Violation.--This section applies in case of
breach or violation of a representation or stipulation included in a
contract under section 6502 of this title.
(b) Liquidated Damages.--In addition to damages for any other breach
of the contract, the party responsible for a breach or violation
described in subsection (a) is liable to the Federal Government for the
following liquidated damages:
(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) Cancellation and Alternative Completion.--In addition to the
Federal Government being entitled to damages described in subsection
(b), the agency of the United States that made the contract may cancel
the contract and make open-market purchases or make other contracts for
the completion of the original contract, charging any additional cost
to the original contractor.
(d) Recovery of Amounts Due.--An amount due the Federal Government
because of a breach or violation described in subsection (a) may be
withheld from any amounts owed the contractor under any contract under
section 6502 of this title or may be recovered in a suit brought by the
Attorney General.
(e) Employee Reimbursement for Underpayment of Wages.--An amount
withheld or recovered under subsection (d) that is based on an
underpayment of wages as described in subsection (b)(2) shall be held
in a special deposit account. On order of the Secretary, the amount
shall be paid directly to the underpaid employee on whose account the
amount was withheld or recovered. However, an employee's claim for
payment under this subsection may be entertained only if made within
one year from the date of actual notice to the contractor of the
withholding or recovery.
Sec. 6504. Three-year prohibition on new contracts in case of breach or
violation
(a) Distribution of List.--The Comptroller General shall distribute
to each agency of the United States a list containing the names of
persons found by the Secretary to have breached or violated a
representation or stipulation included in a contract under section 6502
of this title.
(b) Three-Year Prohibition.--Unless the Secretary recommends
otherwise, a contract described in section 6502 of this title may not
be awarded to a person named on the list under subsection (a), or to a
firm, corporation, partnership, or association in which the person has
a controlling interest, until 3 years have elapsed from the date of the
determination by the Secretary that a breach or violation occurred.
Sec. 6505. Exclusions
(a) Items Available in the Open Market.--This chapter does not apply
to the purchase of materials, supplies, articles, or equipment that may
usually be bought in the open market.
(b) Perishables and Agricultural Products.--This chapter does not
apply to any of the following:
(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) Carriage of Freight or Personnel.--This chapter may not be
construed to apply to--
(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.).
Sec. 6506. Administrative provisions
(a) In General.--The Secretary shall administer this chapter.
(b) Regulations.--The Secretary may make, amend, and rescind
regulations as necessary to carry out this chapter.
(c) Use of Government Officers and Employees.--The Secretary shall
use Federal officers and employees and, with a State's consent, State
and local officers and employees as the Secretary finds necessary to
assist in the administration of this chapter.
(d) Appointments.--The Secretary shall appoint an administrative
officer and attorneys, experts, and other employees from time to time
as the Secretary finds necessary for the administration of this
chapter. The appointments are subject to chapter 51 and subchapter III
of chapter 53 of title 5 and other law applicable to the employment and
compensation of officers and employees of the Federal Government.
(e) Investigations.--The Secretary, or an authorized representative
of the Secretary, may make investigations and findings as provided in
this chapter and may, in any part of the United States, prosecute an
inquiry necessary to carry out this chapter.
Sec. 6507. Hearing authority and procedures
(a) Record and Hearing Requirements for Wage Determinations.--A wage
determination under section 6502(1) of this title shall be made on the
record after opportunity for a hearing.
(b) Authority To Hold Hearings.--The Secretary or an impartial
representative designated by the Secretary may hold hearings when there
is a complaint of breach or violation of a representation or
stipulation included in a contract under section 6502 of this title.
The Secretary may initiate hearings on the Secretary's own motion or on
the application of a person affected by the ruling of an agency of the
United States relating to a proposal or contract under this chapter.
(c) Orders To Compel Testimony.--The Secretary or an impartial
representative designated by the Secretary may issue orders requiring
witnesses to attend hearings held under this section and to produce
evidence and testify under oath. Witnesses shall be paid fees and
mileage at the same rates as witnesses in courts of the United States.
(d) Enforcement of Orders.--If a person refuses or fails to obey an
order issued under subsection (c), the Secretary or an impartial
representative designated by the Secretary may bring an action to
enforce the order in a district court of the United States or in the
district court of a territory or possession of the United States. A
court has jurisdiction to enforce the order if the inquiry is being
carried out within the court's judicial district or if the person is
found or resides or transacts business within the court's judicial
district. The court may issue an order requiring the person to obey the
order issued under subsection (c), and the court may punish any further
refusal or failure as contempt of court.
(e) Findings of Fact.--After notice and a hearing, the Secretary or
an impartial representative designated by the Secretary shall make
findings of fact. The findings are conclusive for agencies of the
United States. If supported by a preponderance of the evidence, the
findings are conclusive in any court of the United States.
(f) Decisions.--The Secretary or an impartial representative
designated by the Secretary may make decisions, based on findings of
fact, that are considered necessary to enforce this chapter.
Sec. 6508. Authority to make exceptions
(a) Duty of the Secretary To Make Exceptions.--When the head of an
agency of the United States makes a written finding that the inclusion
of representations or stipulations under section 6502 of this title in
a proposal or contract will seriously impair the conduct of Federal
Government business, the Secretary shall make exceptions, in specific
cases or otherwise, when justice or the public interest will be served.
(b) Authority of the Secretary To Modify Existing Contracts.--When an
agency of the United States and a contractor jointly recommend, the
Secretary may modify the terms of an existing contract with respect to
minimum wages and maximum hours of labor as the Secretary finds
necessary and proper in the public interest or to prevent injustice and
undue hardship.
(c) Authority of the Secretary To Allow Limitations, Variations,
Tolerances, and Exemptions.--The Secretary may provide reasonable
limitations and may prescribe regulations to allow reasonable
variations, tolerances, and exemptions in the application of this
chapter to contractors, including with respect to minimum wages and
maximum hours of labor.
(d) Rate of Pay for Overtime.--When the Secretary permits an increase
in the maximum hours of labor stipulated in a contract, the Secretary
shall set a rate of pay for overtime. The overtime rate must be at
least one and one-half times the basic hourly rate.
(e) Authority of the President To Suspend.--The President may suspend
any of the representations and stipulations contained in section 6502
of this title whenever, in the President's judgment, suspension is in
the public interest.
Sec. 6509. Other procedures
(a) Applicability of Certain Administrative Provisions.--
Notwithstanding section 553 of title 5, subchapter II of chapter 5 and
chapter 7 of title 5 are applicable in the administration of sections
6501 to 6507 and 6511 of this title.
(b) Judicial Review in General.--Notwithstanding the inclusion of
representations and stipulations in a contract under section 6502 of
this title, an interested person has the right of judicial review of
any legal question which might otherwise be raised, including wage
determinations and the interpretation of the terms ``locality'' and
``open market''.
(c) Judicial Review of Wage Determinations.--A person adversely
affected or aggrieved by a wage determination under section 6502(1) of
this title has the right of judicial review of the determination, or of
the applicability of the determination, within 90 days after the
determination is made, in the manner provided by chapter 7 of title 5.
A person adversely affected or aggrieved by a wage determination is
deemed to include a person in an industry to which the determination
applies that is a supplier of materials, supplies, articles, or
equipment that are purchased or intended to be purchased by the Federal
Government from any source.
Sec. 6510. Manufacturers and regular dealers
(a) Prescribing Standards.--The Secretary may prescribe, in
regulations, standards for determining whether a contractor is a
manufacturer or regular dealer with respect to materials, supplies,
articles, or equipment to be manufactured or furnished under, or used
in the performance of, a contract entered into by an agency of the
United States.
(b) Judicial Review.--An interested person has the right of judicial
review of any legal question relating to interpretation of the terms
``regular dealer'' and ``manufacturer'' as defined pursuant to
subsection (a).
Sec. 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.
CHAPTER 67--SERVICE CONTRACT LABOR STANDARDS
Sec.
6701. Definitions.
6702. Contracts to which this chapter applies.
6703. Required contract terms.
6704. Limitation on minimum wage.
6705. Violations.
6706. Three-year prohibition on new contracts in case of violation.
6707. Enforcement and administration of chapter.
Sec. 6701. Definitions
In this chapter:
(1) Compensation.--The term ``compensation'' means any of the
payments or fringe benefits described in section 6703 of this
title.
(2) Secretary.--The term ``Secretary'' means the Secretary of
Labor.
(3) Service employee.--The term ``service employee''--
(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) United states.--The term ``United States''--
(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. Sec. 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.
Sec. 6702. Contracts to which this chapter applies
(a) In General.--Except as provided in subsection (b), this chapter
applies to any contract or bid specification for a contract, whether
negotiated or advertised, that--
(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) Exemptions.--This chapter does not apply to--
(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.
Sec. 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) Minimum wage.--The contract and bid specification shall
contain a provision specifying the minimum wage to be paid to each
class of service employee engaged in the performance of the
contract or any subcontract, as determined by the Secretary or the
Secretary's authorized representative, in accordance with
prevailing rates in the locality, or, where a collective-bargaining
agreement covers the service employees, in accordance with the
rates provided for in the agreement, including prospective wage
increases provided for in the agreement as a result of arm's length
negotiations. In any case the minimum wage may not be less than the
minimum wage specified in section 6704 of this title.
(2) Fringe benefits.--The contract and bid specification shall
contain a provision specifying the fringe benefits to be provided
to each class of service employee engaged in the performance of the
contract or any subcontract, as determined by the Secretary or the
Secretary's authorized representative to be prevailing in the
locality, or, where a collective-bargaining agreement covers the
service employees, to be provided for under the agreement,
including prospective fringe benefit increases provided for in the
agreement as a result of arm's-length negotiations. The fringe
benefits shall include medical or hospital care, pensions on
retirement or death, compensation for injuries or illness resulting
from occupational activity, or insurance to provide any of the
foregoing, unemployment benefits, life insurance, disability and
sickness insurance, accident insurance, vacation and holiday pay,
costs of apprenticeship or other similar programs and other bona
fide fringe benefits not otherwise required by Federal, State, or
local law to be provided by the contractor or subcontractor. The
obligation under this paragraph may be discharged by furnishing any
equivalent combinations of fringe benefits or by making equivalent
or differential payments in cash under regulations established by
the Secretary.
(3) Working conditions.--The contract and bid specification shall
contain a provision specifying that no part of the services covered
by this chapter may be performed in buildings or surroundings or
under working conditions, provided by or under the control or
supervision of the contractor or any subcontractor, which are
unsanitary or hazardous or dangerous to the health or safety of
service employees engaged to provide the services.
(4) Notice.--The contract and bid specification shall contain a
provision specifying that on the date a service employee begins
work on a contract to which this chapter applies, the contractor or
subcontractor will deliver to the employee a notice of the
compensation required under paragraphs (1) and (2), on a form
prepared by the Federal agency, or will post a notice of the
required compensation in a prominent place at the worksite.
(5) General schedule pay rates and prevailing rate systems.--The
contract and bid specification shall contain a statement of the
rates that would be paid by the Federal agency to each class of
service employee if section 5332 or 5341 of title 5 were applicable
to them. The Secretary shall give due consideration to these rates
in making the wage and fringe benefit determinations specified in
this section.
Sec. 6704. Limitation on minimum wage
(a) In General.--A contractor that makes a contract with the Federal
Government, the principal purpose of which is to furnish services
through the use of service employees, and any subcontractor, may not
pay less than the minimum wage specified under section 6(a)(1) of the
Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1)) to an employee
engaged in performing work on the contract.
(b) Violations.--Sections 6705 to 6707(d) of this title are
applicable to a violation of this section.
Sec. 6705. Violations
(a) Liability of Responsible Party.--A party responsible for a
violation of a contract provision required under section 6703(1) or (2)
of this title or a violation of section 6704 of this title is liable
for an amount equal to the sum of any deduction, rebate, refund, or
underpayment of compensation due any employee engaged in the
performance of the contract.
(b) Recovery of Amounts Underpaid to Employees.--
(1) Withholding accrued payments due on contracts.--The total
amount determined under subsection (a) to be due any employee
engaged in the performance of a contract may be withheld from
accrued payments due on the contract or on any other contract
between the same contractor and the Federal Government. The amount
withheld shall be held in a deposit fund. On order of the
Secretary, the compensation found by the Secretary or the head of a
Federal agency to be due an underpaid employee pursuant to this
chapter shall be paid from the deposit fund directly to the
underpaid employee.
(2) Bringing actions against contractors.--If the accrued
payments withheld under the terms of the contract are insufficient
to reimburse a service employee with respect to whom there has been
a failure to pay the compensation required pursuant to this
chapter, the Federal Government may bring action against the
contractor, subcontractor, or any sureties in any court of
competent jurisdiction to recover the remaining amount of
underpayment. Any amount recovered shall be held in the deposit
fund and shall be paid, on order of the Secretary, directly to the
underpaid employee. Any amount not paid to an employee because of
inability to do so within 3 years shall be covered into the
Treasury as miscellaneous receipts.
(c) Cancellation and Alternative Completion.--In addition to other
actions in accordance with this section, when a violation of any
contract stipulation is found, the Federal agency that made the
contract may cancel the contract on written notice to the original
contractor. The Federal Government may then make other contracts or
arrangements for the completion of the original contract, charging any
additional cost to the original contractor.
(d) Enforcement of Section.--In accordance with regulations
prescribed pursuant to section 6707(a)-(d) of this title, the Secretary
or the head of a Federal agency may carry out this section.
Sec. 6706. Three-year prohibition on new contracts in case of violation
(a) Distribution of List.--The Comptroller General shall distribute
to each agency of the Federal Government a list containing the names of
persons or firms that a Federal agency or the Secretary has found to
have violated this chapter.
(b) Three-Year Prohibition.--Unless the Secretary recommends
otherwise because of unusual circumstances, a Federal Government
contract may not be awarded to a person or firm named on the list under
subsection (a), or to an entity in which the person or firm has a
substantial interest, until 3 years have elapsed from the date of
publication of the list. If the Secretary does not recommend otherwise
because of unusual circumstances, the Secretary shall, not later than
90 days after a hearing examiner has made a finding of a violation of
this chapter, forward to the Comptroller General the name of the person
or firm found to have violated this chapter.
Sec. 6707. Enforcement and administration of chapter
(a) Enforcement of Chapter.--Sections 6506 and 6507 of this title
govern the Secretary's authority to enforce this chapter, including the
Secretary's authority to prescribe regulations, issue orders, hold
hearings, make decisions based on findings of fact, and take other
appropriate action under this chapter.
(b) Limitations and Regulations for Variations, Tolerances, and
Exemptions.--The Secretary may provide reasonable limitations and may
prescribe regulations allowing reasonable variation, tolerances, and
exemptions with respect to this chapter (other than subsection (f)),
but only in special circumstances where the Secretary determines that
the limitation, variation, tolerance, or exemption is necessary and
proper in the public interest or to avoid the serious impairment of
Federal Government business, and is in accord with the remedial purpose
of this chapter to protect prevailing labor standards.
(c) Preservation of Wages and Benefits Due Under Predecessor
Contracts.--
(1) In general.--Under a contract which succeeds a contract
subject to this chapter, and under which substantially the same
services are furnished, a contractor or subcontractor may not pay a
service employee less than the wages and fringe benefits the
service employee would have received under the predecessor
contract, including accrued wages and fringe benefits and any
prospective increases in wages and fringe benefits provided for in
a collective-bargaining agreement as a result of arm's-length
negotiations.
(2) Exception.--This subsection does not apply if the Secretary
finds after a hearing in accordance with regulations adopted by the
Secretary that wages and fringe benefits under the predecessor
contract are substantially at variance with wages and fringe
benefits prevailing in the same locality for services of a similar
character.
(d) Duration of Contracts.--Subject to limitations in annual
appropriation acts but notwithstanding any other law, a contract to
which this chapter applies may, if authorized by the Secretary, be for
any term of years not exceeding 5, if the contract provides for
periodic adjustment of wages and fringe benefits pursuant to future
determinations, issued in the manner prescribed in section 6703 of this
title at least once every 2 years during the term of the contract,
covering each class of service employee.
(e) Exclusion of Fringe Benefit Payments in Determining Overtime
Pay.--In determining any overtime pay to which a service employee is
entitled under Federal law, the regular or basic hourly rate of pay of
the service employee does not include any fringe benefit payments
computed under this chapter which are excluded from the definition of
``regular rate'' under section 7(e) of the Fair Labor Standards Act of
1938 (29 U.S.C. 207(e)).
(f) Timeliness of Wage and Fringe Benefit Determinations.--It is the
intent of Congress that determinations of minimum wages and fringe
benefits under section 6703(1) and (2) of this title should be made as
soon as administratively feasible for all contracts subject to this
chapter. In any event, the Secretary shall at least make the
determinations for contracts under which more than 5 service employees
are to be employed.
Subtitle III--Contract Disputes
Chapter Sec.
Contract Disputes...................................................7101
CHAPTER 71--CONTRACT DISPUTES
Sec.
7101. Definitions.
7102. Applicability of chapter.
7103. Decision by contracting officer.
7104. Contractor's right of appeal from decision by contracting
officer.
7105. Agency boards.
7106. Agency board procedures for accelerated and small claims.
7107. Judicial review of agency board decisions.
7108. Payment of claims.
7109. Interest.
Sec. 7101. Definitions
In this chapter:
(1) Administrator.--The term ``Administrator'' means the
Administrator for Federal Procurement Policy appointed pursuant to
section 1102 of this title.
(2) Agency board or agency board of contract appeals.--The term
``agency board'' or ``agency board of contract appeals'' means--
(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) Agency head.--The term ``agency head'' means the head and any
assistant head of an executive agency. The term may include the
chief official of a principal division of an executive agency if
the head of the executive agency so designates that chief official.
(4) Armed services board.--The term ``Armed Services Board''
means the Armed Services Board of Contract Appeals established
under section 7105(a)(1) of this title.
(5) Civilian board.--The term ``Civilian Board'' means the
Civilian Board of Contract Appeals established under section
7105(b)(1) of this title.
(6) Contracting officer.--The term ``contracting officer''--
(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) Contractor.--The term ``contractor'' means a party to a
Federal Government contract other than the Federal Government.
(8) Executive agency.--The term ``executive agency'' means--
(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) Misrepresentation of fact.--The term ``misrepresentation of
fact'' means a false statement of substantive fact, or conduct that
leads to a belief of a substantive fact material to proper
understanding of the matter in hand, made with intent to deceive or
mislead.
Sec. 7102. Applicability of chapter
(a) Executive Agency Contracts.--Unless otherwise specifically
provided in this chapter, this chapter applies to any express or
implied contract (including those of the nonappropriated fund
activities described in sections 1346 and 1491 of title 28) made by an
executive agency for--
(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) Tennessee Valley Authority Contracts.--
(1) In general.--With respect to contracts of the Tennessee
Valley Authority, this chapter applies only to contracts containing
a clause that requires contract disputes to be resolved through an
agency administrative process.
(2) Exclusion.--Notwithstanding any other provision of this
chapter, this chapter does not apply to a contract of the Tennessee
Valley Authority for the sale of fertilizer or electric power or
related to the conduct or operation of the electric power system.
(c) Foreign Government or International Organization Contracts.--If
an agency head determines that applying this chapter would not be in
the public interest, this chapter does not apply to a contract with a
foreign government, an agency of a foreign government, an international
organization, or a subsidiary body of an international organization.
(d) Maritime Contracts.--Appeals under section 7107(a) of this title
and actions brought under sections 7104(b) and 7107(b) to (f) of this
title, arising out of maritime contracts, are governed by chapter 309
or 311 of title 46, as applicable, to the extent that those chapters
are not inconsistent with this chapter.
Sec. 7103. Decision by contracting officer
(a) Claims Generally.--
(1) Submission of contractor's claims to contracting officer.--
Each claim by a contractor against the Federal Government relating
to a contract shall be submitted to the contracting officer for a
decision.
(2) Contractor's claims in writing.--Each claim by a contractor
against the Federal Government relating to a contract shall be in
writing.
(3) Contracting officer to decide federal government's claims.--
Each claim by the Federal Government against a contractor relating
to a contract shall be the subject of a written decision by the
contracting officer.
(4) Time for submitting claims.--
(A) In general.--Each claim by a contractor against the
Federal Government relating to a contract and each claim by the
Federal Government against a contractor relating to a contract
shall be submitted within 6 years after the accrual of the
claim.
(B) Exception.--Subparagraph (A) of this paragraph does not
apply to a claim by the Federal Government against a contractor
that is based on a claim by the contractor involving fraud.
(5) Applicability.--The authority of this subsection and
subsections (c)(1), (d), and (e) does not extend to a claim or
dispute for penalties or forfeitures prescribed by statute or
regulation that another Federal agency is specifically authorized
to administer, settle, or determine.
(b) Certification of Claims.--
(1) Requirement generally.--For claims of more than $100,000 made
by a contractor, the contractor shall certify that--
(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) Who may execute certification.--The certification required by
paragraph (1) may be executed by an individual authorized to bind
the contractor with respect to the claim.
(3) Failure to certify or defective certification.--A contracting
officer is not obligated to render a final decision on a claim of
more than $100,000 that is not certified in accordance with
paragraph (1) if, within 60 days after receipt of the claim, the
contracting officer notifies the contractor in writing of the
reasons why any attempted certification was found to be defective.
A defect in the certification of a claim does not deprive a court
or an agency board of jurisdiction over the claim. Prior to the
entry of a final judgment by a court or a decision by an agency
board, the court or agency board shall require a defective
certification to be corrected.
(c) Fraudulent Claims.--
(1) No authority to settle.--This section does not authorize an
agency head to settle, compromise, pay, or otherwise adjust any
claim involving fraud.
(2) Liability of contractor.--If a contractor is unable to
support any part of the contractor's claim and it is determined
that the inability is attributable to a misrepresentation of fact
or fraud by the contractor, then the contractor is liable to the
Federal Government for an amount equal to the unsupported part of
the claim plus all of the Federal Government's costs attributable
to reviewing the unsupported part of the claim. Liability under
this paragraph shall be determined within 6 years of the commission
of the misrepresentation of fact or fraud.
(d) Issuance of Decision.--The contracting officer shall issue a
decision in writing and shall mail or otherwise furnish a copy of the
decision to the contractor.
(e) Contents of Decision.--The contracting officer's decision shall
state the reasons for the decision reached and shall inform the
contractor of the contractor's rights as provided in this chapter.
Specific findings of fact are not required. If made, specific findings
of fact are not binding in any subsequent proceeding.
(f) Time for Issuance of Decision.--
(1) Claim of $100,000 or less.--A contracting officer shall issue
a decision on any submitted claim of $100,000 or less within 60
days from the contracting officer's receipt of a written request
from the contractor that a decision be rendered within that period.
(2) Claim of more than $100,000.--A contracting officer shall,
within 60 days of receipt of a submitted certified claim over
$100,000--
(A) issue a decision; or
(B) notify the contractor of the time within which a decision
will be issued.
(3) General requirement of reasonableness.--The decision of a
contracting officer on submitted claims shall be issued within a
reasonable time, in accordance with regulations prescribed by the
agency, taking into account such factors as the size and complexity
of the claim and the adequacy of information in support of the
claim provided by the contractor.
(4) Requesting tribunal to direct issuance within specified time
period.--A contractor may request the tribunal concerned to direct
a contracting officer to issue a decision in a specified period of
time, as determined by the tribunal concerned, in the event of
undue delay on the part of the contracting officer.
(5) Failure to issue decision within required time period.--
Failure by a contracting officer to issue a decision on a claim
within the required time period is deemed to be a decision by the
contracting officer denying the claim and authorizes an appeal or
action on the claim as otherwise provided in this chapter. However,
the tribunal concerned may, at its option, stay the proceedings of
the appeal or action to obtain a decision by the contracting
officer.
(g) Finality of Decision Unless Appealed.--The contracting officer's
decision on a claim is final and conclusive and is not subject to
review by any forum, tribunal, or Federal Government agency, unless an
appeal or action is timely commenced as authorized by this chapter.
This chapter does not prohibit an executive agency from including a
clause in a Federal Government contract requiring that, pending final
decision of an appeal, action, or final settlement, a contractor shall
proceed diligently with performance of the contract in accordance with
the contracting officer's decision.
(h) Alternative Means of Dispute Resolution.--
(1) In general.--Notwithstanding any other provision of this
chapter, a contractor and a contracting officer may use any
alternative means of dispute resolution under subchapter IV of
chapter 5 of title 5, or other mutually agreeable procedures, for
resolving claims. All provisions of subchapter IV of chapter 5 of
title 5 apply to alternative means of dispute resolution under this
subsection.
(2) Certification of claim.--The contractor shall certify the
claim when required to do so under subsection (b)(1) or other law.
(3) Rejecting request for alternative dispute resolution.--
(A) Contracting officer.--A contracting officer who rejects a
contractor's request for alternative dispute resolution
proceedings shall provide the contractor with a written
explanation, citing one or more of the conditions in section
572(b) of title 5 or other specific reasons that alternative
dispute resolution procedures are inappropriate.
(B) Contractor.--A contractor that rejects an agency's
request for alternative dispute resolution proceedings shall
inform the agency in writing of the contractor's specific
reasons for rejecting the request.
Sec. 7104. Contractor's right of appeal from decision by contracting
officer
(a) Appeal to Agency Board.--A contractor, within 90 days from the
date of receipt of a contracting officer's decision under section 7103
of this title, may appeal the decision to an agency board as provided
in section 7105 of this title.
(b) Bringing an Action De Novo in Federal Court.--
(1) In general.--Except as provided in paragraph (2), and in lieu
of appealing the decision of a contracting officer under section
7103 of this title to an agency board, a contractor may bring an
action directly on the claim in the United States Court of Federal
Claims, notwithstanding any contract provision, regulation, or rule
of law to the contrary.
(2) Tennessee valley authority.--In the case of an action against
the Tennessee Valley Authority, the contractor may only bring an
action directly on the claim in a district court of the United
States pursuant to section 1337 of title 28, notwithstanding any
contract provision, regulation, or rule of law to the contrary.
(3) Time for filing.--A contractor shall file any action under
paragraph (1) or (2) within 12 months from the date of receipt of a
contracting officer's decision under section 7103 of this title.
(4) De novo.--An action under paragraph (1) or (2) shall proceed
de novo in accordance with the rules of the appropriate court.
Sec. 7105. Agency boards
(a) Armed Services Board.--
(1) Establishment.--An Armed Services Board of Contract Appeals
may be established within the Department of Defense when the
Secretary of Defense, after consultation with the Administrator,
determines from a workload study that the volume of contract claims
justifies the establishment of a full-time agency board of at least
3 members who shall have no other inconsistent duties. Workload
studies will be updated at least once every 3 years and submitted
to the Administrator.
(2) Appointment of members and compensation.--Members of the
Armed Services Board shall be selected and appointed in the same
manner as administrative law judges appointed pursuant to section
3105 of title 5, with an additional requirement that members must
have had at least 5 years of experience in public contract law. The
Secretary of Defense shall designate the chairman and vice chairman
of the Armed Services Board from among the appointed members.
Compensation for the chairman, vice chairman, and other members
shall be determined under section 5372a of title 5.
(b) Civilian Board.--
(1) Establishment.--There is established in the General Services
Administration the Civilian Board of Contract Appeals.
(2) Membership.--
(A) Eligibility.--The Civilian Board consists of members
appointed by the Administrator of General Services (in
consultation with the Administrator for Federal Procurement
Policy) from a register of applicants maintained by the
Administrator of General Services, in accordance with rules
issued by the Administrator of General Services (in
consultation with the Administrator for Federal Procurement
Policy) for establishing and maintaining a register of eligible
applicants and selecting Civilian Board members. The
Administrator of General Services shall appoint a member
without regard to political affiliation and solely on the basis
of the professional qualifications required to perform the
duties and responsibilities of a Civilian Board member.
(B) Appointment of members and compensation.--Members of the
Civilian Board shall be selected and appointed to serve in the
same manner as administrative law judges appointed pursuant to
section 3105 of title 5, with an additional requirement that
members must have had at least 5 years experience in public
contract law. Compensation for the members shall be determined
under section 5372a of title 5.
(3) Removal.--Members of the Civilian Board are subject to
removal in the same manner as administrative law judges, as
provided in section 7521 of title 5.
(4) Functions.--
(A) In general.--The Civilian Board has jurisdiction as
provided by subsection (e)(1)(B).
(B) Additional jurisdiction.--With the concurrence of the
Federal agencies affected, the Civilian Board may assume--
(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) Tennessee Valley Authority Board.--
(1) Establishment.--The Board of Directors of the Tennessee
Valley Authority may establish a board of contract appeals of the
Tennessee Valley Authority of an indeterminate number of members.
(2) Appointment of members and compensation.--The Board of
Directors of the Tennessee Valley Authority shall establish
criteria for the appointment of members to the agency board
established under paragraph (1), and shall designate a chairman of
the agency board. The chairman and other members of the agency
board shall receive compensation, at the daily equivalent of the
rates determined under section 5372a of title 5, for each day they
are engaged in the actual performance of their duties as members of
the agency board.
(d) Postal Service Board.--
(1) Establishment.--There is established an agency board of
contract appeals known as the Postal Service Board of Contract
Appeals.
(2) Appointment and service of members.--The Postal Service Board
of Contract Appeals consists of judges appointed by the Postmaster
General. The judges shall meet the qualifications of and serve in
the same manner as members of the Civilian Board.
(3) Application.--This chapter applies to contract disputes
before the Postal Service Board of Contract Appeals in the same
manner as it applies to contract disputes before the Civilian
Board.
(e) Jurisdiction.--
(1) In general.--
(A) Armed services board.--The Armed Services Board has
jurisdiction to decide any appeal from a decision of a
contracting officer of the Department of Defense, the
Department of the Army, the Department of the Navy, the
Department of the Air Force, or the National Aeronautics and
Space Administration relative to a contract made by that
department or agency.
(B) Civilian board.--The Civilian Board has jurisdiction to
decide any appeal from a decision of a contracting officer of
any executive agency (other than the Department of Defense, the
Department of the Army, the Department of the Navy, the
Department of the Air Force, the National Aeronautics and Space
Administration, the United States Postal Service, the Postal
Regulatory Commission, or the Tennessee Valley Authority)
relative to a contract made by that agency.
(C) Postal service board.--The Postal Service Board of
Contract Appeals has jurisdiction to decide any appeal from a
decision of a contracting officer of the United States Postal
Service or the Postal Regulatory Commission relative to a
contract made by either agency.
(D) Other agency boards.--Each other agency board has
jurisdiction to decide any appeal from a decision of a
contracting officer relative to a contract made by its agency.
(2) Relief.--In exercising this jurisdiction, an agency board may
grant any relief that would be available to a litigant asserting a
contract claim in the United States Court of Federal Claims.
(f) Subpoena, Discovery, and Deposition.--A member of an agency board
of contract appeals may administer oaths to witnesses, authorize
depositions and discovery proceedings, and require by subpoena the
attendance of witnesses, and production of books and papers, for the
taking of testimony or evidence by deposition or in the hearing of an
appeal by the agency board. In case of contumacy or refusal to obey a
subpoena by a person who resides, is found, or transacts business
within the jurisdiction of a United States district court, the court,
upon application of the agency board through the Attorney General, or
upon application by the board of contract appeals of the Tennessee
Valley Authority, shall have jurisdiction to issue the person an order
requiring the person to appear before the agency board or a member of
the agency board, to produce evidence or to give testimony, or both.
Any failure of the person to obey the order of the court may be
punished by the court as contempt of court.
(g) Decisions.--An agency board shall--
(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.
Sec. 7106. Agency board procedures for accelerated and small claims
(a) Accelerated Procedure Where $100,000 or Less in Dispute.--The
rules of each agency board shall include a procedure for the
accelerated disposition of any appeal from a decision of a contracting
officer where the amount in dispute is $100,000 or less. The
accelerated procedure is applicable at the sole election of the
contractor. An appeal under the accelerated procedure shall be
resolved, whenever possible, within 180 days from the date the
contractor elects to use the procedure.
(b) Small Claims Procedure.--
(1) In general.--The rules of each agency board shall include a
procedure for the expedited disposition of any appeal from a
decision of a contracting officer where the amount in dispute is
$50,000 or less, or in the case of a small business concern (as
defined in the Small Business Act (15 U.S.C. 631 et seq.) and
regulations under that Act), $150,000 or less. The small claims
procedure is applicable at the sole election of the contractor.
(2) Simplified rules of procedure.--The small claims procedure
shall provide for simplified rules of procedure to facilitate the
decision of any appeal. An appeal under the small claims procedure
may be decided by a single member of the agency board with such
concurrences as may be provided by rule or regulation.
(3) Time of decision.--An appeal under the small claims procedure
shall be resolved, whenever possible, within 120 days from the date
the contractor elects to use the procedure.
(4) Finality of decision.--A decision against the Federal
Government or against the contractor reached under the small claims
procedure is final and conclusive and may not be set aside except
in cases of fraud.
(5) No precedent.--Administrative determinations and final
decisions under this subsection have no value as precedent for
future cases under this chapter.
(6) Review of requisite amounts in controversy.--The
Administrator, from time to time, may review the dollar amounts
specified in paragraph (1) and adjust the amounts in accordance
with economic indexes selected by the Administrator.
Sec. 7107. Judicial review of agency board decisions
(a) Review.--
(1) In general.--The decision of an agency board is final, except
that--
(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) Tennessee valley authority.--Notwithstanding paragraph (1), a
decision of the board of contract appeals of the Tennessee Valley
Authority is final, except that--
(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) Review of arbitration.--An award by an arbitrator under this
chapter shall be reviewed pursuant to sections 9 to 13 of title 9,
except that the court may set aside or limit any award that is
found to violate limitations imposed by Federal statute.
(b) Finality of Agency Board Decisions on Questions of Law and
Fact.--Notwithstanding any contract provision, regulation, or rule of
law to the contrary, in an appeal by a contractor or the Federal
Government from the decision of an agency board pursuant to subsection
(a)--
(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) Remand.--In an appeal by a contractor or the Federal Government
from the decision of an agency board pursuant to subsection (a), the
court may render an opinion and judgment and remand the case for
further action by the agency board or by the executive agency as
appropriate, with direction the court considers just and proper.
(d) Consolidation.--If 2 or more actions arising from one contract
are filed in the United States Court of Federal Claims and one or more
agency boards, for the convenience of parties or witnesses or in the
interest of justice, the United States Court of Federal Claims may
order the consolidation of the actions in that court or transfer any
actions to or among the agency boards involved.
(e) Judgments as to Fewer Than All Claims or Parties.--In an action
filed pursuant to this chapter involving 2 or more claims,
counterclaims, cross-claims, or third-party claims, and where a portion
of one of the claims can be divided for purposes of decision or
judgment, and in any action where multiple parties are involved, the
court, whenever appropriate, may enter a judgment as to one or more but
fewer than all of the claims or portions of claims or parties.
(f) Advisory Opinions.--
(1) In general.--Whenever an action involving an issue described
in paragraph (2) is pending in a district court of the United
States, the district court may request an agency board to provide
the court with an advisory opinion on the matters of contract
interpretation under consideration.
(2) Applicable issue.--An issue referred to in paragraph (1) is
any issue that could be the proper subject of a final decision of a
contracting officer appealable under this chapter.
(3) Referral to agency board with jurisdiction.--A district court
shall direct a request under paragraph (1) to the agency board
having jurisdiction under this chapter to adjudicate appeals of
contract claims under the contract being interpreted by the court.
(4) Timely response.--After receiving a request for an advisory
opinion under paragraph (1), an agency board shall provide the
advisory opinion in a timely manner to the district court making
the request.
Sec. 7108. Payment of claims
(a) Judgments.--Any judgment against the Federal Government on a
claim under this chapter shall be paid promptly in accordance with the
procedures provided by section 1304 of title 31.
(b) Monetary Awards.--Any monetary award to a contractor by an agency
board shall be paid promptly in accordance with the procedures
contained in subsection (a).
(c) Reimbursement.--Payments made pursuant to subsections (a) and (b)
shall be reimbursed to the fund provided by section 1304 of title 31 by
the agency whose appropriations were used for the contract out of
available amounts or by obtaining additional appropriations for
purposes of reimbursement.
(d) Tennessee Valley Authority.--
(1) Judgments.--Notwithstanding subsections (a) to (c), any
judgment against the Tennessee Valley Authority on a claim under
this chapter shall be paid promptly in accordance with section 9(b)
of the Tennessee Valley Authority Act of 1933 (16 U.S.C. 831h(b)).
(2) Monetary awards.--Notwithstanding subsections (a) to (c), any
monetary award to a contractor by the board of contract appeals of
the Tennessee Valley Authority shall be paid in accordance with
section 9(b) of the Tennessee Valley Authority Act of 1933 (16
U.S.C. 831h(b)).
Sec. 7109. Interest
(a) Period.--
(1) In general.--Interest on an amount found due a contractor on
a claim shall be paid to the contractor for the period beginning
with the date the contracting officer receives the contractor's
claim, pursuant to section 7103(a) of this title, until the date of
payment of the claim.
(2) Defective certification.--On a claim for which the
certification under section 7103(b)(1) of this title is found to be
defective, any interest due under this section shall be paid for
the period beginning with the date the contracting officer
initially receives the contractor's claim until the date of payment
of the claim.
(b) Rate.--Interest shall accrue and be paid at a rate which the
Secretary of the Treasury shall specify as applicable for each
successive 6-month period. The rate shall be determined by the
Secretary of the Treasury taking into consideration current private
commercial rates of interest for new loans maturing in approximately 5
years.
Subtitle IV--Miscellaneous
Chapter Sec.
Drug-Free Workplace.................................................8101
Buy American........................................................8301
Committee for Purchase From People Who Are Blind or Severely Disable8501
Kickbacks...........................................................8701
CHAPTER 81--DRUG-FREE WORKPLACE
Sec.
8101. Definitions and construction.
8102. Drug-free workplace requirements for Federal contractors.
8103. Drug-free workplace requirements for Federal grant recipients.
8104. Employee sanctions and remedies.
8105. Waiver.
8106. Regulations.
Sec. 8101. Definitions and construction
(a) Definitions.--In this chapter:
(1) Contractor.--The term ``contractor'' means the department,
division, or other unit of a person responsible for the performance
under the contract.
(2) Controlled substance.--The term ``controlled substance''
means a controlled substance in schedules I through V of section
202 of the Comprehensive Drug Abuse Prevention and Control Act of
1970 (21 U.S.C. 812).
(3) Conviction.--The term ``conviction'' means a finding of guilt
(including a plea of nolo contendere), an imposition of sentence,
or both, by a judicial body charged with the responsibility to
determine violations of Federal or State criminal drug statutes.
(4) Criminal drug statute.--The term ``criminal drug statute''
means a criminal statute involving manufacture, distribution,
dispensation, use, or possession of a controlled substance.
(5) Drug-free workplace.--The term ``drug-free workplace'' means
a site of an entity--
(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) Employee.--The term ``employee'' means the employee of a
contractor or grantee directly engaged in the performance of work
pursuant to the contract or grant described in section 8102 or 8103
of this title.
(7) Federal agency.--The term ``Federal agency'' means an agency
as defined in section 552(f) of title 5.
(8) Grantee.--The term ``grantee'' means the department,
division, or other unit of a person responsible for the performance
under the grant.
(b) Construction.--This chapter does not require law enforcement
agencies to comply with this chapter if the head of the agency
determines it would be inappropriate in connection with the agency's
undercover operations.
Sec. 8102. Drug-free workplace requirements for Federal contractors
(a) In General.--
(1) Persons other than individuals.--A person other than an
individual shall not be considered a responsible source (as defined
in section 113 of this title) for the purposes of being awarded a
contract for the procurement of any property or services of a value
greater than the simplified acquisition threshold (as defined in
section 134 of this title) by a Federal agency, other than a
contract for the procurement of commercial items (as defined in
section 103 of this title), unless the person agrees to provide a
drug-free workplace by--
(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) Individuals.--A Federal agency shall not make a contract with
an individual unless the individual agrees not to engage in the
unlawful manufacture, distribution, dispensation, possession, or
use of a controlled substance in the performance of the contract.
(b) Suspension, Termination, or Debarment of Contractor.--
(1) Grounds for suspension, termination, or debarment.--Payment
under a contract awarded by a Federal agency may be suspended and
the contract may be terminated, and the contractor or individual
who made the contract with the agency may be suspended or debarred
in accordance with the requirements of this section, if the head of
the agency determines that--
(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) Conduct of suspension, termination, and debarment
proceedings.--A contracting officer who determines in writing that
cause for suspension of payments, termination, or suspension or
debarment exists shall initiate an appropriate action, to be
conducted by the agency concerned in accordance with the Federal
Acquisition Regulation and applicable agency procedures. The
Federal Acquisition Regulation shall be revised to include rules
for conducting suspension and debarment proceedings under this
subsection, including rules providing notice, opportunity to
respond in writing or in person, and other procedures as may be
necessary to provide a full and fair proceeding to a contractor or
individual.
(3) Effect of debarment.--A contractor or individual debarred by
a final decision under this subsection is ineligible for award of a
contract by a Federal agency, and for participation in a future
procurement by a Federal agency, for a period specified in the
decision, not to exceed 5 years.
Sec. 8103. Drug-free workplace requirements for Federal grant
recipients
(a) In General.--
(1) Persons other than individuals.--A person other than an
individual shall not receive a grant from a Federal agency unless
the person agrees to provide a drug-free workplace by--
(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) Individuals.--A Federal agency shall not make a grant to an
individual unless the individual agrees not to engage in the
unlawful manufacture, distribution, dispensation, possession, or
use of a controlled substance in conducting an activity with the
grant.
(b) Suspension, Termination, or Debarment of Grantee.--
(1) Grounds for suspension, termination, or debarment.--Payment
under a grant awarded by a Federal agency may be suspended and the
grant may be terminated, and the grantee may be suspended or
debarred, in accordance with the requirements of this section, if
the head of the agency or the official designee of the head of the
agency determines in writing that--
(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) Conduct of suspension, termination, and debarment
proceedings.--A suspension of payments, termination, or suspension
or debarment proceeding subject to this subsection shall be
conducted in accordance with applicable law, including Executive
Order 12549 or any superseding executive order and any regulations
prescribed to implement the law or executive order.
(3) Effect of debarment.--A grantee debarred by a final decision
under this subsection is ineligible for award of a grant by a
Federal agency, and for participation in a future grant by a
Federal agency, for a period specified in the decision, not to
exceed 5 years.
Sec. 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.
Sec. 8105. Waiver
(a) In General.--The head of an agency may waive a suspension of
payments, termination of the contract or grant, or suspension or
debarment of a contractor or grantee under this chapter with respect to
a particular contract or grant if--
(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) Waiver Authority May Not Be Delegated.--The authority of the head
of an agency under this section to waive a suspension, termination, or
debarment shall not be delegated.
Sec. 8106. Regulations
Government-wide regulations governing actions under this chapter
shall be issued pursuant to division B of subtitle I of this title.
CHAPTER 83--BUY AMERICAN
Sec.
8301. Definitions.
8302. American materials required for public use.
8303. Contracts for public works.
8304. Waiver rescission.
8305. Annual report.
Sec. 8301. Definitions
In this chapter:
(1) Public building, public use, and public work.--The terms
``public building'', ``public use'', and ``public work'' mean a
public building of, use by, and a public work of, the Federal
Government, the District of Columbia, Puerto Rico, American Samoa,
and the Virgin Islands.
(2) United states.--The term ``United States'' includes any place
subject to the jurisdiction of the United States.
Sec. 8302. American materials required for public use
(a) In General.--
(1) Allowable materials.--Only unmanufactured articles,
materials, and supplies that have been mined or produced in the
United States, and only 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, shall be acquired
for public use unless the head of the department or independent
establishment concerned determines their acquisition to be
inconsistent with the public interest or their cost to be
unreasonable.
(2) Exceptions.--This section does not apply--
(A) to articles, materials, or supplies for use outside the
United States;
(B) 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
(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) Reports.--
(1) In general.--Not later than 180 days after the end of each of
fiscal years 2009 through 2011, the head of each Federal agency
shall submit to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and Government
Reform of the House of Representatives a report on the amount of
the acquisitions made by the agency in that fiscal year of
articles, materials, or supplies purchased from entities that
manufacture the articles, materials, or supplies outside of the
United States.
(2) Contents of report.--The report required by paragraph (1)
shall separately include, for the fiscal year covered by the
report--
(A) the dollar value of any articles, materials, or supplies
that were manufactured outside the United States;
(B) an itemized list of all waivers granted with respect to
the articles, materials, or supplies under this chapter, and a
citation to the treaty, international agreement, or other law
under which each waiver was granted;
(C) if any articles, materials, or supplies were acquired
from entities that manufacture articles, materials, or supplies
outside the United States, the specific exception under this
section that was used to purchase the articles, materials, or
supplies; and
(D) a summary of--
(i) the total procurement funds expended on articles,
materials, and supplies manufactured inside the United
States; and
(ii) the total procurement funds expended on articles,
materials, and supplies manufactured outside the United
States.
(3) Public availability.--The head of each Federal agency
submitting a report under paragraph (1) shall make the report
publicly available to the maximum extent practicable.
(4) Exception for intelligence community.--This subsection shall
not apply to acquisitions made by an agency, or component of an
agency, that is an element of the intelligence community as
specified in, or designated under, section 3 of the National
Security Act of 1947 (50 U.S.C. 401a).
Sec. 8303. Contracts for public works
(a) In General.--Every contract for the construction, alteration, or
repair of any public building or public work in the United States shall
contain a provision that in the performance of the work the contractor,
subcontractors, material men, or suppliers shall use only--
(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) Exceptions.--
(1) In general.--This section does not apply--
(A) to articles, materials, or supplies for use outside the
United States;
(B) 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
(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) Particular article, material, or supply.--If the head of the
department or independent establishment making the contract finds
that it is impracticable to comply with subsection (a) for a
particular article, material, or supply or that it would
unreasonably increase the cost, an exception shall be noted in the
specifications for that article, material, or supply and a public
record of the findings that justified the exception shall be made.
(3) Inconsistent with public interest.--Subsection (a) shall be
regarded as requiring the purchase, for public use within the
United States, of articles, materials, or supplies manufactured in
the United States in sufficient and reasonably available commercial
quantities and of a satisfactory quality, unless the head of the
department or independent establishment concerned determines their
purchase to be inconsistent with the public interest or their cost
to be unreasonable.
(c) Results of Failure To Comply.--If the head of a department,
bureau, agency, or independent establishment that has made a contract
containing the provision required by subsection (a) finds that there
has been a failure to comply with the provision in the performance of
the contract, the head of the department, bureau, agency, or
independent establishment shall make the findings public. The findings
shall include the name of the contractor obligated under the contract.
The contractor, and any subcontractor, material man, or supplier
associated or affiliated with the contractor, shall not be awarded
another contract for the construction, alteration, or repair of any
public building or public work for 3 years after the findings are made
public.
Sec. 8304. Waiver rescission
(a) Type of Agreement.--An agreement referred to in subsection (b) is
a reciprocal defense procurement memorandum of understanding between
the United States and a foreign country pursuant to which the Secretary
of Defense has prospectively waived this chapter for certain products
in that country.
(b) Determination by Secretary of Defense.--If the Secretary of
Defense, after consultation with the United States Trade
Representative, determines that a foreign country that is party to an
agreement described in subsection (a) has violated the agreement by
discriminating against certain types of products produced in the United
States that are covered by the agreement, the Secretary of Defense
shall rescind the Secretary's blanket waiver of this chapter with
respect to those types of products produced in that country.
Sec. 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.
CHAPTER 85--COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR
SEVERELY DISABLED
Sec.
8501. Definitions.
8502. Committee for Purchase From People Who Are Blind or Severely
Disabled.
8503. Duties and powers of the Committee.
8504. Procurement requirements for the Federal Government.
8505. Audit.
8506. Authorization of appropriations.
Sec. 8501. Definitions
In this chapter:
(1) Blind.--The term ``blind'' refers to an individual or class
of individuals whose central visual acuity does not exceed 20/200
in the better eye with correcting lenses or whose visual acuity, if
better than 20/200, is accompanied by a limit to the field of
vision in the better eye to such a degree that its widest diameter
subtends an angle of no greater than 20 degrees.
(2) Committee.--The term ``Committee'' means the Committee for
Purchase From People Who Are Blind or Severely Disabled established
under section 8502 of this title.
(3) Direct labor.--The term ``direct labor''--
(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) Entity of the federal government and federal government.--The
terms ``entity of the Federal Government'' and ``Federal
Government'' include an entity of the legislative or judicial
branch, a military department or executive agency (as defined in
sections 102 and 105 of title 5, respectively), the United States
Postal Service, and a nonappropriated fund instrumentality under
the jurisdiction of the Armed Forces.
(5) Other severely disabled.--The term ``other severely
disabled'' means an individual or class of individuals under a
physical or mental disability, other than blindness, which
(according to criteria established by the Committee after
consultation with appropriate entities of the Federal Government
and taking into account the views of non-Federal Government
entities representing the disabled) constitutes a substantial
handicap to employment and is of a nature that prevents the
individual from currently engaging in normal competitive
employment.
(6) Qualified nonprofit agency for other severely disabled.--The
term ``qualified nonprofit agency for other severely disabled''
means an agency--
(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) Qualified nonprofit agency for the blind.--The term
``qualified nonprofit agency for the blind'' means an agency--
(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) Severely disabled individual.--The term ``severely disabled
individual'' means an individual or class of individuals under a
physical or mental disability, other than blindness, which
(according to criteria established by the Committee after
consultation with appropriate entities of the Federal Government
and taking into account the views of non-Federal Government
entities representing the disabled) constitutes a substantial
handicap to employment and is of a nature that prevents the
individual from currently engaging in normal competitive
employment.
(9) State.--The term ``State'' includes the District of Columbia,
Puerto Rico, the Virgin Islands, Guam, American Samoa, and the
Northern Mariana Islands.
Sec. 8502. Committee for Purchase From People Who Are Blind or Severely
Disabled
(a) Establishment.--There is a Committee for Purchase From People Who
Are Blind or Severely Disabled.
(b) Composition.--The Committee consists of 15 members appointed by
the President as follows:
(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) Terms of Office.--Members appointed under paragraph (2), (3),
(4), or (5) of subsection (b) shall be appointed for terms of 5 years
and may be reappointed if the member meets the qualifications
prescribed by those paragraphs.
(d) Chairman.--The members of the Committee shall elect one of the
members to be Chairman.
(e) Vacancy.--
(1) Manner in which filled.--A vacancy in the membership of the
Committee shall be filled in the manner in which the original
appointment was made.
(2) Unfulfilled term.--A member appointed under paragraph (2),
(3), (4), or (5) of subsection (b) to fill a vacancy occurring
prior to the expiration of the term for which the predecessor was
appointed shall be appointed only for the remainder of the term.
The member may serve after the expiration of a term until a
successor takes office.
(f) Pay and Travel Expenses.--
(1) Amount to which members are entitled.--Except as provided in
paragraph (2), members of the Committee are entitled to receive the
daily equivalent of the maximum annual rate of basic pay payable
for level IV of the Executive Schedule for each day (including
travel-time) during which they perform services for the Committee.
A member is entitled to travel expenses, including a per diem
allowance instead of subsistence, as provided under section 5703 of
title 5.
(2) Officers or employees of the federal government.--Members who
are officers or employees of the Federal Government may not receive
additional pay because of their service on the Committee.
(g) Staff.--
(1) Appointment and compensation.--Subject to rules the Committee
may adopt and to chapters 33 and 51 and subchapter III of chapter
53 of title 5, the Chairman may appoint and fix the pay of
personnel the Committee determines are necessary to assist it in
carrying out this chapter.
(2) Personnel from other entities.--On request of the Committee,
the head of an entity of the Federal Government may detail, on a
reimbursable basis, any personnel of the entity to the Committee to
assist it in carrying out this chapter.
(h) Obtaining Official Information.--The Committee may secure
directly from an entity of the Federal Government information necessary
to enable it to carry out this chapter. On request of the Chairman, the
head of the entity shall furnish the information to the Committee.
(i) Administrative Support Services.--The Administrator of General
Services shall provide to the Committee, on a reimbursable basis,
administrative support services the Committee requests.
(j) Annual Report.--Not later than December 31 of each year, the
Committee shall transmit to the President a report that includes the
names of the Committee members serving in the prior fiscal year, the
dates of Committee meetings in that year, a description of the
activities of the Committee under this chapter in that year, and any
recommendations for changes in this chapter which the Committee
determines are necessary.
Sec. 8503. Duties and powers of the Committee
(a) Procurement List.--
(1) Maintenance of list.--The Committee shall maintain and
publish in the Federal Register a procurement list. The list shall
include the following products and services determined by the
Committee to be suitable for the Federal Government to procure
pursuant to this chapter:
(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) Changes to list.--The Committee may, by rule made in
accordance with the requirements of section 553(b) to (e) of title
5, add to and remove from the procurement list products so produced
and services so provided.
(b) Fair Market Price.--The Committee shall determine the fair market
price of products and services contained on the procurement list that
are offered for sale to the Federal Government by a qualified nonprofit
agency for the blind or a qualified nonprofit agency for other severely
disabled. The Committee from time to time shall revise its price
determinations with respect to those products and services in
accordance with changing market conditions.
(c) Central Nonprofit Agency or Agencies.--The Committee shall
designate a central nonprofit agency or agencies to facilitate the
distribution, by direct allocation, subcontract, or any other means, of
orders of the Federal Government for products and services on the
procurement list among qualified nonprofit agencies for the blind or
qualified nonprofit agencies for other severely disabled.
(d) Regulations.--The Committee--
(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) Study and Evaluation of Activities.--The Committee shall make a
continuing study and evaluation of its activities under this chapter to
ensure effective and efficient administration of this chapter. The
Committee on its own or in cooperation with other public or nonprofit
private agencies may study--
(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.
Sec. 8504. Procurement requirements for the Federal Government
(a) In General.--An entity of the Federal Government intending to
procure a product or service on the procurement list referred to in
section 8503 of this title shall procure the product or service from a
qualified nonprofit agency for the blind or a qualified nonprofit
agency for other severely disabled in accordance with regulations of
the Committee and at the price the Committee establishes if the product
or service is available within the period required by the entity.
(b) Exception.--This section does not apply to the procurement of a
product that is available from an industry established under chapter
307 of title 18 and that is required under section 4124 of title 18 to
be procured from that industry.
Sec. 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.
Sec. 8506. Authorization of appropriations
Necessary amounts may be appropriated to the Committee to carry out
this chapter.
CHAPTER 87--KICKBACKS
Sec.
8701. Definitions.
8702. Prohibited conduct.
8703. Contractor responsibilities.
8704. Inspection authority.
8705. Administrative offsets.
8706. Civil actions.
8707. Criminal penalties.
Sec. 8701. Definitions
In this chapter:
(1) Contracting agency.--The term ``contracting agency'', when
used with respect to a prime contractor, means a department,
agency, or establishment of the Federal Government that enters into
a prime contract with a prime contractor.
(2) Kickback.--The term ``kickback'' means any money, fee,
commission, credit, gift, gratuity, thing of value, or compensation
of any kind that is provided to a prime contractor, prime
contractor employee, subcontractor, or subcontractor employee to
improperly obtain or reward favorable treatment in connection with
a prime contract or a subcontract relating to a prime contract.
(3) Person.--The term ``person'' means a corporation,
partnership, business association of any kind, trust, joint-stock
company, or individual.
(4) Prime contract.--The term ``prime contract'' means a contract
or contractual action entered into by the Federal Government to
obtain supplies, materials, equipment, or services of any kind.
(5) Prime contractor.--The term ``prime contractor'' means a
person that has entered into a prime contract with the Federal
Government.
(6) Prime contractor employee.--The term ``prime contractor
employee'' means an officer, partner, employee, or agent of a prime
contractor.
(7) Subcontract.--The term ``subcontract'' means a contract or
contractual action entered into by a prime contractor or
subcontractor to obtain supplies, materials, equipment, or services
of any kind under a prime contract.
(8) Subcontractor.--The term ``subcontractor''--
(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) Subcontractor employee.--The term ``subcontractor employee''
means an officer, partner, employee, or agent of a subcontractor.
Sec. 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.
Sec. 8703. Contractor responsibilities
(a) Requirements Included in Contracts.--Each contracting agency
shall include in each prime contract awarded by the agency a
requirement that the prime contractor shall--
(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) Full Cooperation Required.--Notwithstanding subsection (d), a
prime contractor shall cooperate fully with a Federal Government agency
investigating a violation of section 8702 of this title.
(c) Reporting Requirement.--
(1) In general.--A prime contractor or subcontractor that has
reasonable grounds to believe that a violation of section 8702 of
this title may have occurred shall promptly report the possible
violation in writing to the inspector general of the contracting
agency, the head of the contracting agency if the agency does not
have an inspector general, or the Attorney General.
(2) Supplying information as favorable evidence.--In an
administrative or contractual action to suspend or debar a person
who is eligible to enter into contracts with the Federal
Government, evidence that the person has supplied information to
the Federal Government pursuant to paragraph (1) is favorable
evidence of the person's responsibility for the purposes of Federal
procurement laws and regulations.
(d) Inapplicability to Certain Prime Contracts.--Subsection (a) does
not apply to a prime contract--
(1) that is not greater than $100,000; or
(2) for the acquisition of commercial items (as defined in
section 103 of this title).
Sec. 8704. Inspection authority
(a) In General.--To ascertain whether there has been a violation of
section 8702 of this title with respect to a prime contract, the
Comptroller General and the inspector general of the contracting
agency, or a representative of the contracting agency designated by the
head of the agency if the agency does not have an inspector general,
shall have access to and may inspect the facilities and audit the books
and records, including electronic data or records, of a prime
contractor or subcontractor under a prime contract awarded by the
agency.
(b) Exception.--This section does not apply to a prime contract for
the acquisition of commercial items (as defined in section 103 of this
title).
Sec. 8705. Administrative offsets
(a) Definition.--In this section, the term ``contracting officer''
has the meaning given that term in chapter 71 of this title.
(b) Offset Authority.--A contracting officer of a contracting agency
may offset the amount of a kickback provided, accepted, or charged in
violation of section 8702 of this title against amounts the Federal
Government owes the prime contractor under the prime contract to which
the kickback relates.
(c) Duties of Prime Contractor.--
(1) Withholding and paying over or retaining amounts.--On
direction of a contracting officer of a contracting agency with
respect to a prime contract, the prime contractor shall withhold
from amounts owed to a subcontractor under a subcontract of the
prime contract the amount of a kickback which was or may be offset
against the prime contractor under subsection (b). The contracting
officer may order that amounts withheld--
(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) Notice.--The prime contractor shall notify the contracting
officer when an amount is withheld and retained under paragraph
(1)(B).
(d) Offset, Direction, or Order is Claim of Federal Government.--An
offset under subsection (b) or a direction or order of a contracting
officer under subsection (c) is a claim by the Federal Government for
the purposes of chapter 71 of this title.
Sec. 8706. Civil actions
(a) Amount.--The Federal Government in a civil action may recover
from a person--
(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) Statute of Limitations.--A civil action under this section must
be brought within 6 years after the later of the date on which--
(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.
Sec. 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.
SEC. 4. CONFORMING AMENDMENT.
Section 2410i(b)(1) of title 10, United States Code, is amended by
striking ``small purchase threshold'' and substituting ``simplified
acquisition threshold''.
SEC. 5. CONFORMING CROSS-REFERENCES.
(a) Title 5.--Title 5, United States Code, is amended as follows:
(1) In section 504(b)(1)(C)(ii)--
(A) strike ``section 6 of the Contract Disputes Act of 1978
(41 U.S.C. 605)'' and substitute ``section 7103 of title 41'';
and
(B) strike ``section 8 of that Act (41 U.S.C. 607)'' and
substitute ``section 7105 of title 41''.
(2) In section 551(1)(H), strike ``chapter 2 of title 41;''.
(3) In section 701(b)(1)(H), strike ``chapter 2 of title 41;''.
(4) In section 3109(b)(3), strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(5) In section 3374(c)(2), strike ``section 27 of the Office of
Federal Procurement Policy Act'' and substitute ``chapter 21 of
title 41''.
(6) In section 3704(b)(2)(G), strike ``section 27 of the Office
of Federal Procurement Policy Act'' and substitute ``chapter 21 of
title 41''.
(7) In section 4105, strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(8) In section 5102(c)(30), strike ``section 8 of the Contract
Disputes Act of 1978'' and substitute ``section 7105(a)(2), (c)(2),
or (d)(2) of title 41''.
(9) In section 5372a--
(A) in subsection (a)(1)--
(i) strike ``section 8 of the Contract Disputes Act of
1978'' and substitute ``section 7105(a)(2), (c)(2), or
(d)(2) of title 41''; and
(ii) strike ``section 42 of the Office of Federal
Procurement Policy Act'' and substitute ``section
7105(b)(2) of title 41''; and
(B) in subsection (a)(2), strike ``section 8 of the Contract
Disputes Act of 1978'' and substitute ``section 7105(a)(1),
(c)(1), or (d)(1) of title 41''.
(10) In section 7342(e)(1), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(11) In section 8709(a), strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(12) In section 8714a(a), strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(13) In section 8714b(a), strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(14) In section 8714c(a), strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(15) In section 8902(a), strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(16) In section 8953(a)(1), strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(17) In section 8983(a)(1), strike ``section 5'' and substitute
``section 6101(b) to (d)''.
(18) In section 9003--
(A) in subsection (a), strike ``section 5'' and substitute
``section 6101(b) to (d)'';
(B) in subsection (c)(3), before subparagraph (A), strike
``the Contract Disputes Act of 1978'' and substitute ``chapter
71 of title 41'';
(C) in subsection (c)(3)(A), strike ``(after appropriate
arrangements, as described in section 8(c) of such Act)''; and
(D) in subsection (c)(3)(B), strike ``section 10(a)(1) of
such Act'' and substitute ``section 7104(b)(1) of title 41''.
(19) In section 9009, strike ``section 26(f) of the Office of
Federal Procurement Policy Act (41 U.S.C. 422(f))'' and substitute
``section 1502(a) and (b) of title 41''.
(b) Title 10.--Title 10, United States Code, is amended as follows:
(1) In section 133(c)(1), strike ``section 16(c) of the Office of
Federal Procurement Policy Act (41 U.S.C. 414(c))'' and substitute
``section 1702(c) of title 41''.
(2) In section 2013(a), strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b)-(d) of
title 41''.
(3) In section 2194(b)(2), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(4) In section 2201--
(A) in subsection (b), strike ``section 3732(a) of the
Revised Statutes (41 U.S.C. 11(a))'' and substitute ``section
6301(a) and (b)(1)-(3) of title 41''; and
(B) in subsection (c), strike ``section 3732(a) of the
Revised Statutes (41 U.S.C. 11(a))'' and substitute ``section
6301(a) and (b)(1)-(3) of title 41''.
(5) In section 2207(b), strike ``section 4(11) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(11))'' and substitute
``section 134 of title 41''.
(6) In section 2225(f)--
(A) in paragraph (1), strike ``section 16(c) of the Office of
Federal Procurement Policy Act (41 U.S.C. 414(c))'' and
substitute ``section 1702(c) of title 41''; and
(B) in paragraph (2), strike ``section 4(11) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(11))'' and
substitute ``section 134 of title 41''.
(7) In section 2226(b), strike ``section 4(12) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(12))'' and substitute
``section 103 of title 41''.
(8) In section 2302--
(A) in paragraph (3), strike ``section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403)'' and substitute
``chapter 1 of title 41'';
(B) in paragraph (6), strike ``section 25(c)(1) of the Office
of Federal Procurement Policy Act (41 U.S.C. 421(c)(1))'' and
substitute ``section 1303(a)(1) of title 41''; and
(C) in paragraph (7), strike ``section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403)'' and substitute
``section 134 of title 41''.
(9) In section 2302a--
(A) in subsection (a), strike ``section 4(11) of the Office
of Federal Procurement Policy Act'' and substitute ``section
134 of title 41''; and
(B) in subsection (b), strike ``section 33 of the Office of
Federal Procurement Policy Act'' and substitute ``section 1905
of title 41''.
(10) In section 2302b, strike ``section 31 of the Office of
Federal Procurement Policy Act'' and substitute ``section 1901 of
title 41''.
(11) In section 2302c--
(A) in subsection (a)(1), strike ``section 30 of the Office
of Federal Procurement Policy Act (41 U.S.C. 426)'' and
substitute ``section 2301 of title 41''; and
(B) in subsection (b), strike ``section 16(c) of the Office
of Federal Procurement Policy Act (41 U.S.C. 414(c))'' and
substitute ``section 1702(c) of title 41''.
(12) In section 2304--
(A) in subsection (f)(1)(B)(iii), strike ``section 16(c) of
the Office of Federal Procurement Policy Act (41 U.S.C.
414(c))'' and substitute ``section 1702(c) of title 41'';
(B) in subsection (f)(1)(C), strike ``section 18 of the
Office of Federal Procurement Policy Act (41 U.S.C. 416)'' and
substitute ``section 1708 of title 41'';
(C) in subsection (f)(2)(D), strike ``the Javits-Wagner-O'Day
Act (41 U.S.C. 46 et seq.)'' and substitute ``chapter 85 of
title 41'';
(D) in subsection (g)(4), strike ``section 31(f) of the
Office of Federal Procurement Policy Act (41 U.S.C. 427)'' and
substitute ``section 1901(e) of title 41''; and
(E) in subsection (h)(1), strike ``The Walsh-Healey Act (41
U.S.C. 35 et seq.)'' and substitute ``Chapter 65 of title 41''.
(13) In section 2304b--
(A) in subsection (c), strike ``section 18 of the Office of
Federal Procurement Policy Act (41 U.S.C. 416)'' and substitute
``section 1708 of title 41''; and
(B) in subsection (f)(3), strike ``section 18 of the Office
of Federal Procurement Policy Act (41 U.S.C. 416)'' and
substitute ``section 1708 of title 41''.
(14) In section 2304c(a)(1), strike ``section 18 of the Office of
Federal Procurement Policy Act (41 U.S.C. 416)'' and substitute
``section 1708 of title 41''.
(15) In section 2306a(h)(3), strike ``section 4(12) of the Office
of Federal Procurement Policy Act (41 U.S.C. 403(12))'' and
substitute ``section 103 of title 41''.
(16) In section 2314, strike ``Sections 3709 and 3735 of the
Revised Statutes (41 U.S.C. 5 and 13)'' and substitute ``Sections
6101(b)-(d) and 6304 of title 41''.
(17) In section 2318--
(A) in subsection (a)(1), strike ``section 20(a) of the
Office of Federal Procurement Policy Act (41 U.S.C. 418(a))''
and substitute ``section 1705(a) of title 41''; and
(B) in subsection (a)(2), strike ``sections 20(b) and 20(c)
of the Office of Federal Procurement Policy Act (41 U.S.C.
418(b), (c))'' and substitute ``section 1705(b) and (c) of
title 41''.
(18) In section 2321(h), strike ``the Contract Disputes Act of
1978 (41 U.S.C. 601 et seq.)'' and substitute ``chapter 71 of title
41''.
(19) In section 2324--
(A) in subsection (d)(1), strike ``section 6 of the Contract
Disputes Act of 1978 (41 U.S.C. 605)'' and substitute ``section
7103 of title 41'';
(B) in subsection (d)(2), strike ``section 7 of such Act (41
U.S.C. 606)'' and substitute ``section 7104(a) of title 41'';
(C) in subsection (e)(1)(P), strike ``section 39 of the
Office of Federal Procurement Policy Act (41 U.S.C. 435)'' and
substitute ``section 1127 of title 41''; and
(D) in subsection (e)(2)(C), strike ``(41 U.S.C. 10b-1)'' and
substitute ``(as added by section 7002(2) of the Omnibus Trade
and Competitiveness Act of 1988)''.
(20) In section 2343, strike ``section 3741 of the Revised
Statutes (41 U.S.C. 22)'' and substitute ``section 6306 of title
41''.
(21) In section 2375(b), strike ``section 34 of the Office of
Federal Procurement Policy Act (41 U.S.C. 430)'' and substitute
``section 1906 of title 41''.
(22) In section 2376(1), strike ``section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403)'' and substitute
``chapter 1 of title 41''.
(23) In section 2384--
(A) in subsection (b)(2), strike ``section 4(12) of the
Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))''
and substitute ``section 103 of title 41)''; and
(B) in subsection (b)(3), strike ``section 4(11) of the
Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))''
and substitute ``section 134 of title 41)''.
(24) In section 2393(d)--
(A) strike ``section 4(11) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(11)))'' and substitute
``section 134 of title 41)''; and
(B) strike ``section 4(12) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(12)))'' and substitute
``section 103 of title 41)''.
(25) In section 2402--
(A) in subsection (c), strike ``section 4(11) of the Office
of Federal Procurement Policy Act (41 U.S.C. 403(11)))'' and
substitute ``section 134 of title 41)''; and
(B) in subsection (d)(2), strike ``section 4(12) of the
Office of Federal Procurement Policy Act (41 U.S.C. 403(12))''
and substitute ``section 103 of title 41''.
(26) In section 2408--
(A) in subsection (a)(4)(A), strike ``section 4(11) of the
Office of Federal Procurement Policy Act (41 U.S.C. 403(11)))''
and substitute ``section 134 of title 41)''; and
(B) in subsection (a)(4)(B), strike ``section 4(12) of the
Office of Federal Procurement Policy Act (41 U.S.C. 403(12)))''
and substitute ``section 103 of title 41)''.
(27) In section 2410(c), strike ``section 4(11) of the Office of
Federal Procurement Policy Act'' and substitute ``section 134 of
title 41''.
(28) In section 2410b(c), strike ``section 4(12) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(12)))'' and
substitute ``section 103 of title 41)''.
(29) In section 2410d--
(A) in subsection (b)(2)(A), strike ``section 5(3) of the
Javits-Wagner-O'Day Act (41 U.S.C. 48b(3))'' and substitute
``section 8501(7) of title 41'';
(B) in subsection (b)(2)(B), strike ``handicapped, as defined
in section 5(4) of such Act (41 U.S.C. 48b(4))'' and substitute
``disabled, as defined in section 8501(6) of title 41''; and
(C) in subsection (b)(2)(C), strike ``section 2(c) of such
Act (41 U.S.C. 47(c))'' and substitute ``section 8503(c) of
title 41''.
(30) In section 2410g(d)(1), strike ``section 4(12) of the Office
of Federal Procurement Policy Act (41 U.S.C. 403(12)))'' and
substitute ``section 103 of title 41)''.
(31) In section 2410i(b)(1), strike ``section 4(11) of the Office
of Federal Procurement Policy Act (41 U.S.C. 403(11)))'' and
substitute ``section 134 of title 41)''.
(32) In section 2410m--
(A) in subsection (a), before paragraph (1), strike ``the
Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.)'' and
substitute ``chapter 71 of title 41'';
(B) in subsection (a)(2), strike ``section 7 of such Act (41
U.S.C. 606)'' and substitute ``section 7104(a) of title 41'';
and
(C) in subsection (b)(1)(A), strike ``section 10(a) of the
Contract Disputes Act of 1978 (41 U.S.C. 609(a))'' and
substitute ``section 7104(b) of title 41''.
(33) In section 2457(e), strike ``section 2 of the Buy American
Act (41 U.S.C. 10a)'' and substitute ``section 8302 of title 41''.
(34) In section 2461(c)(1), strike ``section 2 of the Javits-
Wagner-O'Day Act (41 U.S.C. 47)'' and substitute ``section 8503 of
title 41''.
(35) In section 2485(b)(1), strike ``section 4(6) of the Office
of Federal Procurement Policy Act (41 U.S.C. 403(6))'' and
substitute ``section 107 of title 41''.
(36) In the chapter analysis for subchapter V of chapter 148, in
the item for section 2533, strike ``the Buy American Act'' and
substitute ``chapter 83 of title 41''.
(37) In section 2533--
(A) in the section catchline, strike ``the Buy American Act''
and substitute ``chapter 83 of title 41''; and
(B) in subsection (a), strike ``section 2 of the Buy American
Act (41 U.S.C. 10a)'' and substitute ``section 8302 of title
41''.
(38) In section 2533a(i), strike ``section 34 of the Office of
Federal Procurement Policy Act (41 U.S.C. 430)'' and substitute
``section 1906 of title 41''.
(39) In section 2533b--
(A) in subsection (h), strike ``section 34 of the Office of
Federal Procurement Policy Act (41 U.S.C. 430)'' and substitute
``section 1906 of title 41''; and
(B) in subsection (j), strike ``section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403)'' and substitute
``section 105 of title 41''.
(40) In section 2534(g)(2), strike ``section 33 of the Office of
Federal Procurement Policy Act (41 U.S.C. 429)'' and substitute
``section 1905 of title 41''.
(41) In section 2562(a)(1), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(42) In section 2576(a), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(43) In section 2636(b)(3), strike ``section 4(11) of the Office
of Federal Procurement Policy Act (41 U.S.C. 403(11))'' and
substitute ``section 134 of title 41''.
(44) In section 2667(f)(1), strike ``Notwithstanding subsection
(a)(3) or subtitle I of title 40 and title III of the Federal
Property and Administrative Services Act of 1949 (to the extent
subtitle I and title III are inconsistent with this subsection)''
and substitute ``Notwithstanding subtitle I of title 40 and
division C (except sections 3302, 3501(b), 3509, 3906, 4710, and
4711) of subtitle I of title 41 (to the extent those provisions are
inconsistent with this subsection) or subsection (a)(2) of this
section''.
(45) In section 2664(a), strike ``title III of the Federal
Property and Administrative Services Act of 1949, as amended (41
U.S.C. 251 et seq.)'' and substitute ``division C (except sections
3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title
41''.
(46) In section 2691(b), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(47) In section 2696(a), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(48) In section 2836(g), strike ``the Contract Disputes Act of
1978 (41 U.S.C. 601 et seq.)'' and substitute ``chapter 71 of title
41''.
(49) In section 2854a(d)(1), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(50) In section 2878(d)(2), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(51) In the chapter analysis for chapter 633, in the item for
section 7299, strike ``Walsh-Healey Act'' and substitute ``chapter
65 of title 41''.
(52) In section 7299--
(A) in the heading, strike ``Walsh-Healey Act'' and
substitute ``chapter 65 of title 41''; and
(B) strike ``the Walsh-Healey Act (41 U.S.C. 35 et seq.)''
and substitute ``chapter 65 of title 41''.
(53) In section 7305(d)--
(A) strike ``title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)''
and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''; and
(B) strike ``under subtitle I of title 40 and such title
III'' and substitute ``under those provisions''.
(54) In section 9444(b)(1), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(55) In section 9781(g), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(c) Title 14.--Title 14, United States Code, is amended as follows:
(1) In section 92(d), strike ``title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)''
and substitute ``division C (except sections 3302, 3501(b), 3509,
3906, 4710, and 4711) of subtitle I of title 41''.
(2) In section 93(h), strike ``title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)''
and substitute ``division C (except sections 3302, 3501(b), 3509,
3906, 4710, and 4711) of subtitle I of title 41''.
(3) In section 641(a), strike ``title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)''
and substitute ``division C (except sections 3302, 3501(b), 3509,
3906, 4710, and 4711) of subtitle I of title 41''.
(4) In section 685(c)(1), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(d) Title 18.--Title 18, United States Code, is amended as follows:
(1) In section 3672, strike ``section 3709 of the Revised
Statutes of the United States'' and substitute ``section 6101(b) to
(d) of title 41''.
(2) In section 4124(c), strike ``section 6(d)(4) of the Office of
Federal Procurement Policy Act'' and substitute ``section
1122(a)(4) of title 41''.
(e) Title 23.--Title 23, United States Code, is amended as follows:
(1) In section 140--
(A) in subsection (b), strike ``section 3709 of the Revised
Statutes, as amended (41 U.S.C. 5),'' and substitute ``section
6101(b) to (d) of title 41''; and
(B) in subsection (c)--
(i) strike ``section 3709 of the Revised Statutes, as
amended (41 U.S.C. 5),'' and substitute ``section 6101(b)
to (d) of title 41''; and
(ii) strike ``section 302(e) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 252(e))''
and substitute ``section 3106 of title 41''.
(2) In section 502(c)(5), strike ``Section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``Section 6101(b) to (d) of
title 41''.
(f) The Internal Revenue Code of 1986.--Section 7608(c)(1) of the
Internal Revenue Code of 1986 (26 U.S.C. 7608(c)(1)) is amended--
(1) in subparagraph (A)(i)(II), by striking ``sections 11(a) and
22'' and substituting ``sections 6301(a) and (b)(1)-(3) and 6306'';
(2) in subparagraph (A)(i)(III), by striking ``section 255'' and
substituting ``chapter 45''; and
(3) in subparagraph (A)(i)(V), by striking ``section 254(a) and
(c)'' and substituting ``section 3901''.
(g) Title 28.--Title 28, United States Code, is amended as follows:
(1) In the last sentence of section 524(c)(1), strike ``section
3709 of the Revised Statutes of the United States (41 U.S.C. 5),
title III of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 251 and following)'' and substitute ``division C
(except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of
subtitle I of title 41, section 6101(b) to (d) of title 41''.
(2) In section 604(a)(10)(C), strike ``section 3709 of the
Revised Statutes of the United States (41 U.S.C. 5)'' and
substitute ``section 6101(b) to (d) of title 41''.
(3) In section 624(3), strike ``section 3709 of the Revised
Statutes, as amended (41 U.S.C. 5)'' and substitute ``section
6101(b) to (d) of title 41''.
(4) In section 753(g), strike ``section 3709 of the Revised
Statutes of the United States, as amended (41 U.S.C. 5)'' and
substitute ``section 6101(b) to (d) of title 41''.
(5) In section 1295--
(A) in subsection (a)(10), strike ``section 8(g)(1) of the
Contract Disputes Act of 1978 (41 U.S.C. 607(g)(1))'' and
substitute ``section 7107(a)(1) of title 41'';
(B) in subsection (b), strike ``section 10(b) of the Contract
Disputes Act of 1978 (41 U.S.C. 609(b))'' and substitute
``section 7107(b) of title 41''; and
(C) in subsection (c), strike ``section 10(b) of the Contract
Disputes Act of 1978'' and substitute ``section 7107(b) of
title 41''.
(6) In section 1346(a)(2), strike ``sections 8(g)(1) and 10(a)(1)
of the Contract Disputes Act of 1978'' and substitute ``sections
7104(b)(1) and 7107(a)(1) of title 41''.
(7) In section 1491(a)(2), strike ``section 10(a)(1) of the
Contract Disputes Act of 1978'' and substitute ``section 7104(b)(1)
of title 41''.
(8) In section 2401(a), strike ``the Contract Disputes Act of
1978'' and substitute ``chapter 71 of title 41''.
(9) In section 2412--
(A) in subsection (d)(2)(E), strike ``the Contract Disputes
Act of 1978'' and substitute ``chapter 71 of title 41''; and
(B) in subsection (d)(3), strike ``the Contract Disputes Act
of 1978'' and substitute ``chapter 71 of title 41''.
(10) In section 2414, strike ``the Contract Disputes Act of
1978'' and substitute ``chapter 71 of title 41''.
(11) In section 2517(a), strike ``the Contract Disputes Act of
1978'' and substitute ``chapter 71 of title 41''.
(h) Title 31.--Title 31, United States Code, is amended as follows:
(1) In section 506, strike ``section 5(a) of the Office of
Federal Procurement Policy Act (41 U.S.C. 404(a))'' and substitute
``section 1101(a) of title 41''.
(2) In section 731(i)(7), strike ``section 27 of the Office of
Federal Procurement Policy Act (41 U.S.C. 423)'' and substitute
``chapter 21 of title 41''.
(3) In section 781(c)(1), strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to (d) of
title 41''.
(4) Section 1344(h)(2)(A) is amended to read as follows:
``(A) a department--
``(i) including independent establishments, other
agencies, and wholly owned Government corporations; but
``(ii) not including the Senate, House of
Representatives, or Architect of the Capitol, or the
officers or employees thereof;''.
(5) In section 3567, strike ``section 4(1) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(1))'' and substitute
``section 133 of title 41''.
(6) In section 3718(b)(1)(A), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 and
following)'' and substitute ``division C (except sections 3302,
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(7) In section 3902(a), strike ``section 12 of the Contract
Disputes Act of 1978 (41 U.S.C. 611)'' and substitute ``section
7109(a)(1) and (b) of title 41''.
(8) In section 3907--
(A) in subsection (a), strike ``section 6 of the Contract
Disputes Act of 1978 (41 U.S.C. 605)'' and substitute ``section
7103 of title 41'';
(B) in subsection (b)(1)(A), strike ``the Contract Disputes
Act of 1978 (41 U.S.C. 601 et seq.)'' and substitute ``chapter
71 of title 41'';
(C) in subsection (b)(2)--
(i) strike ``section 12 of the Contract Disputes Act of
1978 (41 U.S.C. 611)'' and substitute ``section 7109(a)(1)
and (b) of title 41''; and
(ii) in the second sentence, strike ``section 12'' and
substitute ``section 7109(a)(1) and (b)''; and
(D) in subsection (c), strike ``the Contract Disputes Act of
1978 (41 U.S.C. 601 et seq.)'' and substitute ``chapter 71 of
title 41''.
(9) In section 6202(c)(2), strike ``section 6(d)(5) of the Office
of Federal Procurement Policy Act (41 U.S.C. 405(d)(5))'' and
substitute ``section 1122(a)(4) of title 41''.
(10) In section 9703(b)(3), as added by section 638(b)(1) of the
Act of October 6, 1992 (Public Law 102-393, 106 Stat. 1779), strike
``section 3709 of the Revised Statutes of the United States (41
U.S.C. 5), title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.)'' and substitute
``division C (except sections 3302, 3501(b), 3509, 3906, 4710, and
4711) of subtitle I of title 41, section 6101(b) to (d) of title
41''.
(i) Title 35.--Title 35, United States Code, is amended as follows:
(1) In section 2(b)(4)(A), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(2) In section 203(b), strike ``the Contract Disputes Act (41
U.S.C. Sec. 601 et seq.)'' and substitute ``chapter 71 of title
41''.
(j) Title 38.--Title 38, United States Code, is amended as follows:
(1) In section 1720(c)(2), strike ``section 2(b)(1) of the
Service Contract Act of 1965 (41 U.S.C. 351(b)(1))'' and substitute
``section 6704(a) of title 41''.
(2) In section 1966(a), strike ``section 3709 of the Revised
Statutes, as amended (41 U.S.C. 5)'' and substitute ``section
6101(b) to (d) of title 41''.
(3) In section 3720(b), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(4) In section 7317(f), strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to (d) of
title 41''.
(5) In section 7802(f), strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to (d) of
title 41''.
(6) In section 8122--
(A) in subsection (a)(1), strike ``section 3709 of the
Revised Statutes (41 U.S.C. 5)'' and substitute ``section
6101(b) to (d) of title 41''; and
(B) in subsection (c)--
(i) strike ``(41 U.S.C. 252(c))''; and
(ii) strike ``section 304 of that Act (41 U.S.C. 254)''
and substitute ``sections 3901 and 3905 of title 41''.
(7) In section 8127--
(A) in subsection (b), strike ``section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403)'' and substitute
``section 134 of title 41''; and
(B) in subsection (c)(2), strike ``section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403)'' and substitute
``section 134 of title 41''.
(8) In section 8153(a)--
(A) in paragraph (3)(B)(ii), strike ``section 22 of the
Office of Federal Procurement Policy Act (41 U.S.C. 418b)'' and
substitute ``section 1707 of title 41''; and
(B) in paragraph (3)(D), strike ``section 303(f) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253(f))'' and substitute ``section 3304(e) of title
41''.
(9) In section 8201(e), strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to (d) of
title 41''.
(k) Title 39.--Section 410(b) of title 39, United States Code, is
amended by striking paragraph (5) and substituting--
``(5) chapters 65 and 67 of title 41;''.
(l) Title 40.--Title 40, United States Code, is amended as follows:
(1) In the chapter analysis for chapter 1, in item 111, strike
``Federal Property and Administrative Services Act of 1949'' and
substitute ``division C (except sections 3302, 3501(b), 3509, 3906,
4710, and 4711) of subtitle I of title 41''.
(2) In section 102, before paragraph (1), strike ``title III of
the Federal Property and Administrative Services Act of 1949 (41
U.S.C. 251 et seq.)'' and substitute ``division C (except sections
3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title
41''.
(3) In section 111--
(A) in the section catchline, strike ``Federal Property and
Administrative Services Act of 1949'' and substitute ``division
C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711)
of subtitle I of title 41''; and
(B) before paragraph (1), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251
et seq.)'' and substitute ``division C (except sections 3302,
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title
41''.
(4) In section 113(b)--
(A) in the heading, strike ``the Office of Federal
Procurement Policy Act'' and substitute ``Division B (Except
Sections 1704 and 2303) of Subtitle I of Title 41''; and
(B) strike ``the Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.)'' and substitute ``division B (Except
Sections 1704 and 2303) of subtitle I of title 41''.
(5) In section 311--
(A) in subsection (a), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251
et seq.)'' and substitute ``division C (except sections 3302,
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title
41''; and
(B) in subsection (b), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251
et seq.)'' and substitute ``division C (except sections 3302,
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title
41''.
(6) In section 501(b)(2)(B), strike ``the Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.)'' and substitute
``division B (except sections 1704 and 2303) of subtitle I of title
41''.
(7) In section 502--
(A) in subsection (b)(1)(A)(i), strike ``section 5(3) of the
Javits-Wagner-O'Day Act (41 U.S.C. 48b(3))'' and substitute
``section 8501(7) of title 41'';
(B) in subsection (b)(1)(A)(ii), strike ``handicapped (as
defined in section 5(4) of the Javits-Wagner-O'Day Act (41
U.S.C. 48b(4)))'' and substitute ``disabled (as defined in
section 8501(6) of title 41)'';
(C) in subsection (b)(1)(B), strike ``the Javits-Wagner-O'Day
Act (41 U.S.C. 46 et seq.)'' and substitute ``chapter 85 of
title 41''; and
(D) in subsection (b)(2), strike ``section 2 of the Javits-
Wagner-O'Day Act (41 U.S.C. 47)'' and substitute ``section 8503
of title 41''.
(8) In section 503(b)--
(A) in paragraph (1), strike ``the Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.)'' and substitute
``division B (except sections 1704 and 2303) of subtitle I of
title 41''; and
(B) in paragraph (3)--
(i) in the heading, strike ``Section 3709 of revised
statutes'' and substitute ``Section 6101(b) to (d) of title
41''; and
(ii) strike ``Section 3709 of the Revised Statutes (41
U.S.C. 5)'' and substitute ``Section 6101(b) to (d) of
title 41''.
(9) In section 506(a)(1)(D), strike ``the Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.)'' and substitute
``division B (except sections 1704 and 2303) of subtitle I of title
41''.
(10) In section 545(f), strike ``Section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``Section 6101(b)-(d) of
title 41''.
(11) In section 593(a)(2), strike ``the Javits-Wagner-O'Day Act
(41 U.S.C. 46 et seq.)'' and substitute ``chapter 85 of title 41''.
(12) In section 1305, strike ``title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)''
and substitute ``division C (except sections 3302, 3501(b), 3509,
3906, 4710, and 4711) of subtitle I of title 41''.
(13) In section 1308, strike ``title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)''
and substitute ``division C (except sections 3302, 3501(b), 3509,
3906, 4710, and 4711) of subtitle I of title 41''.
(14) In section 3148, strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to (d) of
title 41''.
(15) In section 3304(d)(2), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251 et
seq.)'' and substitute ``division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41''.
(16) In section 3305(a)--
(A) in paragraph (1), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251
et seq.)'' and substitute ``division C (except sections 3302,
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title
41''; and
(B) in paragraph (2), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251
et seq.)'' and substitute ``division C (except sections 3302,
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title
41''.
(17) In section 3308(a), strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to (d) of
title 41''.
(18) In section 3310(2), strike ``section 303 of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 253)''
and substitute ``sections 3105, 3301, and 3303 to 3305 of title
41''.
(19) In section 3701(b)(3)(A)(ii), strike ``the Walsh-Healey Act
(41 U.S.C. 35 et seq.)'' and substitute ``chapter 65 of title 41''.
(20) In section 3704(b)(1), strike ``sections 4 and 5 of the
Walsh-Healey Act (41 U.S.C. 38, 39)'' and substitute ``sections
6506 and 6507 of title 41''.
(21) In section 3707, strike ``section 4 of the Office of Federal
Procurement Policy Act (41 U.S.C. 403)'' and substitute ``section
103 of title 41''.
(22) In section 6111(b)(2)(D), strike ``section 3709 of the
Revised Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b)
to (d) of title 41''.
(23) In section 8711(d), strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to (d) of
title 41''.
(24) In section 11101--
(A) in paragraph (1), strike ``section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403)'' and substitute
``section 103 of title 41''; and
(B) in paragraph (2), strike ``section 4 of the Act (41
U.S.C. 403)'' and substitute ``section 133 of title 41''.
(m) Title 44.--Title 44, United States Code, is amended as follows:
(1) In the chapter analysis for chapter 3, in the item for
section 311, strike ``the Federal Property and Administrative
Services Act'' and substitute ``subtitle I of title 40 and division
C (except sections 3302, 3501(b), 3509, 3906, 4710, and 4711) of
subtitle I of title 41''.
(2) In section 311--
(A) in the section catchline, strike ``the Federal Property
and Administrative Services Act'' and substitute ``subtitle I
of title 40 and division C (except sections 3302, 3501(b),
3509, 3906, 4710, and 4711) of subtitle I of title 41'';
(B) in subsection (a), strike ``title III of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 251
et seq.)'' and substitute ``division C (except sections 3302,
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title
41''; and
(C) in subsection (c), strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to
(d) of title 41''.
(n) Title 46.--Section 51703(b)(2) of title 46, United States Code,
is amended by striking ``section 3709 of the Revised Statutes (41
U.S.C. 5)'' and substituting ``section 6101(b) to (d) of title 41''.
(o) Title 49.--Title 49, United States Code, is amended as follows:
(1) In section 103(e), strike ``title III of the Federal Property
and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)''
and substitute ``division C (except sections 3302, 3501(b), 3509,
3906, 4710, and 4711) of subtitle I of title 41''.
(2) In section 1113(b)(1)(B) strike ``section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``section 6101(b) to (d) of
title 41''.
(3) In section 5334(j)(2), strike ``Section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``Section 6101(b) to (d) of
title 41''.
(4) In section 10721, strike ``Section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``Section 6101(b) to (d) of
title 41''.
(5) In section 13712, strike ``Section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``Section 6101(b) to (d) of
title 41''.
(6) In section 15504, strike ``Section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``Section 6101(b) to (d) of
title 41''.
(7) In section 40110--
(A) in subsection (d)(2)(A), strike ``Title III of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 252-266)'' and substitute ``Division C (except sections
3302, 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of
title 41'';
(B) in subsection (d)(2)(B), strike ``The Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.)'' and substitute
``Division B (except sections 1704 and 2303) of subtitle I of
title 41'';
(C) in subsection (d)(2)(C), strike ``, except for section
315 (41 U.S.C. 265). For the purpose of applying section 315 of
that Act to the system,'' and substitute ``. However, section
4705 of title 41 shall apply to the new acquisition management
system developed and implemented pursuant to paragraph (1). For
the purpose of applying section 4705 of title 41 to the
system,''; and
(D) in subsection (d)(3)--
(i) in the heading, strike ``the office of federal
procurement policy act'' and substitute ``division b
(except sections 1704 and 2303) of subtitle i of title
41'';
(ii) before subparagraph (A), strike ``section 27 of the
Office of Federal Procurement Policy Act (41 U.S.C. 423)''
and substitute ``chapter 21 of title 41''; and
(iii) in subparagraph (A), strike ``Subsections (f) and
(g)'' and substitute ``Sections 2101 and 2106 of title
41''.
(8) In section 40118(f)(2), strike ``section 4(12) of the Office
of Federal Procurement Policy Act (41 U.S.C. 403(12))'' and
substitute ``section 103 of title 41''.
(9) In section 47305(d), strike ``Section 3709 of the Revised
Statutes (41 U.S.C. 5)'' and substitute ``Section 6101(b) to (d) of
title 41''.
SEC. 6. TRANSITIONAL AND SAVINGS PROVISIONS.
(a) Cutoff Date.--This Act replaces certain provisions of law enacted
on or before December 31, 2008. If a law enacted after that date amends
or repeals a provision replaced by this Act, that law is deemed to
amend or repeal, as the case may be, the corresponding provision
enacted by this Act. If a law enacted after that date is otherwise
inconsistent with this Act, it supersedes this Act to the extent of the
inconsistency.
(b) Original Date of Enactment Unchanged.--For purposes of
determining whether one provision of law supersedes another based on
enactment later in time, the date of enactment of a provision enacted
by this Act is deemed to be the date of enactment of the provision it
replaced.
(c) References to Provisions Replaced.--A reference to a provision of
law replaced by this Act, including a reference in a regulation, order,
or other law, is deemed to refer to the corresponding provision enacted
by this Act.
(d) Regulations, Orders, and Other Administrative Actions.--A
regulation, order, or other administrative action in effect under a
provision of law replaced by this Act continues in effect under the
corresponding provision enacted by this Act.
(e) Actions Taken and Offenses Committed.--An action taken or an
offense committed under a provision of law replaced by this Act is
deemed to have been taken or committed under the corresponding
provision enacted by this Act.
(f) Effective Dates for Certain Actions.--
(1) Issue policy.--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.
(2) Revisions in federal procurement data system or successor
system.--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.
(3) Establish database.--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.
(4) Amend federal acquisition regulation within one year after
october 14, 2008.--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.
(5) Amend federal acquisition regulation within 270 days after
october 14, 2008.--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.
SEC. 7. REPEALS.
(a) Inference of Repeal.--The repeal of a law by this Act may not be
construed as a legislative inference that the provision was or was not
in effect before its repeal.
(b) Repealer Schedule.--The laws specified in the following schedule
are repealed, except for rights and duties that matured, penalties that
were incurred, and proceedings that were begun before the date of
enactment of this Act.
Schedule of Laws Repealed
Statutes at Large
--------------------------------------------------------------------------------------------------------------------------------------------------------
Statutes at Large U.S. Code (title 41 unless otherwise
------------------------------- specified)
Date Chapter or Public Law Section ----------------------------------------
Volume Page Existing Proposed
--------------------------------------------------------------------------------------------------------------------------------------------------------
1875
Mar. 3............................ 133.................. 2.................... 18 455.................. 10 ..............
1884
July 7............................ 332.................. (words after ``fifty 23 204.................. 24 6308
five thousand
dollars'' in 3d par.
under heading
``Miscellaneous
Objects Under the
Treasury
Department'').
1920
June 5............................ 240.................. (last par. under 41 975.................. 23 6307
heading ``Purchase
of Articles
Manufactured at
Government
Arsenals'').
1921
June 30........................... 33................... 1 (last proviso on p. 42 78................... 11a 6302
78).
1922
July 1............................ 259.................. (1st proviso on p. 42 812.................. 23 6307
812).
1926
May 13............................ 294.................. (4th complete par. 44 547.................. 16c ..............
(related to R.S.
Sec. 3741) on p.
547).
1927
Jan. 12........................... 27................... (2d complete par. 44 936.................. 16a ..............
(related to R.S.
Sec. 3741) on p.
936).
1933
Mar. 3............................ 212.................. title III, Sec. 1.... 47 1520................. 10c 8301
.................... title III, Sec. 2.... 47 1520................. 10a 8302
.................... title III, Sec. 3.... 47 1520................. 10b 8303
.................... title III, Sec. 4.... ...... ..................... 10b-1 ..............
June 16........................... 101.................. 5.................... 48 305.................. 24a ..............
1934
Jan. 25........................... 5.................... (related to R.S. Sec. 48 337.................. 22 6306
3741).
June 16........................... 553.................. 1-6.................. 48 974.................. 28-33 ..............
1935
Aug. 29........................... 815.................. ..................... 49 990.................. 34 ..............
1936
June 30........................... 881.................. 1 (matter before 49 2036................. 35 6502
subsec. (a) less
words related to
definition of
``agency of the
United States'').
.................... 1 (matter before 49 2036................. 35 6501
subsec. (a) related
to definition of
``agency of the
United States'').
.................... 1(a)-(d)............. 49 2036................. 35 6502
.................... 2.................... 49 2037................. 36 6503
.................... 3.................... 49 2037................. 37 6504
.................... 4.................... 49 2038................. 38 6506
.................... 5.................... 49 2038................. 39 6507
.................... 6.................... 49 2038................. 40 6508
.................... 7.................... 49 2039................. 41 6501
.................... 8.................... 49 2039................. 42 6511
.................... 9.................... 49 2039................. 43 6505
.................... 10(a)................ ...... ..................... 43a 6509
.................... 10(b) (1st sentence). ...... ..................... 43a 6507
.................... 10(b) (last ...... ..................... 43a 6509
sentence), (c).
.................... 11................... ...... ..................... 43b 6510
.................... 12................... 49 2039................. 44 ..............
.................... 13................... 49 2039................. 45 6502
1938
June 25........................... 697.................. 1.................... 52 1196................. 46 8502
.................... 2.................... 52 1196................. 47 8503
.................... 3.................... 52 1196................. 48 8504
.................... 4.................... 52 1196................. 48a 8505
.................... 5.................... 52 1196................. 48b 8501
.................... 6.................... 52 1196................. 48c 8506
.................... 7.................... ...... ..................... 46 note ..............
1939
Aug. 4............................ 418.................. 13 (related to R.S. 53 1197................. 16d ..............
Sec. 3744).
1940
June 18........................... 396.................. (last par. (related 54 474.................. 6kk ..............
to R.S. Sec. 3709)
under heading
``Botanic Garden'').
.................... (last par. (related 54 474.................. 16b ..............
to R.S. Sec. 3744)
under heading
``Botanic Garden'').
June 24........................... 412.................. ..................... 54 504.................. 6b 6102
Oct. 10........................... 851.................. 2(a)................. 54 1110................. 6a 6102
.................... 2(f)................. 54 1110................. 6a 6102
.................... 2(h)................. 54 1110................. 6a 6102
.................... 2(j)................. 54 1110................. 6a 6102
.................... 3(a)................. 54 1111................. 6b ..............
.................... 3(b)................. 54 1111................. 6b ..............
1942
June 22........................... 432.................. 1.................... 56 375.................. 49 6309
.................... 2.................... 56 376.................. 50 6309
July 2............................ 472.................. (1st complete par. on 56 493.................. 6 ..............
p. 493).
1944
July 1............................ 358.................. 1, 2(a).............. 58 649.................. 101, 102 ..............
.................... 3.................... 58 650.................. 103 ..............
.................... 4(b)-13(c)........... 58 651.................. 104-113 ..............
.................... 13(d)................ 58 662.................. 113 ..............
.................... 13(e)-15............. 58 662.................. 113-115 ..............
.................... 17, 18(a)............ 58 665.................. 117, 118 ..............
.................... 18(c)-(e)............ 58 666.................. 118 ..............
.................... 19(c)................ 58 667.................. 119 ..............
.................... 20-25................ 58 668.................. 120-125 ..............
.................... 26................... 58 671.................. 101 note ..............
.................... 27................... 58 671.................. 101 note ..............
1946
Mar. 8............................ 80................... 1.................... 60 37................... 51 ..............
.................... 2.................... 60 37................... 52 8701
.................... 3.................... 60 37................... 53 8702
.................... 4.................... 60 37................... 54 8707
.................... 5.................... 60 37................... 55 8706
.................... 6.................... 60 37................... 56 8705
.................... 7.................... 60 37................... 57 8703
.................... 8.................... 60 37................... 58 8704
Aug. 2............................ 744.................. 9(c)................. 60 809.................. 5 6101
.................... 18................... 60 811.................. 5a 6101
1949
June 30........................... 288.................. 301.................. 63 393.................. 251 ..............
.................... 302(a)............... 63 393.................. 252 3101
.................... 302(b)............... 63 393.................. 252 3104
.................... 302(c)(1)............ 63 393.................. 252 3106
.................... 302(c)(2)............ ...... ..................... 252 3301
.................... 302A, 302B........... ...... ..................... 252a, 252b 3101
.................... 302C................. ...... ..................... 252c 4709
.................... 303(a)............... 63 395.................. 253 3301
.................... 303(b)............... 63 395.................. 253 3303
.................... 303(c)-(f)........... 63 395.................. 253 3304
.................... 303(g)............... 63 395.................. 253 3305
.................... 303(h)............... ...... ..................... 253 3301
.................... 303(i)............... ...... ..................... 253 3105
.................... 303(j)............... ...... ..................... 253 3304
.................... 303A................. ...... ..................... 253a 3306
.................... 303B(a), (b)......... ...... ..................... 253b 3701
.................... 303B(c).............. ...... ..................... 253b 3702
.................... 303B(d).............. ...... ..................... 253b 3703
.................... 303B(e).............. ...... ..................... 253b 3704
.................... 303B(f).............. ...... ..................... 253b 3705
.................... 303B(g).............. ...... ..................... 253b 3704, 3705
.................... 303B(h).............. ...... ..................... 253b 3706
.................... 303B(i).............. ...... ..................... 253b 3707
.................... 303B(j).............. ...... ..................... 253b 3308
.................... 303B(k), (l)......... ...... ..................... 253b 3708
.................... 303B(m).............. ...... ..................... 253b 4702
.................... 303C................. ...... ..................... 253c 3311
.................... 303D................. ...... ..................... 253d 4703
.................... 303F................. ...... ..................... 253f 3310
.................... 303G................. ...... ..................... 253g 4704
.................... 303H................. ...... ..................... 253h 4103
.................... 303I................. ...... ..................... 253i 4105
.................... 303J................. ...... ..................... 253j 4106
.................... 303K................. ...... ..................... 253k 4101
.................... 303L................. ...... ..................... 253l 3902
.................... 303M................. ...... ..................... 253m 3309
.................... 304(a)............... 63 395.................. 254 3901
.................... 304(b)............... 63 395.................. 254 3905
.................... 304A(a).............. ...... ..................... 254b 3502
.................... 304A(b).............. ...... ..................... 254b 3503
.................... 304A(c).............. ...... ..................... 254b 3504
.................... 304A(d).............. ...... ..................... 254b 3505
.................... 304A(e).............. ...... ..................... 254b 3506
.................... 304A(f).............. ...... ..................... 254b 3507
.................... 304A(g).............. ...... ..................... 254b 3508
.................... 304A(h).............. ...... ..................... 254b 3501
.................... 304B................. ...... ..................... 254c 3903
.................... 304C................. ...... ..................... 254d 4706
.................... 305(a)............... 63 396.................. 255 4501
.................... 305(b)............... ...... ..................... 255 4502
.................... 305(c)............... 63 396.................. 255 4502
.................... 305(d)............... 63 396.................. 255 4503
.................... 305(e)............... ...... ..................... 255 4504
.................... 305(f)............... ...... ..................... 255 4505
.................... 305(g)............... ...... ..................... 255 4506
.................... 306(a)-(d)........... ...... ..................... 256 4303
.................... 306(e)............... ...... ..................... 256 4304
.................... 306(f)............... ...... ..................... 256 4305
.................... 306(g)............... ...... ..................... 256 4306
.................... 306(h)............... ...... ..................... 256 4307
.................... 306(i)............... ...... ..................... 256 4308
.................... 306(j)............... ...... ..................... 256 4309
.................... 306(k)............... ...... ..................... 256 4310
.................... 306(l)(1)............ ...... ..................... 256 4301
.................... 306(l)(2)............ ...... ..................... 256 4302
.................... 306(m)............... ...... ..................... 256 4301
.................... 307.................. 63 396.................. 257 4701
.................... 309(a)............... 63 397.................. 259 151
.................... 309(b)............... ...... ..................... 259 152
.................... 309(c)(1)............ ...... ..................... 259 111
.................... 309(c)(2)............ ...... ..................... 259 112
.................... 309(c)(3)............ ...... ..................... 259 114
.................... 309(c)(4)............ ...... ..................... 259 107
.................... 309(c)(5)............ ...... ..................... 259 113
.................... 309(c)(6)............ ...... ..................... 259 116
.................... 309(c)(7)............ ...... ..................... 259 109
.................... 309(c)(8), (9)....... ...... ..................... 259 108
.................... 309(c)(10)........... ...... ..................... 259 115
.................... 309(c)(11)........... ...... ..................... 259 103
.................... 309(c)(12)........... ...... ..................... 259 110
.................... 309(c)(13)........... ...... ..................... 259 102
.................... 309(c)(14)........... ...... ..................... 259 105
.................... 309(d)............... ...... ..................... 259 153
.................... 309(e)............... ...... ..................... 259 106
.................... 310.................. 63 397.................. 260 3101
.................... 311.................. ...... ..................... 261 3102
.................... 312.................. ...... ..................... 262 4701
.................... 313.................. ...... ..................... 263 3103
.................... 314.................. ...... ..................... 264 3307
.................... 314A (``commercial ...... ..................... 264a (``commercial 103
item''). item'')
.................... 314A ...... ..................... 264a 110
(``nondevelopmental (``nondevelopmental
item''). item'')
.................... 314A (``component''). ...... ..................... 264a (``component'') 105
.................... 314A (``commercial ...... ..................... 264a (``commercial 102
component''). component'')
.................... 314B................. ...... ..................... 264b 3307
.................... 315.................. ...... ..................... 265 4705
.................... 316.................. ...... ..................... 266 3105
Oct. 29........................... 787.................. 633.................. 63 1024................. 10d 8303
1950
Sept. 5........................... 849.................. 10(a)................ 64 591.................. 256a 4707
1952
July 14........................... 739.................. ..................... 66 627.................. 113, 113 note ..............
1954
May 11............................ 199.................. 1.................... 68 81................... 321 ..............
.................... 2.................... 68 81................... 322 ..............
1957
July 1............................ 85-75................ (last par. on p. 251) 71 251.................. 6a ..............
1961
Aug. 3............................ 87-125............... 301.................. 75 279.................. 6b ..............
1962
Sept. 5........................... 87-638............... ..................... 76 437.................. 254a 4708
1965
July 27........................... 89-90................ (2d par. on p. 276).. 79 276.................. 6a-1 6102
Oct. 22........................... 89-286............... 1.................... 79 1034................. 351 note ..............
.................... 2(a) (words before 79 1034................. 351 6702
par. (1) related to
applicability).
.................... 2(a) (words before 79 1034................. 351 6703
par. (1) related to
required contract
terms), (1)-(5).
.................... 2(b)................. 79 1034................. 351 6704
.................... 3.................... 79 1035................. 352 6705
.................... 4.................... 79 1035................. 353 6707
.................... 5(a)................. 79 1035................. 354 6706
.................... 5(b)................. 79 1035................. 354 6705
.................... 6.................... 79 1035................. 355 6707
.................... 7.................... 79 1035................. 356 6702
.................... 8.................... 79 1036................. 357 6701
.................... 9.................... 79 1036................. 351 note ..............
.................... 10................... ...... ..................... 358 6707
1974
Aug. 30........................... 93-400............... 4(1)................. 88 797.................. 403 133
.................... 4(2)................. 88 797.................. 403 111
.................... 4(3)................. 88 797.................. 403 112
.................... 4(4)................. 88 797.................. 403 114
.................... 4(5)................. ...... ..................... 403 132
.................... 4(6)................. ...... ..................... 403 107
.................... 4(7)................. ...... ..................... 403 113
.................... 4(8)................. ...... ..................... 403 116
.................... 4(9)................. ...... ..................... 403 109
.................... 4(10) (``item'', ...... ..................... 403 108
``item of supply'').
.................... 4(10) (``supplies''). ...... ..................... 403 115
.................... 4(11)................ ...... ..................... 403 134
.................... 4(12)................ ...... ..................... 403 103
.................... 4(13)................ ...... ..................... 403 110
.................... 4(14)................ ...... ..................... 403 105
.................... 4(15)................ ...... ..................... 403 102
.................... 4(16)................ ...... ..................... 403 131
.................... 4(17)................ ...... ..................... 403 1301
.................... 5(a)................. 88 797.................. 404 1101
.................... 5(b)................. 88 797.................. 404 1102
.................... 6(a)-(c)............. 88 797.................. 405 1121
.................... 6(d), (e)............ 88 797.................. 405 1122
.................... 6(f)................. 88 797.................. 405 1121
.................... 6(g)................. 88 797.................. 405 1122
.................... 6(h)(1).............. 88 797.................. 405 1130
.................... 6(h)(2).............. 88 797.................. 405 2305
.................... 6(i)................. 88 797.................. 405 1125
.................... 6(j)................. ...... ..................... 405 1126
.................... 6(k)................. ...... ..................... 405 1131
.................... 7.................... 88 798.................. 406 1701
.................... 9.................... 88 799.................. 408 1121
.................... 11................... 88 799.................. 410 1101
.................... 12................... 88 799.................. 411 1122
.................... 14(a)................ 88 800.................. 412 2307
.................... 14(b)................ 88 800.................. 412 2306
.................... 15................... ...... ..................... 413 1124
.................... 16................... ...... ..................... 414 1702
.................... 16A(a)-(c)........... ...... ..................... 414b 1311
.................... 16A(d), (e).......... ...... ..................... 414b 1312
.................... 18................... ...... ..................... 416 1708
.................... 19................... ...... ..................... 417 1712
.................... 20................... ...... ..................... 418 1705
.................... 21................... ...... ..................... 418a 2302
.................... 22................... ...... ..................... 418b 1707
.................... 23................... ...... ..................... 419 1709
.................... 25(a), (b)........... ...... ..................... 421 1302
.................... 25(c)-(f)............ ...... ..................... 421 1303
.................... 26(a)-(e)............ ...... ..................... 422 1501
.................... 26(f)-(h)(1)......... ...... ..................... 422 1502
.................... 26(h)(2)-(4)......... ...... ..................... 422 1503
.................... 26(i)................ ...... ..................... 422 ..............
.................... 26(j)................ ...... ..................... 422 1504
.................... 26(k)................ ...... ..................... 422 1505
.................... 26(l)................ ...... ..................... 422 1506
.................... 27(a), (b)........... ...... ..................... 423 2102
.................... 27(c)................ ...... ..................... 423 2103
.................... 27(d)................ ...... ..................... 423 2104
.................... 27(e)................ ...... ..................... 423 2105
.................... 27(f)................ ...... ..................... 423 2101
.................... 27(g)................ ...... ..................... 423 2106
.................... 27(h)................ ...... ..................... 423 2107
.................... 29................... ...... ..................... 425 1304
.................... 30................... ...... ..................... 426 2301
.................... 31................... ...... ..................... 427 1901
.................... 32................... ...... ..................... 428 1902
.................... 32A.................. ...... ..................... 428a 1903
.................... 33................... ...... ..................... 429 1905
.................... 34................... ...... ..................... 430 1906
.................... 35(a), (b)........... ...... ..................... 431 1907
.................... 35(c)................ ...... ..................... 431 104
.................... 35A.................. ...... ..................... 431a 1908
.................... 36................... ...... ..................... 432 1711
.................... 37................... ...... ..................... 433 1703
.................... 38................... ...... ..................... 434 2308
.................... 39................... ...... ..................... 435 1127
.................... 40................... ...... ..................... 436 2309
.................... 41................... ...... ..................... 437 2310
.................... 42................... ...... ..................... 438 7105
.................... 43................... ...... ..................... 439 1710
.................... 44................... ...... ..................... 440 2312
1978
Oct. 24........................... 95-507............... 222 (1st sentence)... 92 1771................. 405a 1121
.................... 222 (last sentence).. 92 1771................. 405a 1123
Nov. 1............................ 95-563............... 1.................... 92 2383................. 601 note ..............
.................... 2.................... 92 2383................. 601 7101
.................... 3.................... 92 2383................. 602 7102
.................... 4.................... 92 2384................. 603 7102
.................... 5.................... 92 2384................. 604 7103
.................... 6(a) (1st, 2d 92 2384................. 605 7103
sentences).
.................... 6(a) (3d, 4th ...... ..................... 605 7103
sentences).
.................... 6(a) (5th-last 92 2384................. 605 7103
sentences), (b),
(c)(1)-(5).
.................... 6(c)(6), (7), (d), ...... ..................... 605 7103
(e).
.................... 7.................... 92 2385................. 606 7104
.................... 8(a)-(e)............. 92 2385................. 607 7105
.................... 8(f)................. 92 2386................. 607 7106
.................... 8(g)................. 92 2387................. 607 7107
.................... 9.................... 92 2387................. 608 7106
.................... 10(a)................ 92 2388................. 609 7104
.................... 10(b)-(e)............ 92 2388................. 609 7107
.................... 10(f)................ ...... ..................... 609 7107
.................... 11................... 92 2388................. 610 7105
.................... 12................... 92 2389................. 611 7109
.................... 13................... 92 2389................. 612 7108
.................... 15................... 92 2391................. 613 ..............
.................... 16................... 92 2391................. 601 note ..............
1984
Oct. 30........................... 98-577............... 502.................. 98 3085................. 414a 1706
1988
Oct. 1............................ 100-463.............. 8141................. 102 2270-47.............. 405b 2304
Oct. 25........................... 100-533.............. 502.................. 102 2697................. 417a 1713
Nov. 18........................... 100-690.............. 5151................. 102 4304................. 701 note ..............
.................... 5152................. 102 4304................. 701 8102
.................... 5153................. 102 4306................. 702 8103
.................... 5154................. 102 4307................. 703 8104
.................... 5155................. 102 4307................. 704 8105
.................... 5156................. 102 4308................. 705 8106
.................... 5157, 5158........... 102 4308................. 706, 707 8101
.................... 5160................. 102 4308................. 701 note ..............
1992
Oct. 29........................... 102-572.............. 907(a)(3)............ 106 4518................. 611 note 7109
1993
Nov. 30........................... 103-160.............. 849(c), (d).......... 107 1725................. 10b-2 8304
1994
Oct. 13........................... 103-355.............. 1054(b).............. 108 3265................. 253h note 4102
.................... 8002................. 108 3386................. 264 note 3307
1996
Sept. 23.......................... 104-201.............. 827.................. 110 2611................. 10b-3 8305
1997
June 12........................... 105-18............... 7004................. 111 192.................. 253l-1 3904
1999
Sept. 29.......................... 106-57............... 207.................. 113 423.................. 253l-2 3904
Oct. 5............................ 106-65............... 804.................. 113 704.................. 253h note 4104
2000
Dec. 21........................... 106-554.............. 1(a)(2) [title I, 114 2763A-100............ 253l-3 3904
Sec. 101].
.................... 1(a)(2) [title I, 114 2763A-108............ 253l-4 3904
Sec. 110].
2003
Feb. 20........................... 108-7................ div. H, title I, Sec. 117 350.................. 253l-5 3904
5.
.................... div. H, title I, Sec. 117 354.................. 6a-3 6102
104.
.................... div. H, title I, Sec. 117 357.................. 253l-6 3904
1002.
.................... div. H, title I, Sec. 117 370.................. 6a-4 6102
1102.
.................... div. H, title I, Sec. 117 373.................. 253l-7 3904
1202.
Aug. 15........................... 108-72............... 4.................... 117 889.................. 253l-8 3904
Nov. 24........................... 108-136.............. 1412(a).............. 117 1664................. 433 note 1703
.................... 1413................. 117 1665................. 433 note 1703
.................... 1414................. 117 1666................. 433 note 1128
.................... 1428................. 117 1670................. 253a note 3306
.................... 1431(b).............. 117 1671................. 405 note 1129
.................... 1441................. 117 1673................. 428a note 1904
2004
Oct. 28........................... 108-375.............. 807(c)............... 118 2011................. 431a note 1908
2008
Jan. 28........................... 110-181.............. 855.................. 122 251.................. 433a 1704
June 30........................... 110-252.............. 6102, 6103........... 122 2386, 2387........... 251 note 3509
Oct. 14........................... 110-417.............. [div. A], title VIII, 122 4537................. 405c(a) 2303
841(a).
.................... [div. A], title VIII, 122 4539................. 405c(c) 2303
841(c).
.................... [div. A], title VIII, 122 4547................. 253h note 3302
863(a)-(e).
.................... [div. A], title VIII, 122 4549................. 254 note 3906
864(a), (b), (d),
(e), (f)(2), (g).
.................... [div. A], title VIII, 122 4551................. 254b note 4710
866.
.................... [div. A], title VIII, 122 4551................. 251 note 4711
867.
.................... [div. A], title VIII, 122 4552................. 254b note 3501
868.
.................... [div. A], title VIII, 122 4553................. 433a note 1704
869.
.................... [div. A], title VIII, 122 4555................. 417b 2313
872.
.................... [div. A], title VIII, 122 4558................. 405 note 2311
874(a).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Revised Statutes
----------------------------------------------------------------------------------------------------------------
United States Code (title 41)
Revised Statutes Section -------------------------------------------------
Existing Proposed
----------------------------------------------------------------------------------------------------------------
3709.......................................................... 5 6101
3710.......................................................... 8 6103
3732.......................................................... 11 6301
3733.......................................................... 12 6303
3735.......................................................... 13 6304
3736.......................................................... 14 6301
3737.......................................................... 15 6305
3741.......................................................... 22 6306
----------------------------------------------------------------------------------------------------------------
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.