For additional definitions of terms used in this division, with certain exceptions, see section 102 of Title 40, Public Buildings, Property, and Works.
Pub. L. 115–254, div. B, title V, §555, Oct. 5, 2018, 132 Stat. 3381, as amended by Pub. L. 117–81, div. A, title XVII, §1702(i)(1), Dec. 27, 2021, 135 Stat. 2159, provided that:
"(a)
"(1)
"(2)
"(3)
"(4)
"(b)
"(c)
"(1)
"(2)
"(d)
"(1) when the President has issued an emergency declaration or a major disaster declaration pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.);
"(2) in other emergency situations if the agency head makes a determination that obtaining such equipment is necessary in order to protect human life or property; or
"(3) when otherwise authorized by law.
"(e)
"(f)
"(1)
"(2)
"(3)
"(4)
Pub. L. 112–239, div. A, title VIII, §862, Jan. 2, 2013, 126 Stat. 1859, provided that:
"(a)
"(1) establish uniform data standards, internal control requirements, independent verification and validation requirements, and business process rules for processing procurement requests, contracts, receipts, and invoices by the Department of Defense or other executive agencies, as applicable;
"(2) establish and maintain one or more approved electronic contract writing systems that conform with the standards, requirements, and rules established pursuant to paragraph (1); and
"(3) require the use of electronic contract writing systems approved in accordance with paragraph (2) for all contracts entered into by the Department of Defense or other executive agencies, as applicable.
"(b)
"(1) The Secretary of Defense, with respect to the Department of Defense and the military departments.
"(2) The Administrator for Federal Procurement Policy, with respect to the executive agencies other than the Department of Defense and the military departments.
"(c)
"(d)
"(e)
"(1) describe the standards, requirements, and rules established pursuant to subsection (a)(1);
"(2) identify the electronic contract writing systems approved pursuant to subsection (a)(2) and, if multiple systems are approved, explain why the use of such multiple systems is the most efficient and effective approach to meet the contract writing needs of the Federal Government; and
"(3) provide the schedule for phasing in the use of approved electronic contract writing systems in accordance with subsections (a)(3) and (d).
"(f)
"(1) The term 'appropriate committees of Congress' means—
"(A) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on Appropriations of the Senate; and
"(B) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Oversight and Government Reform, and the Committee on Appropriations of the House of Representatives.
"(2) The term 'executive agency' has the meaning given that term in section 133 of title 41, United States Code."
(a)
(b)
(1)
(A)
(B)
(2)
(c)
(1)
(A) to the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration; or
(B) except as provided in paragraph (2), when this division is made inapplicable pursuant to law.
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3742.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3101(a) | 41:252(a) (words before 1st semicolon). | June 30, 1949, ch. 288, title III, §302(a), 63 Stat. 393; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §1, Aug. 28, 1958, 72 Stat. 966; Pub. L. 89–343, §1, Nov. 8, 1965, 79 Stat. 1303. |
| 3101(b)(1) | 41:252a. | June 30, 1949, ch. 288, title III, §302A, as added Pub. L. 103–355, title IV, §§4003, 4103(a), Oct. 13, 1994, 108 Stat. 3338, 3341. |
| 3101(b)(2) | 41:252b. | June 30, 1949, ch. 288, title III, §302B, as added Pub. L. 103–355, title IV, §4203(b), Oct. 13, 1994, 108 Stat. 3346. |
| 3101(c)(1) | 41:252(a) (words after 1st semicolon and before "but when"). | |
| 3101(c)(2) | 41:252(a) (words after "other law"). | |
| 41:260. | June 30, 1949, ch. 288, title III, §310, 63 Stat. 397; July 12, 1952, ch. 703, §1(m), (n), 66 Stat. 594; Pub. L. 85–800, §6, Aug. 28, 1958, 72 Stat. 967; Pub. L. 89–343, §5, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 98–369, div. B, title VII, §2714(a)(6), July 18, 1984, 98 Stat. 1185. |
In subsection (c)(1)(B), the words "except as provided in paragraph (2)" are added for clarity. The words "section 113(e) of title 40 or any other" are omitted as unnecessary.
Ex. Ord. No. 13005, May 21, 1996, 61 F.R. 26069, provided:
In order to promote economy and efficiency in Federal procurement, it is necessary to secure broad-based competition for Federal contracts. This broad competition is best achieved where there is an expansive pool of potential contractors capable of producing quality goods and services at competitive prices. A great and largely untapped opportunity for expanding the pool of such contractors can be found in this Nation's economically distressed communities.
Fostering growth of Federal contractors in economically distressed communities and ensuring that those contractors become viable businesses for the long term will promote economy and efficiency in Federal procurement and help to empower those communities. Fostering growth of long-term viable contractors will be promoted by offering appropriate incentives to qualified businesses.
Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States, including section 486(a) [now 121(a)] of title 40, United States Code, and section 301 of title 3, United States Code, it is hereby ordered as follows:
(a) monitor the implementation and operation of the policies and procedures developed in accordance with this order;
(b) develop a process to ensure the proper administration of the program and to reduce the potential for fraud by the intended beneficiaries of the program;
(c) develop principles and a process to evaluate the effectiveness of the policies and procedures developed in accordance with this order; and
(d) by December 1 of each year, issue a report to the President on the status and effectiveness of the program.
(a) issue rules, regulations, and guidelines necessary to implement this order, including a requirement for the periodic review of the eligibility of qualified businesses and distressed areas;
(b) draft all rules, regulations, and guidelines necessary to implement this order within 90 days of the date of this order; and
(c) ensure that all policies and procedures and all rules, regulations, and guidelines adopted and implemented in accordance with this order minimize the administrative burden on affected agencies and the procurement process.
(a) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10).
(b) "Area of general economic distress" shall be defined, for all urban and rural communities, as any census tract that has a poverty rate of at least 20 percent or any designated Federal Empowerment Zone, Supplemental Empowerment Zone, Enhanced Enterprise Community, or Enterprise Community. In addition, the Secretary may designate as an area of general economic distress any additional rural or Indian reservation area after considering the following factors:
(1) Unemployment rate;
(2) Degree of poverty;
(3) Extent of outmigration; and
(4) Rate of business formation and rate of business growth.
(c) "Qualified large business" means a large for-profit or not-for-profit trade or business that (1) employs a significant number of residents from the area of general economic distress; and (2) either has a significant physical presence in the area of general economic distress or has a direct impact on generating significant economic activity in the area of general economic distress.
(d) "Qualified small business" means a small for-profit or not-for-profit trade or business that (1) employs a significant number of residents from the area of general economic distress; (2) has a significant physical presence in the area of general economic distress; or (3) has a direct impact on generating significant economic activity in the area of general economic distress.
(e) "Secretary" means the Secretary of Commerce.
William J. Clinton.
Ex. Ord. No. 13627, Sept. 25, 2012, 77 F.R. 60029, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act (40 U.S.C. 101 et seq.) and the Trafficking Victims Protection Act of 2000, as amended (TVPA) (Public Law 106–386, Division A), and in order to strengthen protections against trafficking in persons in Federal contracting, it is hereby ordered as follows:
The United States has long had a zero-tolerance policy regarding Government employees and contractor personnel engaging in any form of this criminal behavior. As the largest single purchaser of goods and services in the world, the United States Government bears a responsibility to ensure that taxpayer dollars do not contribute to trafficking in persons. By providing our Government workforce with additional tools and training to apply and enforce existing policy, and by providing additional clarity to Government contractors and subcontractors on the steps necessary to fully comply with that policy, this order will help to protect vulnerable individuals as contractors and subcontractors perform vital services and manufacture the goods procured by the United States.
In addition, the improved safeguards provided by this order to strengthen compliance with anti-trafficking laws will promote economy and efficiency in Government procurement. These safeguards, which have been largely modeled on successful practices in the private sector, will increase stability, productivity, and certainty in Federal contracting by avoiding the disruption and disarray caused by the use of trafficked labor and resulting investigative and enforcement actions.
(1) strengthen the efficacy of the Government's zero-tolerance policy on trafficking in persons by Federal contractors and subcontractors in solicitations, contracts, and subcontracts for supplies or services (including construction and commercial items), by:
(A) expressly prohibiting Federal contractors, contractor employees, subcontractors, and subcontractor employees from engaging in any of the following types of trafficking-related activities:
(i) using misleading or fraudulent recruitment practices during the recruitment of employees, such as failing to disclose basic information or making material misrepresentations regarding the key terms and conditions of employment, including wages and fringe benefits, the location of work, living conditions and housing (if employer provided or arranged), any significant costs to be charged to the employee, and, if applicable, the hazardous nature of the work;
(ii) charging employees recruitment fees;
(iii) destroying, concealing, confiscating, or otherwise denying access by an employee to the employee's identity documents, such as passports or drivers' licenses; and
(iv) for portions of contracts and subcontracts:
(I) performed outside the United States, failing to pay return transportation costs upon the end of employment, for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working on a U.S. Government contract or subcontract;
(II) not covered by subsection (a)(1)(A)(iv)(I) of this section, failing to pay return transportation costs upon the end of employment, for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working on a U.S. Government contract or subcontract, if the payment of such costs is required under existing temporary worker programs or pursuant to a written agreement with the employee; provided, however
(III) that the requirements of subsections (a)(1)(A)(iv)(I) and (II) shall not apply to:
(aa) an employee who is legally permitted to remain in the country of employment and who chooses to do so; or
(bb) an employee who is a victim of trafficking and is seeking victim services or legal redress in the country of employment, or an employee who is a witness in a trafficking-related enforcement action;
(v) other specific activities that the FAR Council identifies as directly supporting or promoting trafficking in persons, the procurement of commercial sex acts, or the use of forced labor in the performance of the contract or subcontract;
(B) requiring contractors and their subcontractors, by contract clause, to agree to cooperate fully in providing reasonable access to allow contracting agencies and other responsible enforcement agencies to conduct audits, investigations, or other actions to ascertain compliance with the TVPA, this order, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor; and
(C) requiring contracting officers to notify, in accordance with agency procedures, the agency's Inspector General, the agency official responsible for initiating suspension or debarment actions, and law enforcement, if appropriate, if they become aware of any activities that would justify termination under section 106(g) of the TVPA, 22 U.S.C. 7104(g), or are inconsistent with the requirements of this order or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor, and further requiring that the agency official responsible for initiating suspension and debarment actions consider whether suspension or debarment is necessary in order to protect the Government's interest;
(2) except as provided in subsection (a)(3) of this section, ensure that provisions in solicitations and clauses in contracts and subcontracts, where the estimated value of the supplies acquired or services required to be performed outside the United States exceeds $500,000, include the following requirements pertaining to the portion of the contract or subcontract performed outside the United States:
(A) that each such contractor and subcontractor maintain a compliance plan during the performance of the contract or subcontract that is appropriate for the size and complexity of the contract or subcontract and the nature and scope of the activities performed, including the risk that the contract or subcontract will involve services or supplies susceptible to trafficking. The compliance plan shall be provided to the contracting officer upon request, and relevant contents of the plan shall be posted no later than the initiation of contract performance at the workplace and on the contractor or subcontractor's Web site (if one is maintained), and shall, at a minimum, include:
(i) an awareness program to inform employees about:
(I) the policy of ensuring that employees do not engage in trafficking in persons or related activities, including those specified in subsection (a)(1)(A) of this section, the procurement of commercial sex acts, or the use of forced labor; and
(II) the actions that will be taken against employees for violation of such policy;
(ii) a process for employees to report, without fear of retaliation, any activity that would justify termination under section 106(g) of the TVPA, or is inconsistent with the requirements of this order, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor;
(iii) a recruitment and wage plan that only permits the use of recruitment companies with trained employees, prohibits charging recruitment fees to the employee, and ensures that wages meet applicable host country legal requirements or explains any variance;
(iv) a housing plan, if the contractor or subcontractor intends to provide or arrange housing, that ensures that the housing meets host country housing and safety standards or explains any variance; and
(v) procedures to prevent subcontractors at any tier from engaging in trafficking in persons, including those trafficking-related activities described in subsection (a)(1)(A) of this section, and to monitor, detect, and terminate any subcontractors or subcontractor employees that have engaged in such activities; and
(B) that each such contractor and subcontractor shall certify, prior to receiving an award and annually thereafter during the term of the contract or subcontract, that:
(i) it has the compliance plan referred to in subsection (a)(2)(A) of this section in place to prevent trafficking-related activities described in section 106(g) of the TVPA and this order; and
(ii) either, to the best of its knowledge and belief, neither it nor any of its subcontractors has engaged in any such activities; or, if abuses have been found, the contractor or subcontractor has taken the appropriate remedial and referral actions;
(3) specify that the requirements in subsections (a)(2)(A) and (B) of this section shall not apply with respect to contracts or subcontracts for commercially available off-the-shelf items.
(b) Not later than 1 year after the date of this order, the member agencies of the President's Interagency Task Force to Monitor and Combat Trafficking in Persons (PITF), established pursuant to section 105 of the TVPA, 22 U.S.C. 7103, shall jointly establish a process for evaluating and identifying, for Federal contracts and subcontracts performed substantially within the United States, whether there are industries or sectors with a history (or where there is current evidence) of trafficking-related or forced labor activities described in section 106(g) of the TVPA, in subsection (a)(1)(A) of this section, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor. Where the PITF has identified such industries or sectors, it shall notify agencies of these designations, and individual agencies shall, in consultation with the Office of Federal Procurement Policy of the Office of Management and Budget, adopt and publish appropriate safeguards, guidance, and compliance assistance to prevent trafficking and forced labor in Federal contracting in these identified areas.
(1) in consultation with appropriate management councils, such as the Chief Acquisition Officers Council, provide guidance to agencies on developing appropriate internal procedures and controls for awarding and administering Federal contracts to improve monitoring of and compliance with actions to prevent trafficking in persons, consistent with section 106 of the TVPA, including the development of methods to track the number of trafficking violations reported and remedies applied; and
(2) in consultation with the Federal Acquisition Institute and appropriate management councils, such as the Chief Acquisition Officers Council:
(A) develop methods to track the number of Federal employees trained; and
(B) implement training requirements to ensure that the Federal acquisition workforce is trained on the policies and responsibilities for combating trafficking, including on:
(i) applicable laws, regulations, and policies; and
(ii) internal controls and oversight procedures implemented by the agency, including enforcement procedures available to the agency to investigate, manage, and mitigate contractor and subcontractor trafficking violations.
(b) The member agencies of PITF shall jointly facilitate the sharing of information that may be used by acquisition, program, and other offices within agencies to evaluate where the risk of trafficking in persons may be heightened based on the nature of the work to be performed, the place of performance, and any other relevant considerations.
(1) the authority granted by law to an executive department, agency, or the head thereof; or
(2) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Ex. Ord. No. 13673, July 31, 2014, 79 F.R. 45309, as amended by Ex. Ord. No. 13683, §3, Dec. 11, 2014, 79 F.R. 75042; Ex. Ord. No. 13738, Aug. 23, 2016, 81 F.R. 58807, which related to compliance with labor laws by Federal contractors, was revoked by Ex. Ord. No. 13782, §1, Mar. 27, 2017, 82 F.R. 15607, set out below.
Ex. Ord. No. 13782, Mar. 27, 2017, 82 F.R. 15607, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
Memorandum of President of the United States, Mar. 4, 2009, 74 F.R. 9755, provided:
Memorandum for the Heads of Executive Departments and Agencies
The Federal Government has an overriding obligation to American taxpayers. It should perform its functions efficiently and effectively while ensuring that its actions result in the best value for the taxpayers.
Since 2001, spending on Government contracts has more than doubled, reaching over $500 billion in 2008. During this same period, there has been a significant increase in the dollars awarded without full and open competition and an increase in the dollars obligated through cost-reimbursement contracts. Between fiscal years 2000 and 2008, for example, dollars obligated under cost-reimbursement contracts nearly doubled, from $71 billion in 2000 to $135 billion in 2008. Reversing these trends away from full and open competition and toward cost-reimbursement contracts could result in savings of billions of dollars each year for the American taxpayer.
Excessive reliance by executive agencies on sole-source contracts (or contracts with a limited number of sources) and cost-reimbursement contracts creates a risk that taxpayer funds will be spent on contracts that are wasteful, inefficient, subject to misuse, or otherwise not well designed to serve the needs of the Federal Government or the interests of the American taxpayer. Reports by agency Inspectors General, the Government Accountability Office (GAO), and other independent reviewing bodies have shown that noncompetitive and cost-reimbursement contracts have been misused, resulting in wasted taxpayer resources, poor contractor performance, and inadequate accountability for results.
When awarding Government contracts, the Federal Government must strive for an open and competitive process. However, executive agencies must have the flexibility to tailor contracts to carry out their missions and achieve the policy goals of the Government. In certain exigent circumstances, agencies may need to consider whether a competitive process will not accomplish the agency's mission. In such cases, the agency must ensure that the risks associated with noncompetitive contracts are minimized.
Moreover, it is essential that the Federal Government have the capacity to carry out robust and thorough management and oversight of its contracts in order to achieve programmatic goals, avoid significant overcharges, and curb wasteful spending. A GAO study last year of 95 major defense acquisitions projects found cost overruns of 26 percent, totaling $295 billion over the life of the projects. Improved contract oversight could reduce such sums significantly.
Government outsourcing for services also raises special concerns. For decades, the Federal Government has relied on the private sector for necessary commercial services used by the Government, such as transportation, food, and maintenance. Office of Management and Budget Circular A–76, first issued in 1966, was based on the reasonable premise that while inherently governmental activities should be performed by Government employees, taxpayers may receive more value for their dollars if non-inherently governmental activities that can be provided commercially are subject to the forces of competition.
However, the line between inherently governmental activities that should not be outsourced and commercial activities that may be subject to private sector competition has been blurred and inadequately defined. As a result, contractors may be performing inherently governmental functions. Agencies and departments must operate under clear rules prescribing when outsourcing is and is not appropriate.
It is the policy of the Federal Government that executive agencies shall not engage in noncompetitive contracts except in those circumstances where their use can be fully justified and where appropriate safeguards have been put in place to protect the taxpayer. In addition, there shall be a preference for fixed-price type contracts. Cost-reimbursement contracts shall be used only when circumstances do not allow the agency to define its requirements sufficiently to allow for a fixed-price type contract. Moreover, the Federal Government shall ensure that taxpayer dollars are not spent on contracts that are wasteful, inefficient, subject to misuse, or otherwise not well designed to serve the Federal Government's needs and to manage the risk associated with the goods and services being procured. The Federal Government must have sufficient capacity to manage and oversee the contracting process from start to finish, so as to ensure that taxpayer funds are spent wisely and are not subject to excessive risk. Finally, the Federal Government must ensure that those functions that are inherently governmental in nature are performed by executive agencies and are not outsourced.
I hereby direct the Director of the Office of Management and Budget (OMB), in collaboration with the Secretary of Defense, the Administrator of the National Aeronautics and Space Administration, the Administrator of General Services, the Director of the Office of Personnel Management, and the heads of such other agencies as the Director of OMB determines to be appropriate, and with the participation of appropriate management councils and program management officials, to develop and issue by July 1, 2009, Government-wide guidance to assist agencies in reviewing, and creating processes for ongoing review of, existing contracts in order to identify contracts that are wasteful, inefficient, or not otherwise likely to meet the agency's needs, and to formulate appropriate corrective action in a timely manner. Such corrective action may include modifying or canceling such contracts in a manner and to the extent consistent with applicable laws, regulations, and policy.
I further direct the Director of OMB, in collaboration with the aforementioned officials and councils, and with input from the public, to develop and issue by September 30, 2009, Government-wide guidance to:
(1) govern the appropriate use and oversight of sole-source and other types of noncompetitive contracts and to maximize the use of full and open competition and other competitive procurement processes;
(2) govern the appropriate use and oversight of all contract types, in full consideration of the agency's needs, and to minimize risk and maximize the value of Government contracts generally, consistent with the regulations to be promulgated pursuant to section 864 of Public Law 110–417;
(3) assist agencies in assessing the capacity and ability of the Federal acquisition workforce to develop, manage, and oversee acquisitions appropriately; and
(4) clarify when governmental outsourcing for services is and is not appropriate, consistent with section 321 of Public Law 110–417 (31 U.S.C. 501 note).
Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Director of OMB is hereby authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.
(a)
(b)
(1) the head of an executive agency may delegate functions and assign responsibilities relating to procurement to any officer or employee within the agency;
(2) the heads of 2 or more executive agencies, consistent with section 1535 of title 31 and regulations prescribed under section 1074 of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 31 U.S.C. 1535 note), may by agreement delegate procurement functions and assign procurement responsibilities from one executive agency to another of those executive agencies or to an officer or civilian employee of another of those executive agencies; and
(3) the heads of 2 or more executive agencies may establish joint or combined offices to exercise procurement functions and responsibilities.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3743.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3102 | 41:261. | June 30, 1949, ch. 288, title III, §311, as added Pub. L. 103–355, title I, §1552, Oct. 13, 1994, 108 Stat. 3299. |
(a)
(b)
(1)
(2)
(c)
(1) determine whether there is a continuing need for programs that are significantly behind schedule, over budget, or not in compliance with performance or capability requirements; and
(2) identify suitable actions to be taken, including termination, with respect to those programs.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3743.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3103 | 41:263. | June 30, 1949, ch. 288, title III, §313, as added Pub. L. 103–355, title V, §5051(a), Oct. 13, 1994, 108 Stat. 3351; Pub. L. 105–85, div. A, title VIII, §851(a), Nov. 18, 1997, 111 Stat. 1851. |
It is the policy of Congress that a fair proportion of the total purchases and contracts for property and services for the Federal Government shall be placed with small business concerns.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3744.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3104 | 41:252(b). | June 30, 1949, ch. 288, title III, §302(b), 63 Stat. 393; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 98–369, div. B, title VII, §2714(a)(1)(A), July 18, 1984, 98 Stat. 1184. |
The word "declared" is omitted as unnecessary.
(a)
(1) an executive agency should not be required by legislation to award—
(A) a new contract to a specific non-Federal Government entity; or
(B) a new grant for research, development, test, or evaluation to a non-Federal Government entity; and
(2) a program, project, or technology identified in legislation be procured or awarded through merit-based selection procedures.
(b)
(1) a contract is a new contract unless the work provided for in the contract is a continuation of the work performed by the specified entity under a prior contract; and
(2) a grant is a new grant unless the work provided for in the grant is a continuation of the work performed by the specified entity under a prior grant.
(c)
(1) refers to this section;
(2) identifies the particular non-Federal Government entity involved; and
(3) states that the award to that entity is required by the provision of law in contravention of the policy set forth in subsection (a).
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3744.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3105(a) | 41:253(i)(1). | June 30, 1949, ch. 288, title III, §303(i), as added Pub. L. 103–355, title VII, §7203(b)(1)(B), Oct. 13, 1994, 108 Stat. 3380; Pub. L. 104–106, title XLI, §4101(b)(1), Feb. 10, 1996, 110 Stat. 642. |
| 41:266(a). | June 30, 1949, ch. 288, title III, §316, as added Pub. L. 103–355, title VII, §7203(b)(2), Oct. 13, 1994, 108 Stat. 3381; Pub. L. 104–106, title XLIII, §4321(e)(9), Feb. 10, 1996, 110 Stat. 675. | |
| 3105(b) | 41:253(i)(3). | |
| 41:266(c). | ||
| 3105(c) | 41:253(i)(2). | |
| 41:266(b). | ||
| 3105(d) | 41:253(i)(4). | |
| 41:266(d). |
This division does not—
(1) authorize the erection, repair, or furnishing of a public building or public improvement; or
(2) permit a contract for the construction or repair of a building, road, sidewalk, sewer, main, or similar item using procedures other than sealed-bid procedures under section 3301(b)(1)(A) of this title if the conditions set forth in section 3301(b)(1)(A) of this title apply or the contract is to be performed outside the United States.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3745.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3106 | 41:252(c)(1). | June 30, 1949, ch. 288, title III, §302(c)(1), 63 Stat. 393; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §§2, 3, Aug. 28, 1958, 72 Stat. 966; Pub. L. 89–343, §2, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 89–348, §1(2), Nov. 8, 1965, 79 Stat. 1310; Pub. L. 90–268, §4, Mar. 16, 1968, 82 Stat. 50; Pub. L. 93–356, §3, July 25, 1974, 88 Stat. 390; Pub. L. 98–191, §9(a)(1), Dec. 1, 1983, 97 Stat. 1331; Pub. L. 98–369, div. B, title VII, §2714(a)(1)(B), July 18, 1984, 98 Stat. 1184. |
In paragraph (1), the words "but such authorization shall be required in the same manner as heretofore" are omitted as unnecessary.
2018—Pub. L. 115–232, div. A, title VIII, §836(b)(10)(B)(ii), Aug. 13, 2018, 132 Stat. 1863, substituted "Preference for commercial products and commercial services" for "Preference for commercial items" in item 3307.
2013—Pub. L. 112–239, div. A, title VIII, §851(a)(2), Jan. 2, 2013, 126 Stat. 1855, added item 3312.
(a)
(1) obtain full and open competition through the use of competitive procedures in accordance with the requirements of this division and the Federal Acquisition Regulation; and
(2) use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement.
(b)
(1)
(A) solicit sealed bids if—
(i) time permits the solicitation, submission, and evaluation of sealed bids;
(ii) the award will be made on the basis of price and other price-related factors;
(iii) it is not necessary to conduct discussions with the responding sources about their bids; and
(iv) there is a reasonable expectation of receiving more than one sealed bid; or
(B) request competitive proposals if sealed bids are not appropriate under subparagraph (A).
(2)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3745.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3301(a) | 41:253(a)(1). | June 30, 1949, ch. 288, title III, §303(a), 63 Stat. 395; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 90–268, §2, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, title VII, §2711(a)(1), July 18, 1984, 98 Stat. 1175; Pub. L. 103–355, title I, §1051(1), Oct. 13, 1994, 108 Stat. 3260. |
| 3301(b)(1) | 41:253(a)(2). | |
| 3301(b)(2) | 41:252(c)(2). | June 30, 1949, ch. 288, title III, §302(c)(2), as added Pub. L. 98–369, title VII, §2714(a)(1)(B), July 18, 1984, 98 Stat. 1184. |
| 3301(c) | 41:253(h). | June 30, 1949, ch. 288, title III, §303(h), as added Pub. L. 104–106, title XLI, §4101(b)(2), Feb. 10, 1996, 110 Stat. 642. |
Section 204 of title 23, referred to in subsec. (b)(2), was repealed and a new section 204 enacted by Pub. L. 112–141, div. A, title I, §1119(a), July 6, 2012, 126 Stat. 473, 489.
Pub. L. 113–291, div. A, title VIII, §836, Dec. 19, 2014, 128 Stat. 3449, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 19, 2014], the Administrator for Federal Procurement Policy shall prescribe regulations providing that when the Federal Government makes a purchase of services and supplies offered under the Federal Strategic Sourcing Initiative (managed by the Office of Federal Procurement Policy) but such Initiative is not used, the contract file for the purchase shall include a brief analysis of the comparative value, including price and nonprice factors, between the services and supplies offered under such Initiative and services and supplies offered under the source or sources used for the purchase."
Pub. L. 98–369, div. B, title VII, §2711(c), July 18, 1984, 98 Stat. 1181, provided that: "The amendments made by this section [see Tables for classification] do not supersede or affect the provisions of section 8(a) of the Small Business Act (15 U.S.C. 637(a))."
Pub. L. 114–328, div. A, title VIII, §880, Dec. 23, 2016, 130 Stat. 2313, as amended by Pub. L. 115–232, div. A, title VIII, §836(f)(10), Aug. 13, 2018, 132 Stat. 1872; Pub. L. 117–263, div. G, title LXXII, §7227(a), Dec. 23, 2022, 136 Stat. 3675, provided that:
"(a)
"(1)
"(2)
"(A) The Secretary of Homeland Security.
"(B) The Administrator of General Services.
"(3)
"(A) The Department of Homeland Security.
"(B) The General Services Administration.
"(b)
"(c)
"(d)
"(e)
"(1)
"(2)
"(A) An assessment of the impact of the pilot program on competition.
"(B) A comparison of acquisition timelines for—
"(i) procurements made using the pilot program; and
"(ii) procurements made using other competitive procedures that do not use general solicitations.
"(C) A recommendation on whether the authority for the pilot program should be made permanent.
"(3)
"(f)
"(1) the term 'commercial product'—
"(A) has the meaning given the term 'commercial item' in section 2.101 of the Federal Acquisition Regulation; and
"(B) includes a commercial product or a commercial service, as defined in sections 103 and 103a, respectively, of title 41, United States Code; and
"(2) the term 'innovative' means—
"(A) any new technology, process, or method, including research and development; or
"(B) any new application of an existing technology, process, or method.
"(g)
Pub. L. 113–291, div. A, title VIII, §837, Dec. 19, 2014, 128 Stat. 3450, provided that:
"(a)
"(b)
1 See References in Text note below.
(a)
(1)
(2)
(3)
(A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 3012(3) of title 10;
(B) a multiple award task order contract that is entered into under the authority of chapter 245 of title 10 or chapter 41 of this title; and
(C) any other indefinite delivery, indefinite quantity contract that is entered into by the head of an executive agency with 2 or more sources pursuant to the same solicitation.
(4)
(b)
(c)
(1)
(A) waives the requirement on the basis of a determination that—
(i) one of the circumstances described in paragraphs (1) to (4) of section 4106(c) of this title or section 3406(c) of title 10 applies to the individual purchase; or
(ii) a law expressly authorizes or requires that the purchase be made from a specified source; and
(B) justifies the determination in writing.
(2)
(A) require fair notice of the intent to make that purchase (including a description of the work to be performed and the basis on which the selection will be made) to be provided to all contractors offering the property or services under the multiple award contract; and
(B) afford all contractors responding to the notice a fair opportunity to make an offer and have that offer fairly considered by the official making the purchase.
(3)
(A)
(B)
(i) offers were received from at least 3 qualified contractors; or
(ii) a contracting officer of the executive agency determines in writing that no additional qualified contractors were able to be identified despite reasonable efforts to do so.
(d)
(1)
(A) publish on FedBizOpps notice of all sole source task or delivery orders in excess of the simplified acquisition threshold that are placed against multiple award contracts not later than 14 days after the orders are placed, except in the event of extraordinary circumstances or classified orders; and
(B) disclose the determination required by subsection (c)(1) related to sole source task or delivery orders in excess of the simplified acquisition threshold placed against multiple award contracts through the same mechanism and to the same extent as the disclosure of documents containing a justification and approval required by section 3204(e)(1) of title 10 and section 3304(e)(1) of this title, except in the event of extraordinary circumstances or classified orders.
(2)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3746; Pub. L. 111–383, div. A, title X, §1075(e)(14), Jan. 7, 2011, 124 Stat. 4375; Pub. L. 116–92, div. A, title VIII, §893(b), Dec. 20, 2019, 133 Stat. 1540; Pub. L. 117–81, div. A, title XVII, §1702(h)(12), Dec. 27, 2021, 135 Stat. 2158.)
This section was derived from Pub. L. 110–417, [div. A], title VIII, §863(a)–(e), Oct. 14, 2008, 122 Stat. 4547, which was set out as a note under section 253h of former Title 41, Public Contracts, prior to being repealed and reenacted by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. Section 863(b)(3)(A) of Pub. L. 110–417 was restated as subsec. (c)(3)(A) of this section and subsequently amended by Pub. L. 111–383, div. A, title X, §1075(e)(14), Jan. 7, 2011, 124 Stat. 4375. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 863(b)(3)(A) of Pub. L. 110–417 was amended by striking "subsection (d)(2)(A)" and inserting "subsection (d)(3)(A)". Such reference did not appear in the text of subsec. (c)(3)(A) as enacted. See Historical and Revision Notes below.
Pub. L. 116–92, div. A, title VIII, §893(b)(2), Dec. 20, 2019, 133 Stat. 1540 provided that, effective Dec. 31, 2025, subsection (f) of this section is repealed. See 2019 Amendment note below.
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3302 | 41:253h note. | Pub. L. 110–417, [div. A], title VIII, §863(a)–(e), Oct. 14, 2008, 122 Stat. 4547. |
In subsection (b), the words "Not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall require" are substituted for "shall be amended to require" to reflect the permanence of the provision.
In subsection (c)(2)(A), the words "except as provided in paragraph (3)" are omitted as unnecessary.
In subsection (c)(3)(A), "subsection (a)(3)(A)" is substituted for "subsection (d)(2)(A)" for consistency in the revised title and to correct an error in the law.
In subsection (d)(1), the words "Not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall require" are substituted for "shall be amended to require" to reflect the permanence of the provision.
2021—Subsec. (a)(3). Pub. L. 117–81, §1702(h)(12)(A), substituted "section 3012(3)" for "section 2302(2)(C)" in subpar. (A) and "chapter 245 of title 10" for "sections 2304a to 2304d of title 10," in subpar. (B).
Subsec. (c)(1)(A)(i). Pub. L. 117–81, §1702(h)(12)(B), substituted "section 3406(c)" for "section 2304c(b)".
Subsec. (d)(1)(B). Pub. L. 117–81, §1702(h)(12)(C), substituted "section 3204(e)(1)" for "section 2304(f)(1)".
2019—Subsec. (f). Pub. L. 116–92, §893(b)(2), struck out subsec. (f). Text read as follows: "The regulations required by subsection (b) shall not apply to individual purchases for commercial leasing services that are made on a no cost basis and made under a multiple award contract awarded in accordance with the requirements for full and open competition."
Pub. L. 116–92, §893(b)(1), added subsec. (f).
Pub. L. 116–92, div. A, title VIII, §893(b)(2), Dec. 20, 2019, 133 Stat. 1540, provided that the amendment made by section 893(b)(2) is effective Dec. 31, 2025.
Pub. L. 115–232, div. A, title VIII, §877, Aug. 13, 2018, 132 Stat. 1907, which related to individual acquisition for commercial leasing services not construed as purchase of property or services under certain conditions, was repealed by Pub. L. 116–92, div. A, title VIII, §893(a), Dec. 20, 2019, 133 Stat. 1540.
(a)
(1)
(A) increase or maintain competition and likely result in reduced overall cost for the procurement, or for an anticipated procurement, of the property or services;
(B) be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in case of a national emergency or industrial mobilization;
(C) be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a Federally funded research and development center;
(D) ensure the continuous availability of a reliable source of supply of the property or service;
(E) satisfy projected needs for the property or service determined on the basis of a history of high demand for the property or service; or
(F) satisfy a critical need for medical, safety, or emergency supplies.
(2)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3747.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3303 | 41:253(b). | June 30, 1949, ch. 288, title III, §303(b), 63 Stat. 395; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 90–268, §2, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, title VII, §2711(a)(1), July 18, 1984, 98 Stat. 1175; Pub. L. 98–577, title V, §504(a)(1), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 103–355, title I, §1052, Oct. 13, 1994, 108 Stat. 3260. |
(a)
(1) the property or services needed by the executive agency are available from only one responsible source and no other type of property or services will satisfy the needs of the executive agency;
(2) the executive agency's need for the property or services is of such an unusual and compelling urgency that the Federal Government would be seriously injured unless the executive agency is permitted to limit the number of sources from which it solicits bids or proposals;
(3) it is necessary to award the contract to a particular source—
(A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization;
(B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a Federally funded research and development center;
(C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before a court, administrative tribunal, or agency, whether or not the expert is expected to testify; or
(D) to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify;
(4) the terms of an international agreement or treaty between the Federal Government and a foreign government or an international organization, or the written directions of a foreign government reimbursing the executive agency for the cost of the procurement of the property or services for that government, have the effect of requiring the use of procedures other than competitive procedures;
(5) subject to section 3105 of this title, a statute expressly authorizes or requires that the procurement be made through another executive agency or from a specified source, or the agency's need is for a brand-name commercial product for authorized resale;
(6) the disclosure of the executive agency's needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or
(7) the head of the executive agency (who may not delegate the authority under this paragraph)—
(A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned; and
(B) notifies Congress in writing of that determination not less than 30 days before the award of the contract.
(b)
(1) a contract for property or services to be awarded on the basis of acceptance of an unsolicited research proposal, the property or services are deemed to be available from only one source if the source has submitted an unsolicited research proposal that demonstrates a unique and innovative concept, the substance of which is not otherwise available to the Federal Government and does not resemble the substance of a pending competitive procurement; or
(2) a follow-on contract for the continued development or production of a major system or highly specialized equipment, the property may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in—
(A) substantial duplication of cost to the Federal Government that is not expected to be recovered through competition; or
(B) unacceptable delay in fulfilling the executive agency's needs.
(c)
(1)
(A) may not exceed the time necessary—
(i) to meet the unusual and compelling requirements of the work to be performed under the contract; and
(ii) for the executive agency to enter into another contract for the required goods or services through the use of competitive procedures; and
(B) may not exceed one year unless the head of the executive agency entering into the contract determines that exceptional circumstances apply.
(2)
(d)
(e)
(1)
(A) the contracting officer for the contract justifies the use of those procedures in writing and certifies the accuracy and completeness of the justification;
(B) the justification is approved, in the case of a contract for an amount—
(i) exceeding $500,000 but equal to or less than $10,000,000, by the advocate for competition for the procuring activity (without further delegation) or by an official referred to in clause (ii) or (iii);
(ii) exceeding $10,000,000 but equal to or less than $50,000,000, by the head of the procuring activity or by a delegate who, if a member of the armed forces, is a general or flag officer or, if a civilian, is serving in a position in which the individual is entitled to receive the daily equivalent of the maximum annual rate of basic pay payable for level IV of the Executive Schedule (or in a comparable or higher position under another schedule); or
(iii) exceeding $50,000,000, by the senior procurement executive of the agency designated pursuant to section 1702(c) of this title (without further delegation); and
(C) any required notice has been published with respect to the contract pursuant to section 1708 of this title and the executive agency has considered all bids or proposals received in response to that notice.
(2)
(A) a description of the agency's needs;
(B) an identification of the statutory exception from the requirement to use competitive procedures and a demonstration, based on the proposed contractor's qualifications or the nature of the procurement, of the reasons for using that exception;
(C) a determination that the anticipated cost will be fair and reasonable;
(D) a description of the market survey conducted or a statement of the reasons a market survey was not conducted;
(E) a listing of any sources that expressed in writing an interest in the procurement; and
(F) a statement of any actions the agency may take to remove or overcome a barrier to competition before a subsequent procurement for those needs.
(3)
(4)
(A) a statute expressly requires that the procurement be made from a specified source;
(B) the agency's need is for a brand-name commercial product for authorized resale;
(C) the procurement is permitted by subsection (a)(7); or
(D) the procurement is conducted under chapter 85 of this title or section 8(a) of the Small Business Act (15 U.S.C. 637(a)).
(5)
(A)
(i) enter into a contract for property or services using procedures other than competitive procedures on the basis of the lack of advance planning or concerns related to the amount available to the agency for procurement functions; or
(ii) procure property or services from another executive agency unless the other executive agency complies fully with the requirements of this division in its procurement of the property or services.
(B)
(f)
(1)
(A)
(B)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3748; Pub. L. 115–232, div. A, title VIII, §836(b)(7), Aug. 13, 2018, 132 Stat. 1861.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3304(a) | 41:253(c), (d)(2). | June 30, 1949, ch. 288, title III, §303(c)–(f), (j), 63 Stat. 395; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 90–268, §2, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, title VII, §2711(a)(1), July 18, 1984, 98 Stat. 1176; Pub. L. 98–577, title V, §504(a)(2), Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99–145, title IX, §961(a)(2), title XIII, §1304(c)(2), Nov. 8, 1985, 99 Stat. 703, 742; Pub. L. 103–355, title I, §§1053, 1055(a), title VII, §7203(b)(1)(A), Oct. 13, 1994, 108 Stat. 3261, 3265, 3380; Pub. L. 104–106, title XLI, §4102(b), title XLIII, §4321(e)(2), Feb. 10, 1996, 110 Stat. 643, 674; Pub. L. 104–320, §§7(a)(2), 11(c)(2), Oct. 19, 1996, 110 Stat. 3871, 3873; Pub. L. 110–181, div. A, title VIII, §844(a), Jan. 28, 2008, 122 Stat. 239; Pub. L. 110–417, [div. A], title VIII, §862(a), Oct. 14, 2008, 122 Stat. 4546. |
| 3304(b) | 41:253(d)(1). | |
| 3304(c) | 41:253(d)(3). | |
| 3304(d) | 41:253(e). | |
| 3304(e)(1) | 41:253(f)(1). | |
| 3304(e)(2) | 41:253(f)(3). | |
| 3304(e)(3), (4) | 41:253(f)(2). | |
| 3304(e)(5) | 41:253(f)(4). | |
| 3304(f) | 41:253(j). |
In subsection (a)(7), the words "(who may not delegate the authority under this paragraph)" are substituted for 41:253(d)(2) to move the restriction closer to where it applies.
In subsection (e)(1)(B)(i), the words "advocate for competition" are substituted for "competition advocate" for consistency with section 1705 of the revised title.
In subsection (e)(1)(B)(ii), the reference to section 5376 of title 5 is substituted for the reference to grade GS–16 or above under the General Schedule because of section 529 [title I, §101(c)(1)] of the Treasury, Postal Service and General Government Appropriations Act, 1991 (Public Law 101–509, 104 Stat. 1442, 5 U.S.C. 5376 note).
In subsection (e)(5)(B), the words "and not in lieu of" are omitted as unnecessary.
In subsection (f)(2), the words "referred to in subparagraph (A) of paragraph (1)" are added for clarity.
In subsec. (e)(1)(B)(ii), "for level IV of the Executive Schedule" substituted for "under section 5376 of title 5" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010).
2018—Subsecs. (a)(5), (e)(4)(B). Pub. L. 115–232 substituted "commercial product" for "commercial item".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
Pub. L. 116–136, div. B, title V, §15003, Mar. 27, 2020, 134 Stat. 532, provided that: "Notwithstanding 41 U.S.C. 3304(a)(7)(B), the Administrator, when making a determination that use of noncompetitive procedures is necessary for public interest in accordance with 41 U.S.C. 3304(a)(7)(A) in response to a public health emergency declaration by the Secretary of Health and Human Services under section 319 of the Public Health Service Act (42 U.S.C. 247(d) [247d]), is required to notify Congress in writing of that determination not less than 3 days prior to the award of the contract."
Pub. L. 111–84, div. A, title VIII, §811, Oct. 28, 2009, 123 Stat. 2405, as amended by Pub. L. 117–81, div. A, title XVII, §1702(i)(3), Dec. 27, 2021, 135 Stat. 2159, provided that:
"(a)
"(1) the contracting officer for the contract justifies the use of a sole-source contract in writing;
"(2) the justification is approved by the appropriate official designated to approve contract awards for dollar amounts that are comparable to the amount of the sole-source contract; and
"(3) the justification and related information are made public as provided in sections 3204(e)(1)(C) and 3204(f) of title 10, United States Code, or sections 303(f)(1)(C) and 303(j) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(1)(C) and 253(j)) [now 41 U.S.C. 3304(e)(1)(C) and 3304(f)], as applicable.
"(b)
"(1) A description of the needs of the agency concerned for the matters covered by the contract.
"(2) A specification of the statutory provision providing the exception from the requirement to use competitive procedures in entering into the contract.
"(3) A determination that the use of a sole-source contract is in the best interest of the agency concerned.
"(4) A determination that the anticipated cost of the contract will be fair and reasonable.
"(5) Such other matters as the head of the agency concerned shall specify for purposes of this section.
"(c)
"(1)
"(A) A procurement described in section 3204(e)(4)(D)(ii) of title 10, United States Code.
"(B) A procurement described in section 303(f)(2)(D)(ii) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C. 253(f)(2)(D)(ii)) [see 41 U.S.C. 3304(e)(4)(D)].
"(2)
"(A) in the case of a covered procurement as defined in paragraph (1)(A), has the meaning provided in section 3004 of title 10, United States Code; and
"(B) in the case of a covered procurement as defined in paragraph (1)(B), has the meaning provided the term 'agency head' in section 309(a) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259(a)) [now 41 U.S.C. 151].
"(3)
"(A) in the case of a covered procurement as defined in paragraph (1)(A), an official designated in section 3204(e)(1)(B) of title 10, United States Code; and
"(B) in the case of a covered procurement as defined in paragraph (1)(B), an official designated in section 303(f)(1)(B) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(f)(1)(B)) [now 41 U.S.C. 3304(e)(1)(B)]."
(a)
(1) not greater than the simplified acquisition threshold; and
(2) greater than the simplified acquisition threshold but not greater than $5,000,000 for which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial products or commercial services.
(b)
(c)
(d)
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3752; Pub. L. 115–232, div. A, title VIII, §836(b)(8), Aug. 13, 2018, 132 Stat. 1861.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3305 | 41:253(g). | June 30, 1949, ch. 288, title III, §303(g), 63 Stat. 395; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 90–268, §2, Mar. 16, 1968, 82 Stat. 49; Pub. L. 98–369, title VII, §2711(a)(1), July 18, 1984, 98 Stat. 1178; Pub. L. 99–145, title XIII, §1304(c)(3), Nov. 8, 1985, 99 Stat. 742; Pub. L. 101–510, title VIII, §806(c), Nov. 5, 1990, 104 Stat. 1592; Pub. L. 103–355, title I, §1051(2), title IV, §4402(a), Oct. 13, 1994, 108 Stat. 3260, 3348; Pub. L. 104–106, title XLII, §4202(b)(1), Feb. 10, 1996, 110 Stat. 653; Pub. L. 105–85, title VIII, §850(f)(4)(B), Nov. 18, 1997, 111 Stat. 1850. |
2018—Subsec. (a)(2). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(1)
(A) specify its needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement;
(B) use advance procurement planning and market research; and
(C) develop specifications in the manner necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired.
(2)
(A) consistent with this division, permit full and open competition; and
(B) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the executive agency or as authorized by law.
(3)
(A) function, so that a variety of products or services may qualify;
(B) performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or
(C) design requirements.
(b)
(1) a statement of—
(A) all significant factors and significant subfactors that the executive agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and
(B) the relative importance assigned to each of those factors and subfactors; and
(2)(A) in the case of sealed bids—
(i) a statement that sealed bids will be evaluated without discussions with the bidders; and
(ii) the time and place for the opening of the sealed bids; or
(B) in the case of competitive proposals—
(i) either a statement that the proposals are intended to be evaluated with, and the award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and the award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and
(ii) the time and place for submission of proposals.
(c)
(1)
(A) establish clearly the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror);
(B) except as provided in paragraph (3), include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and
(C) except as provided in paragraph (3), disclose to offerors whether all evaluation factors other than cost or price, when combined, are—
(i) significantly more important than cost or price;
(ii) approximately equal in importance to cost or price; or
(iii) significantly less important than cost or price.
(2)
(3)
(A) the contracting officer need not consider price as an evaluation factor for contract award; and
(B) if, pursuant to subparagraph (A), price is not considered as an evaluation factor for contract award, cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to sections 4106(c) and 152(3) of this title of any task or delivery order under any contract resulting from the solicitation.
(4)
(A) is determined to be a responsible source;
(B) submits a proposal that conforms to the requirements of the solicitation;
(C) meets all technical requirements; and
(D) is otherwise eligible for award.
(d)
(1) providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or
(2) stating in a solicitation that award will be made to the offeror that meets the solicitation's mandatory requirements at the lowest cost or price.
(e)
(f)
(1)
(2)
(3)
(A) render an offeror ineligible to enter into a contract on the basis of the inclusion of a plan of the offeror to allow the offeror's employees to telecommute, unless the contracting officer concerned first determines that the requirements of the agency, including security requirements, cannot be met if telecommuting is allowed and documents in writing the basis for the determination; or
(B) reduce the scoring of an offer on the basis of the inclusion in the offer of a plan of the offeror to allow the offeror's employees to telecommute, unless the contracting officer concerned first determines that the requirements of the agency, including security requirements, would be adversely impacted if telecommuting is allowed and documents in writing the basis for the determination.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3752; Pub. L. 115–232, div. A, title VIII, §§836(b)(9), 876, Aug. 13, 2018, 132 Stat. 1861, 1907.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3306(a)–(e) | 41:253a. | June 30, 1949, ch. 288, title III, §303A, as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1178; Pub. L. 103–355, title I, §§1061(a), (b), 1062, title IV, §4402(b), Oct. 13, 1994, 108 Stat. 3266, 3267, 3348; Pub. L. 104–106, title XLII, §4202(b)(2), Feb. 10, 1996, 110 Stat. 653. |
| 3306(f) | 41:253a note. | Pub. L. 108–136, title XIV, §1428, Nov. 24, 2003, 117 Stat. 1670. |
In subsection (f)(2), the words "Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall amend" are omitted as obsolete.
2018—Subsec. (b). Pub. L. 115–232, §836(b)(9), substituted "commercial products or commercial services" for "commercial items" in introductory provisions.
Subsec. (c)(1)(B), (C). Pub. L. 115–232, §876(1), inserted "except as provided in paragraph (3)," after subpar. designation.
Subsec. (c)(3), (4). Pub. L. 115–232, §876(2), added pars. (3) and (4).
Amendment by section 836(b)(9) of Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(1)
(2)
(b)
(1) requirements of the executive agency with respect to a procurement of supplies or services are stated in terms of—
(A) functions to be performed;
(B) performance required; or
(C) essential physical characteristics;
(2) those requirements are defined so that commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products may be procured to fulfill those requirements; and
(3) offerors of commercial services, commercial products, and nondevelopmental items other than commercial products are provided an opportunity to compete in any procurement to fill those requirements.
(c)
(1) acquire commercial services or commercial products or nondevelopmental items other than commercial products to meet the needs of the executive agency;
(2) require that prime contractors and subcontractors at all levels under contracts of the executive agency incorporate commercial services or commercial products or nondevelopmental items other than commercial products as components of items supplied to the executive agency;
(3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products;
(4) state specifications in terms that enable and encourage bidders and offerors to supply commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products in response to the executive agency solicitations;
(5) revise the executive agency's procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial products and commercial services; and
(6) require training of appropriate personnel in the acquisition of commercial products and commercial services.
(d)
(1)
(A) before developing new specifications for a procurement by that executive agency; and
(B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold.
(2)
(A) meet the executive agency's requirements;
(B) could be modified to meet the executive agency's requirements; or
(C) could meet the executive agency's requirements if those requirements were modified to a reasonable extent.
(3)
(4)
(e)
(1)
(2)
(A)
(B)
(i) required to implement provisions of law or executive orders applicable to acquisitions of commercial products, commercial components, or commercial services; or
(ii) determined to be consistent with standard commercial practice.
(C)
(i) required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial products, commercial components, or commercial services; or
(ii) determined to be consistent with standard commercial practice.
(D)
(E)
(3)
(A)
(i) have achieved commercial market acceptance or been satisfactorily supplied to an executive agency under current or recent contracts for the same or similar requirements; and
(ii) otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation relating to the contract.
(B)
(i) the minimum needs of the executive agency concerned; and
(ii) the entire relevant commercial market, including small businesses.
(4)
(A)
(i) a requirement that firm, fixed price contracts or fixed price with economic price adjustment contracts be used to the maximum extent practicable;
(ii) a prohibition on use of cost type contracts; and
(iii) subject to subparagraph (B), authority for use of a time-and-materials or labor-hour contract for the procurement of commercial services that are commonly sold to the general public through those contracts and are purchased by the procuring agency on a competitive basis.
(B)
(i) only for a procurement of commercial services in a category of commercial services described in subparagraph (C); and
(ii) only if the contracting officer for the procurement—
(I) executes a determination and findings that no other contract type is suitable;
(II) includes in the contract a ceiling price that the contractor exceeds at its own risk; and
(III) authorizes a subsequent change in the ceiling price only on a determination, documented in the contract file, that it is in the best interest of the procuring agency to change the ceiling price.
(C)
(i) Commercial services procured for support of a commercial product, as described in section 103a(1) of this title.
(ii) Any other category of commercial services that the Administrator for Federal Procurement Policy designates in the Federal Acquisition Regulation for the purposes of this subparagraph on the basis that—
(I) the commercial services in the category are of a type of commercial services that are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and
(II) it would be in the best interests of the Federal Government to authorize use of time-and-materials or labor-hour contracts for purchases of the commercial services in the category.
(5)
(A) allow, to the maximum extent practicable, a contractor under a commercial products acquisition to use the existing quality assurance system of the contractor as a substitute for compliance with an otherwise applicable requirement for the Federal Government to inspect or test the commercial products before the contractor's tender of those products for acceptance by the Federal Government;
(B) require that, to the maximum extent practicable, the executive agency take advantage of warranties (including extended warranties) offered by offerors of commercial products and use those warranties for the repair and replacement of commercial products; and
(C) set forth guidance regarding the use of past performance of commercial products and sources as a factor in contract award decisions.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3754; Pub. L. 115–232, div. A, title VIII, §836(b)(10)(A), (B)(i), Aug. 13, 2018, 132 Stat. 1861–1863; Pub. L. 116–92, div. A, title VIII, §818(b), Dec. 20, 2019, 133 Stat. 1488; Pub. L. 117–81, div. A, title XVII, §1702(h)(13), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3307(a) | 41:264. | June 30, 1949, ch. 288, title III, §§314, 314B, as added Pub. L. 103–355, title VIII, §§8201, 8203, Oct. 13, 1994, 108 Stat. 3394. |
| 3307(b) | 41:264b(a). | |
| 3307(c) | 41:264b(b). | |
| 3307(d) | 41:264b(c). | |
| 3307(e) | 41:264 note. | Pub. L. 103–355, title VIII, §8002, Oct. 13, 1994, 108 Stat. 3386; Pub. L. 108–136, title XIV, 1432, Nov. 24, 2003, 117 Stat. 1672. |
Subsection (a)(1) is substituted for 41 U.S.C. 264(a) for clarity.
In subsection (e), the text of section 8002(f) of the Federal Acquisition Streamlining Act of 1994 (Public Law 103–355, 41 U.S.C. 264 note) is omitted as obsolete.
In subsection (e)(2)(B)(i) and (C)(i), the words "as the case may be" are omitted as unnecessary.
2021—Subsec. (e)(1). Pub. L. 117–81 substituted "chapter 247" for "chapter 140".
2019—Subsec. (d)(4). Pub. L. 116–92 added par. (4).
2018—Pub. L. 115–232, §836(b)(10)(B)(i), substituted "Preference for commercial products and commercial services" for "Preference for commercial items" in section catchline.
Subsec. (a). Pub. L. 115–232, §836(b)(10)(A)(i)(I), substituted "Commercial Products and Commercial Services" for "Commercial Items" in heading.
Subsec. (a)(1). Pub. L. 115–232, §836(b)(10)(A)(i)(II), substituted "commercial products and commercial services" for "commercial items".
Subsec. (a)(2). Pub. L. 115–232, §836(b)(10)(A)(i)(III), substituted "a commercial product or commercial service" for "a commercial item".
Subsec. (b)(2). Pub. L. 115–232, §836(b)(10)(A)(ii)(I), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (b)(3). Pub. L. 115–232, §836(b)(10)(A)(ii)(II), substituted "commercial services, commercial products, and nondevelopmental items other than commercial products" for "commercial items and nondevelopmental items other than commercial items".
Subsec. (c)(1), (2). Pub. L. 115–232, §836(b)(10)(A)(iii)(I), substituted "commercial services or commercial products or nondevelopmental items other than commercial products" for "commercial items or nondevelopmental items other than commercial items".
Subsec. (c)(3), (4). Pub. L. 115–232, §836(b)(10)(A)(iii)(II), substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (c)(5), (6). Pub. L. 115–232, §836(b)(10)(A)(iii)(III), substituted "commercial products and commercial services" for "commercial items".
Subsec. (d)(2). Pub. L. 115–232, §836(b)(10)(A)(iv), in introductory provisions, substituted "commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial products" for "commercial items or, to the extent that commercial items suitable to meet the executive agency's needs are not available, nondevelopmental items other than commercial items".
Subsec. (e)(1). Pub. L. 115–232, §836(b)(10)(A)(v)(I), inserted "103a, 104," after "sections 102, 103,".
Subsec. (e)(2)(A). Pub. L. 115–232, §836(b)(10)(A)(v)(II), substituted "commercial products or commercial services" for "commercial items".
Subsec. (e)(2)(B). Pub. L. 115–232, §836(b)(10)(A)(v)(III), (IV), in introductory provisions, substituted "end items that are commercial products" for "commercial end items" and, in cl. (i), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(2)(C). Pub. L. 115–232, §836(b)(10)(A)(v)(IV), (V), in introductory provisions, substituted "commercial products or commercial services" for "commercial items" and, in cl. (i), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(2)(D). Pub. L. 115–232, §836(b)(10)(A)(v)(IV), substituted "commercial products, commercial components, or commercial services" for "commercial items or commercial components".
Subsec. (e)(4)(A). Pub. L. 115–232, §836(b)(10)(A)(v)(VI), substituted "commercial products or commercial services" for "commercial items" in introductory provisions.
Subsec. (e)(4)(C)(i). Pub. L. 115–232, §836(b)(10)(A)(v)(VII), substituted "commercial product, as described in section 103a(1)" for "commercial item, as described in section 103(5)".
Subsec. (e)(5). Pub. L. 115–232, §836(b)(10)(A)(v)(VIII), substituted "products" for "items" wherever appearing.
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(1)
(2)
(A) Proposals to incorporate in the design of the major system items that are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source.
(B) With respect to items that are likely to be required in substantial quantities during the system's service life, proposals to incorporate in the design of the major system items that the Federal Government will be able to acquire competitively in the future.
(b)
(1)
(2)
(A) Proposals to provide to the Federal Government the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the Federal Government of acquiring the data and the right to use the data.
(B) Proposals for the qualification or development of multiple sources of supply for the item.
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3758.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3308 | 41:253b(j). | June 30, 1949, ch. 288, title III, §303B(j), formerly §303B(f), as added Pub. L. 98–577, title II, §201(a), Oct. 30, 1984, 98 Stat. 3068; redesignated as §303B(g), Pub. L. 103–355, title I, §1064(1), Oct. 13, 1994, 108 Stat. 3268; redesignated as §303B(j), Pub. L. 104–106, title XLI, §4104(b)(2), Feb. 10, 1996, 110 Stat. 645. |
(a)
(b)
(1) the contracting officer anticipates that 3 or more offers will be received for the contract;
(2) design work must be performed before an offeror can develop a price or cost proposal for the contract;
(3) the offeror will incur a substantial amount of expense in preparing the offer; and
(4) the contracting officer has considered information such as the following:
(A) The extent to which the project requirements have been adequately defined.
(B) The time constraints for delivery of the project.
(C) The capability and experience of potential contractors.
(D) The suitability of the project for use of the two-phase selection procedures.
(E) The capability of the agency to manage the two-phase selection process.
(F) Other criteria established by the agency.
(c)
(1)
(2)
(A) include information on the offeror's—
(i) technical approach; and
(ii) technical qualifications; and
(B) do not include—
(i) detailed design information; or
(ii) cost or price information.
(3)
(4)
(A)
(i) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work, or both; and
(ii) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with subsections (b) to (d) of section 3306 of this title.
(B)
(5)
(d)
(e)
(1) regarding the factors that may be considered in determining whether the two-phase contracting procedures authorized by subsection (a) are appropriate for use in individual contracting situations;
(2) regarding the factors that may be used in selecting contractors; and
(3) providing for a uniform approach to be used Government-wide.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3759.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3309 | 41:253m. | June 30, 1949, ch. 288, title III, §303M, as added Pub. L. 104–106, div. D, title XLI, §4105(b)(1), Feb. 10, 1996, 110 Stat. 647. |
In subsections (a) and (c)(1), the words "sections 1101 to 1104 of title 40" are substituted for "the Brooks Architect-Engineers Act (title IX of this Act)" and "the Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.)", respectively, because of section 5(c) of Public Law 107–217 (40 U.S.C. note prec. 101) and for consistency with title 40.
In subsection (c)(5), the reference to section 253b of this title is limited to chapter 37 of the revised title for clarity.
Pub. L. 116–260, div. U, title IV, §402, Dec. 27, 2020, 134 Stat. 2292, as amended by Pub. L. 117–28, §2, July 26, 2021, 135 Stat. 304, provided that:
"(a)
"(1) In contrast to a traditional auction in which the buyers bid up the price, sellers bid down the price in a reverse auction.
"(2) Reverse auctions, while providing value for the vast majority of Federal acquisitions, including certain construction-related acquisitions, are limited in value for complex, specialized, or substantial design and construction services.
"(b)
"(c)
"(1)
"(2)
"(d)
"(1) site planning and landscape design;
"(2) architectural and engineering services (as defined in section 1102 of title 40, United States Code);
"(3) interior design;
"(4) performance of substantial construction work for facility, infrastructure, and environmental restoration projects; and
"(5) construction or substantial alteration of public buildings or public works.
"(e)
"(f)
(a)
(1) will result in the total cost and unit cost most advantageous to the Federal Government, where practicable; and
(2) does not exceed the quantity reasonably expected to be required by the agency.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3761.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3310 | 41:253f. | June 30, 1949, ch. 288, title III, §303F, formerly §303G, as added Pub. L. 98–577, title II, §205(a), Oct. 30, 1984, 98 Stat. 3073; renumbered §303F, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
In subsection (b), the words "or quantities" are omitted because of 1:1.
(a)
(b)
(1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award;
(2) specify in writing and make available to a potential offeror on request all requirements that a prospective offeror, or its product, must satisfy to become qualified, with those requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification requirement;
(3) specify an estimate of the cost of testing and evaluation likely to be incurred by a potential offeror to become qualified;
(4) ensure that a potential offeror is provided, on request, a prompt opportunity to demonstrate at its own expense (except as provided in subsection (d)) its ability to meet the standards specified for qualification using—
(A) qualified personnel and facilities—
(i) of the agency concerned;
(ii) of another agency obtained through interagency agreement; or
(iii) under contract; or
(B) other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency);
(5) if testing and evaluation services are provided under contract to the agency for the purposes of paragraph (4), provide to the extent possible that those services be provided by a contractor that—
(A) is not expected to benefit from an absence of additional qualified sources; and
(B) is required in the contract to adhere to any restriction on technical data asserted by the potential offeror seeking qualification; and
(6) ensure that a potential offeror seeking qualification is promptly informed whether qualification is attained and, if not attained, is promptly furnished specific information about why qualification was not attained.
(c)
(1)
(2)
(A)
(B)
(C)
(3)
(4)
(5)
(d)
(1)
(A) publish notice periodically soliciting additional sources or products to seek qualification, unless the contracting officer determines that doing so would compromise national security; and
(B) subject to paragraph (2), bear the cost of conducting the specified testing and evaluation (excluding the cost associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern that has met the standards specified for qualification and that could reasonably be expected to compete for a contract for that requirement.
(2)
(3)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3761.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3311 | 41:253c. | June 30, 1949, ch. 288, title III, §303C, formerly §303D, as added Pub. L. 98–577, title II, §202(a), Oct. 30, 1984, 98 Stat. 3069; renumbered §303C, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
In subsection (d)(1)(A), the words "in the Commerce Business Daily" are omitted as obsolete. See revision note for section 1708(d) of the revised title.
(a)
(1) Monitoring developments in price trends for items and services under contracts with the Federal Government.
(2) Conducting price or cost analyses for items and services under offers for contracts with the Federal Government, or otherwise conducting determinations of the reasonableness of prices for items and services under such offers, and addressing unjustified escalation in prices being paid by the Federal Government for items and services under contracts with the Federal Government.
(b)
(2) The Secretary of Defense may satisfy the requirements of this section by complying with the requirements of section 892 1 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 2306a note).
(Added Pub. L. 112–239, div. A, title VIII, §851(a)(1), Jan. 2, 2013, 126 Stat. 1855.)
Section 892 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, referred to in subsec. (b)(2), is section 892 of Pub. L. 111–383, which was formerly set out as a note under section 2306a of Title 10, Armed Forces, prior to repeal by Pub. L. 114–92, div. A, title X, §1073(f), Nov. 25, 2015, 129 Stat. 996.
Pub. L. 112–239, div. A, title VIII, §851(b), Jan. 2, 2013, 126 Stat. 1855, provided that: "In establishing the database required by section 3312 of title 41, United States Code (as added by subsection (a)), the Administrator for Federal Procurement Policy shall use and incorporate appropriate elements of the pilot project on pricing being carried out by the Under Secretary of Defense for Acquisition, Technology, and Logistics pursuant to section 892 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 [Pub. L. 111–383] (10 U.S.C. 2306a note) and the Better Buying Power initiative of the Secretary of Defense."
1 See References in Text note below.
In chapter 35 heading, "OR" substituted for "AND" by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18683 (2010).
(a)
(1)
(2)
(b)
(1)
(2)
(A) prices paid for the same or similar commercial services under comparable terms and conditions by both government and commercial customers; and
(B) if the contracting officer determines that the information described in subparagraph (A) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3764; Pub. L. 115–232, div. A, title VIII, §836(b)(11), Aug. 13, 2018, 132 Stat. 1863.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3501(a) | 41:254b(h). | June 30, 1949, ch. 288, title III, §304A(h), formerly §304A(i), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3284; redesignated as §304A(h), Pub. L. 104–106, title XLII, §4201(b)(2)(B), Feb. 10, 1996, 110 Stat. 652. |
| 3501(b) | 41:254b note. | Pub. L. 110–417, [div. A], title VIII, §868, Oct. 14, 2008, 122 Stat. 4552. |
Subsection (a) of Pub. L. 110–417, §868 is omitted as unnecessary.
In subsection (b)(1), the words "The Federal Acquisition Regulation" are substituted for "The regulations modified pursuant to subsection (a)" for clarity and conformity with the revised title.
2018—Subsec. (a). Pub. L. 115–232, §836(b)(11)(A), redesignated pars. (2) and (3) as (1) and (2), respectively, substituted "commercial products or commercial services" for "commercial items" in par. (2), as redesignated, and struck out former par. (1), which defined "commercial item".
Subsec. (b)(1). Pub. L. 115–232, §836(b)(11)(B), in heading, struck out "item" before "authority" and, in text, substituted "commercial services" for "commercial items".
Subsec. (b)(2)(A). Pub. L. 115–232, §836(b)(11)(B)(ii), substituted "commercial services" for "commercial items".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(1)
(A) in the case of a prime contract entered into after June 30, 2018, the price of the contract to the Federal Government is expected to exceed $2,000,000; and
(B) in the case of a prime contract entered into on or before June 30, 2018, the price of the contract to the Federal Government is expected to exceed $750,000.
(2)
(A) in the case of a change or modification made to a prime contract referred to in paragraph (1)(A), the price adjustment is expected to exceed $2,000,000;
(B) in the case of a change or modification made to a prime contract that was entered into on or before June 30, 2018, and that has been modified pursuant to subsection (f), the price adjustment is expected to exceed $750,000; and
(C) in the case of a change or modification not covered by subparagraph (A) or (B), the price adjustment is expected to exceed $750,000.
(3)
(A) in the case of a subcontract under a prime contract referred to in paragraph (1)(A), the price of the subcontract is expected to exceed $2,000,000;
(B) in the case of a subcontract entered into under a prime contract that was entered into on or before June 30, 2018, and that has been modified pursuant to subsection (f), the price of the subcontract is expected to exceed $2,000,000; and
(C) in the case of a subcontract not covered by subparagraph (A) or (B), the price of the subcontract is expected to exceed $750,000.
(4)
(A) in the case of a change or modification to a subcontract referred to in paragraph (3)(A) or (B), the price adjustment is expected to exceed $2,000,000; and
(B) in the case of a change or modification to a subcontract referred to in paragraph (3)(C), the price adjustment is expected to exceed $750,000.
(b)
(c)
(1) in the case of a submission by a prime contractor (or an offeror for a prime contract), to the contracting officer for the contract (or a designated representative of the contracting officer); or
(2) in the case of a submission by a subcontractor (or an offeror for a subcontract), to the prime contractor.
(d)
(e)
(f)
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3765; Pub. L. 115–91, div. A, title VIII, §811(a)(2), Dec. 12, 2017, 131 Stat. 1459.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3502 | 41:254b(a). | June 30, 1949, ch. 288, title III, §304A(a), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3278; Pub. L. 105–261, div. A, title VIII, §805(b), Oct. 17, 1998, 112 Stat. 2083. |
2017—Subsec. (a). Pub. L. 115–91, §811(a)(2)(A)(i), (ii), substituted "June 30, 2018" for "October 13, 1994" and "$750,000" for "$100,000" wherever appearing.
Subsec. (a)(1)(A), (2)(A). Pub. L. 115–91, §811(a)(2)(A)(iii), substituted "$2,000,000" for "$500,000".
Subsec. (a)(2)(B). Pub. L. 115–91, §811(a)(2)(A)(iv), substituted "$750,000" for "$500,000".
Subsec. (a)(3)(A), (B), (4)(A). Pub. L. 115–91, §811(a)(2)(A)(iii), substituted "$2,000,000" for "$500,000".
Subsec. (f). Pub. L. 115–91, §811(a)(2)(B), substituted "June 30, 2018" for "October 13, 1994".
Subsec. (g). Pub. L. 115–91, §811(a)(2)(C), substituted "in accordance with section 1908." for "to the amount that is equal to the fiscal year 1994 constant dollar value of the amount set forth. Any amount, as so adjusted, that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. In the case of an amount that is evenly divisible by $25,000 but not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000."
(a)
(1) for which the price agreed on is based on—
(A) adequate price competition; or
(B) prices set by law or regulation;
(2) for the acquisition of a commercial product or a commercial service; or
(3) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this chapter may be waived and justifies in writing the reasons for the determination.
(b)
(1) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1) or (2) of subsection (a); and
(2) the modification would not change the contract or subcontract from a contract or subcontract for the acquisition of a commercial product or a commercial service to a contract or subcontract for the acquisition of an item other than a commercial product or a commercial service.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3766; Pub. L. 115–232, div. A, title VIII, §836(b)(12), Aug. 13, 2018, 132 Stat. 1863.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3503 | 41:254b(b). | June 30, 1949, ch. 288, title III, §304A(b), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3279; Pub. L. 104–106, title XLII, §4201(b)(1), Feb. 10, 1996, 110 Stat. 651. |
In subsection (b)(2), the words "as the case may be" are omitted as unnecessary.
2018—Subsec. (a)(2). Pub. L. 115–232, §836(b)(12)(A), substituted "a commercial product or a commercial service" for "a commercial item".
Subsec. (b). Pub. L. 115–232, §836(b)(12)(B), in heading, substituted "Commercial Products or Commercial Services" for "Commercial Items" and, in text, substituted "a commercial product or a commercial service" for "a commercial item" wherever appearing.
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3767.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3504 | 41:254b(c). | June 30, 1949, ch. 288, title III, §304A(c), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3280; Pub. L. 104–106, title XLII, §§4201(b)(1), 4321(e)(3), Feb. 10, 1996, 110 Stat. 651, 675. |
(a)
(b)
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3767; Pub. L. 115–232, div. A, title VIII, §836(b)(13), Aug. 13, 2018, 132 Stat. 1863.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3505 | 41:254b(d). | June 30, 1949, ch. 288, title III, §304A(d), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3281; Pub. L. 104–106, title XLII, §§4201(b)(1), 4321(e)(4), Feb. 10, 1996, 110 Stat. 652, 675; Pub. L. 105–261, div. A, title VIII, §808(b), Oct. 17, 1998, 112 Stat. 2085. |
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items" wherever appearing.
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(1)
(2)
(b)
(c)
(1) the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted by the contractor or subcontractor because the contractor or subcontractor—
(A) was the sole source of the property or services procured; or
(B) otherwise was in a superior bargaining position with respect to the property or services procured;
(2) the contracting officer should have known that the cost or pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting officer;
(3) the contract was based on an agreement between the contractor and the Federal Government about the total cost of the contract and there was no agreement about the cost of each item procured under the contract; or
(4) the prime contractor or subcontractor did not submit a certification of cost or pricing data relating to the contract as required by section 3502(b) of this title.
(d)
(1)
(A) the contractor certifies to the contracting officer (or to a designated representative of the contracting officer) that, to the best of the contractor's knowledge and belief, the contractor is entitled to the offset; and
(B) the contractor proves that the cost or pricing data were available before the date of agreement on the price of the contract (or price of the modification), or, if applicable, consistent with subsection (a)(2), another date agreed on by the parties, and that the data were not submitted as specified in section 3502(c) of this title before that date.
(2)
(A) the certification under section 3502(b) of this title with respect to the cost or pricing data involved was known to be false when signed; or
(B) the Federal Government proves that, had the cost or pricing data referred to in paragraph (1)(B) been submitted to the Federal Government before date of agreement on the price of the contract (or price of the modification), or, if applicable, under subsection (a)(2), another date agreed on by the parties, the submission of the cost or pricing data would not have resulted in an increase in that price in the amount to be offset.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3768.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3506 | 41:254b(e). | June 30, 1949, ch. 288, title III, §304A(e), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3282. |
(a)
(1) for interest on the amount of the overpayment, to be computed—
(A) for the period beginning on the date the overpayment was made to the contractor and ending on the date the contractor repays the amount of the overpayment to the Federal Government; and
(B) at the current rate prescribed by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986 (26 U.S.C. 6621); and
(2) if the submission of the defective data was a knowing submission, for an additional amount equal to the amount of the overpayment.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3769.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3507 | 41:254b(f). | June 30, 1949, ch. 288, title III, §304A(f), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3283. |
For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this chapter, an executive agency shall have the authority provided by section 4706(b)(2) of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3770.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3508 | 41:254b(g). | June 30, 1949, ch. 288, title III, §304A(g), as added Pub. L. 103–355, title I, §1251(a)(2), Oct. 13, 1994, 108 Stat. 3283. |
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3770; Pub. L. 115–232, div. A, title VIII, §836(b)(14), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3509 | 41:251 note. | Pub. L. 110–252, title VI, §§6102, 6103, June 30, 2008, 122 Stat. 2386, 2387. |
In subsection (b), the words "shall include" are substituted for "shall be amended" and "to include" to reflect the permanence of the provision. The words "within 180 days after the date of the enactment of this Act" are omitted as obsolete.
2018—Subsec. (b). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3770.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3701(a) | 41:253b(a). | June 30, 1949, ch. 288, title III, §303B(a), (b), as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1179; Pub. L. 103–355, title I, §1061(c)(1), Oct. 13, 1994, 108 Stat. 3267. |
| 3701(b) | 41:253b(b). |
Pub. L. 115–232, div. A, title VIII, §880, Aug. 13, 2018, 132 Stat. 1909, as amended by Pub. L. 116–92, div. A, title VIII, §806(a)(2), Dec. 20, 2019, 133 Stat. 1485, provided that:
"(a)
"(b)
"(1) an executive agency is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers;
"(2) the executive agency would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal;
"(3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offeror's proposal versus a competing proposal;
"(4) the executive agency has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the executive agency;
"(5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and
"(6) the executive agency has determined that the lowest price reflects full life-cycle costs, including for operations and support.
"(c)
"(1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, health care services and records, telecommunications devices and services, or other knowledge-based professional services;
"(2) personal protective equipment; or
"(3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.
"(d)
"(1)
"(2)
"(3)
Pub. L. 98–577, title I, §101, Oct. 30, 1984, 98 Stat. 3066, provided that: "The purposes of this Act [see Tables for classification] are to—
"(1) eliminate procurement procedures and practices that unnecessarily inhibit full and open competition for contracts;
"(2) promote the use of contracting opportunities as a means to expand the industrial base of the United States in order to ensure adequate responsive capability of the economy to the increased demands of the Government in times of national emergency; and
"(3) foster opportunities for the increased participation in the competitive procurement process of small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals."
Ex. Ord. No. 12979, Oct. 25, 1995, 60 F.R. 55171, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to ensure effective and efficient expenditure of public funds and fair and expeditious resolution of protests to the award of Federal procurement contracts, it is hereby ordered as follows:
(a) emphasize that whenever conduct of a procurement is contested, all parties should use their best efforts to resolve the matter with agency contracting officers;
(b) to the maximum extent practicable, provide for inexpensive, informal, procedurally simple, and expeditious resolution of protests, including, where appropriate and as permitted by law, the use of alternative dispute resolution techniques, third party neutrals, and another agency's personnel;
(c) allow actual or prospective bidders or offerors whose direct economic interests would be affected by the award or failure to award the contract to request a review, at a level above the contracting officer, of any decision by a contracting officer that is alleged to have violated a statute or regulation and, thereby, caused prejudice to the protester; and
(d) except where immediate contract award or performance is justified for urgent and compelling reasons or is determined to be in the best interest of the United States, prohibit award or performance of the contract while a timely filed protest is pending before the agency. To allow for the withholding of a contract award or performance, the agency must have received notice of the protest within either 10 calendar days after the contract award or 5 calendar days after the bidder or offeror who is protesting the contract award was given the opportunity to be debriefed by the agency, whichever date is later.
(b) review and evaluate agency experience and performance under this order, and report on any findings to the President within 2 years from the date of this order.
William J. Clinton.
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3770.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3702(a) | 41:253b(c) (1st sentence). | June 30, 1949, ch. 288, title III, §303B(c), as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1179; Pub. L. 103–355, title I, §§1061(c)(2), 1063(a), Oct. 13, 1994, 108 Stat. 3267, 3268. |
| 3702(b) | 41:253b(c) (2d sentence). | |
| 3702(a) | 41:253b(c) (3d, last sentences). |
(a)
(1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or
(2) based on the proposals received and without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), if, as required by section 3306(b)(2)(B)(i) of this title, the solicitation included a statement that proposals are intended to be evaluated, and award made, without discussions unless discussions are determined to be necessary.
(b)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3771.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3703(a) | 41:253b(d)(1). | June 30, 1949, ch. 288, title III, §303B(d), as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1180; Pub. L. 103–355, title I, §§1061(c)(3), 1063(b), Oct. 13, 1994, 108 Stat. 3267, 3268; Pub. L. 104–106, title XLI, §4103(b), Feb. 10, 1996, 110 Stat. 644. |
| 3703(b) | 41:253b(d)(2). | |
| 3703(c) | 41:253b(d)(3) (1st sentence). | |
| 3703(d) | 41:253b(d)(3) (last sentence). |
(a)
(b)
(c)
(1) the executive agency's evaluation of the significant weak or deficient factors in the offeror's offer;
(2) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror;
(3) the overall ranking of all offers;
(4) a summary of the rationale for the award;
(5) in the case of a proposal that includes a commercial product that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract; and
(6) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.
(d)
(e)
(f)
(1) the information provided in debriefings under this section regarding the offer of the contractor awarded the contract; and
(2) the same information that would have been provided to the original offerors.
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3771; Pub. L. 115–232, div. A, title VIII, §836(b)(15), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3704(a) | 41:253b(e)(1) (1st sentence). | June 30, 1949, ch. 288, title III, §303B(e), as added Pub. L. 103–355, title I, §1064(2), Oct. 13, 1994, 108 Stat. 3268; Pub. L. 104–106, title XLI, §4104(b)(1), Feb. 10, 1996, 110 Stat. 645. |
| 3704(b) | 41:253b(e)(1) (last sentence). | |
| 3704(c) | 41:253b(e)(2). | |
| 3704(d) | 41:253b(e)(3). | |
| 3704(e) | 41:253b(e)(4). | |
| 3704(f) | 41:253b(e)(5). | |
| 3704(g) | 41:253b(g) (related to 41:253b(e)). | June 30, 1949, ch. 288, title III, §303B(g) (related to §303B(e)), as added Pub. L. 104–106, title XLI, §4104(b)(3), Feb. 10, 1996, 110 Stat. 645. |
2018—Subsec. (c)(5). Pub. L. 115–232 substituted "commercial product" for "commercial item".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(b)
(c)
(d)
(1) the executive agency's evaluation of the significant elements in the offeror's offer;
(2) a summary of the rationale for the offeror's exclusion; and
(3) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency.
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3772.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3705(a) | 41:253b(f)(1) (1st sentence). | June 30, 1949, ch. 288, title III, §303B(f), (g) (related to §303B(f)), as added Pub. L. 104–106, title XLI, §4104(b)(3), Feb. 10, 1996, 110 Stat. 645. |
| 3705(b) | 41:253b(f)(1) (last sentence). | |
| 3705(c) | 41:253b(f)(2). | |
| 3705(d) | 41:253b(f)(3). | |
| 3705(e) | 41:253b(f)(4). | |
| 3705(f) | 41:253b(g) (related to 41:253b(f)). |
The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3773.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3706 | 41:253b(h). | June 30, 1949, ch. 288, title III, §303B(h), as added Pub. L. 104–106, title XLI, §4104(b)(3), Feb. 10, 1996, 110 Stat. 645. |
If the agency head considers that a bid or proposal evidences a violation of the antitrust laws, the agency head shall refer the bid or proposal to the Attorney General for appropriate action.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3773.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3707 | 41:253b(i). | June 30, 1949, ch. 288, title III, §303B(i), formerly §303B(e), as added Pub. L. 98–369, title VII, §2711(a)(2), July 18, 1984, 98 Stat. 1180; redesignated as §303B(f), Pub. L. 103–355, title I, §1064(1), Oct. 13, 1994, 108 Stat. 3268; redesignated as §303B(i), Pub. L. 104–106, title XLI, §4104(b)(2), Feb. 10, 1996, 110 Stat. 645. |
(a)
(1)
(2)
(b)
(1) take any action set out in subparagraphs (A) to (F) of subsection (b)(1) of section 3554 of title 31; and
(2) pay costs described in paragraph (1) of section 3554(c) of title 31 within the limits referred to in paragraph (2) of section 3554(c).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3773.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3708(a) | 41:253b(k). | June 30, 1949, ch. 288, title III, §303B(k), formerly §303B(h), as added Pub. L. 103–355, title I, §1065, Oct. 13, 1994, 108 Stat. 3269; redesignated as §303B(k), Pub. L. 104–106, title XLI, §4104(b)(2), Feb. 10, 1996, 110 Stat. 645; Pub. L. 104–106, title XLI, §5607(c), Feb. 10, 1996, 110 Stat. 701, as amended Pub. L. 104–201, title X, §1074(b)(7) (less effective date), Sept. 23, 1996, 110 Stat. 2660. |
| 3708(b) | 41:253b(l). | June 30, 1949, ch. 288, title III, §303B(l), formerly §303B(i), as added Pub. L. 103–355, title I, §1066, Oct. 13, 1994, 108 Stat. 3269; redesignated as §303B(l), Pub. L. 104–106, title XLI, §4104(b)(2), Feb. 10, 1996, 110 Stat. 645. |
Act June 30, 1949, ch. 288, title VI, §604, formerly title V, §504, 63 Stat. 403, renumbered by act Sept. 5, 1950, ch. 849, §6(a), (b), 64 Stat. 583, provided that: "If any provision of this Act [see Tables for classification], or the application thereof to any person or circumstances, is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances, shall not be affected thereby."
Pub. L. 115–232, div. A, title VIII, §889, Aug. 13, 2018, 132 Stat. 1917, as amended by Pub. L. 116–283, div. A, title X, §1081(d)(5), Jan. 1, 2021, 134 Stat. 3874, provided that:
"(a)
"(A) procure or obtain or extend or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or
"(B) enter into a contract (or extend or renew a contract) with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system.
"(2) Nothing in paragraph (1) shall be construed to—
"(A) prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
"(B) cover telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
"(b)
"(2) In implementing the prohibition in paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs, including the heads of the Federal Communications Commission, the Department of Agriculture, the Department of Homeland Security, the Small Business Administration, and the Department of Commerce, shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained.
"(3) Nothing in this subsection shall be construed to—
"(A) prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
"(B) cover telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
"(c)
"(d)
"(1)
"(A) provides a compelling justification for the additional time to implement the requirements under such subsection, as determined by the head of the executive agency; and
"(B) submits to the head of the executive agency, who shall not later than 30 days thereafter submit to the appropriate congressional committees, a full and complete laydown of the presences of covered telecommunications or video surveillance equipment or services in the entity's supply chain and a phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the entity's systems.
"(2)
"(f)
"(1)
"(A) the Committee on Banking, Housing, and Urban Affairs, the Committee on Foreign Relations, and the Committee on Homeland Security and Governmental Affairs of the Senate; and
"(B) the Committee on Financial Services, the Committee on Foreign Affairs, and the Committee on Oversight and Government Reform [now Committee on Oversight and Reform] of the House of Representatives.
"(2)
"(3)
"(A) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
"(B) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
"(C) Telecommunications or video surveillance services provided by such entities or using such equipment.
"(D) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
"(4)
[Pub. L. 116–283, div. A, title X, §1081(d), Jan. 1, 2021, 134 Stat. 3873, provided that the amendment made by section 1081(d)(5) of Pub. L. 116–283 to section 889 of Pub. L. 115–232, set out above, is effective as of Aug. 13, 2018, and as if included in Pub. L. 115–232.]
Act June 30, 1949, ch. 288, title III, §317, as added Pub. L. 107–347, title II, §210(b), Dec. 17, 2002, 116 Stat. 2934, provided that:
"(a)
"(2)(A) Except as provided in subparagraph (B), a share-in-savings contract shall be awarded for a period of not more than five years.
"(B) A share-in-savings contract may be awarded for a period greater than five years, but not more than 10 years, if the head of the agency determines in writing prior to award of the contract that—
"(i) the level of risk to be assumed and the investment to be undertaken by the contractor is likely to inhibit the government from obtaining the needed information technology competitively at a fair and reasonable price if the contract is limited in duration to a period of five years or less; and
"(ii) usage of the information technology to be acquired is likely to continue for a period of time sufficient to generate reasonable benefit for the government.
"(3) Contracts awarded pursuant to the authority of this section shall, to the maximum extent practicable, be performance-based contracts that identify objective outcomes and contain performance standards that will be used to measure achievement and milestones that must be met before payment is made.
"(4) Contracts awarded pursuant to the authority of this section shall include a provision containing a quantifiable baseline that is to be the basis upon which a savings share ratio is established that governs the amount of payment a contractor is to receive under the contract. Before commencement of performance of such a contract, the senior procurement executive of the agency shall determine in writing that the terms of the provision are quantifiable and will likely yield value to the Government.
"(5)(A) The head of the agency may retain savings realized through the use of a share-in-savings contract under this section that are in excess of the total amount of savings paid to the contractor under the contract, but may not retain any portion of such savings that is attributable to a decrease in the number of civilian employees of the Federal Government performing the function. Except as provided in subparagraph (B), savings shall be credited to the appropriation or fund against which charges were made to carry out the contract and shall be used for information technology.
"(B) Amounts retained by the agency under this subsection shall—
"(i) without further appropriation, remain available until expended; and
"(ii) be applied first to fund any contingent liabilities associated with share-in-savings procurements that are not fully funded.
"(b)
"(A) appropriations available for the performance of the contract;
"(B) appropriations available for acquisition of the information technology procured under the contract, and not otherwise obligated; or
"(C) funds subsequently appropriated for payments of costs of cancellation or termination, subject to the limitations in paragraph (3).
"(2) The amount payable in the event of cancellation or termination of a share-in-savings contract shall be negotiated with the contractor at the time the contract is entered into.
"(3)(A) Subject to subparagraph (B), the head of an executive agency may enter into share-in-savings contracts under this section in any given fiscal year even if funds are not made specifically available for the full costs of cancellation or termination of the contract if funds are available and sufficient to make payments with respect to the first fiscal year of the contract and the following conditions are met regarding the funding of cancellation and termination liability:
"(i) The amount of unfunded contingent liability for the contract does not exceed the lesser of—
"(I) 25 percent of the estimated costs of a cancellation or termination; or
"(II) $5,000,000.
"(ii) Unfunded contingent liability in excess of $1,000,000 has been approved by the Director of the Office of Management and Budget or the Director's designee.
"(B) The aggregate number of share-in-savings contracts that may be entered into under subparagraph (A) by all executive agencies to which this chapter applies in a fiscal year may not exceed 5 in each of fiscal years 2003, 2004, and 2005.
"(c)
"(1) The term 'contractor' means a private entity that enters into a contract with an agency.
"(2) The term 'savings' means—
"(A) monetary savings to an agency; or
"(B) savings in time or other benefits realized by the agency, including enhanced revenues (other than enhanced revenues from the collection of fees, taxes, debts, claims, or other amounts owed the Federal Government).
"(3) The term 'share-in-savings contract' means a contract under which—
"(A) a contractor provides solutions for—
"(i) improving the agency's mission-related or administrative processes; or
"(ii) accelerating the achievement of agency missions; and
"(B) the head of the agency pays the contractor an amount equal to a portion of the savings derived by the agency from—
"(i) any improvements in mission-related or administrative processes that result from implementation of the solution; or
"(ii) acceleration of achievement of agency missions.
"(d)
Ex. Ord. No. 13496, Jan. 30, 2009, 74 F.R. 6107, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to ensure the economical and efficient administration and completion of Government contracts, it is hereby ordered that:
"1. During the term of this contract, the contractor agrees to post a notice, of such size and in such form, and containing such content as the Secretary of Labor shall prescribe, in conspicuous places in and about its plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically. The notice shall include the information contained in the notice published by the Secretary of Labor in the Federal Register (Secretary's Notice).
"2. The contractor will comply with all provisions of the Secretary's Notice, and related rules, regulations, and orders of the Secretary of Labor.
"3. In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]]. Such other sanctions or remedies may be imposed as are provided in Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]], or by rule, regulation, or order of the Secretary of Labor, or as are otherwise provided by law.
"4. The contractor will include the provisions of paragraphs (1) through (3) above in every subcontract entered into in connection with this contract (unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order [number as provided by the Federal Register [13496]] of [insert new date [Jan. 30, 2009]]) so that such provisions will be binding upon each subcontractor. The contractor will take such action with respect to any such subcontract as may be directed by the Secretary of Labor as a means of enforcing such provisions, including the imposition of sanctions for non-compliance: Provided, however, that if the contractor becomes involved in litigation with a subcontractor, or is threatened with such involvement, as a result of such direction, the contractor may request the United States to enter into such litigation to protect the interests of the United States."
(a) The Secretary of Labor (Secretary) shall be responsible for the administration and enforcement of this order. The Secretary shall adopt such rules and regulations and issue such orders as are necessary and appropriate to achieve the purposes of this order.
(b) Within 120 days of the effective date of this order, the Secretary shall initiate a rulemaking to prescribe the size, form, and content of the notice to be posted by a contractor under paragraph 1 of the contract clause described in section 2 of this order. Such notice shall describe the rights of employees under Federal labor laws, consistent with the policy set forth in section 1 of this order.
(c) Whenever the Secretary finds that an act of Congress, clarification of existing law by the courts or the National Labor Relations Board, or other circumstances make modification of the contractual provisions set out in subsection (a) of this section necessary to achieve the purposes of this order, the Secretary promptly shall issue such rules, regulations, or orders as are needed to cause the substitution or addition of appropriate contractual provisions in Government contracts thereafter entered into.
(b) The Secretary may, if the Secretary finds that special circumstances require an exemption in order to serve the national interest, exempt a contracting department or agency from the requirements of any or all of the provisions of section 2 of this order with respect to a particular contract or subcontract or class of contracts or subcontracts.
(a) The Secretary may investigate any Government contractor, subcontractor, or vendor to determine whether the contractual provisions required by section 2 of this order have been violated.
Such investigations shall be conducted in accordance with procedures established by the Secretary.
(b) The Secretary shall receive and investigate complaints by employees of a Government contractor or subcontractor, where such complaints allege a failure to perform or a violation of the contractual provisions required by section 2 of this order.
(a) The Secretary, or any agency or officer in the executive branch lawfully designated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, regarding compliance with this order as the Secretary may deem advisable.
(b) The Secretary may hold hearings, or cause hearings to be held, in accordance with subsection (a) of this section, prior to imposing, ordering, or recommending the imposition of sanctions under this order. Neither an order for cancellation, termination, or suspension of any contract or debarment of any contractor from further Government contracts under section 7(b) of this order nor the inclusion of a contractor on a published list of noncomplying contractors under section 7(c) of this order shall be carried out without affording the contractor an opportunity for a hearing.
(a) after consulting with the contracting department or agency, direct that department or agency to cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor to comply with the contractual provisions required by section 2 of this order; contracts may be cancelled, terminated, or suspended absolutely, or continuance of contracts may be conditioned upon future compliance: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of the contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that completion of the contract is essential to the agency's mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of the contracting department or agency, or his or her designee, continues to object to the issuance of such directive;
(b) after consulting with each affected contracting department or agency, provide that one or more contracting departments or agencies shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary that such contractor has complied with and will carry out the provisions of this order: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of each contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that further contracts or extensions or other modifications of existing contracts with the noncomplying contractor are essential to the agency's mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of a contracting department or agency, or his or her designee, continues to object to the issuance of such directive; and
(c) publish, or cause to be published, the names of contractors that have, in the judgment of the Secretary, failed to comply with the provisions of this order or of related rules, regulations, and orders of the Secretary.
(a) Nothing in this order shall be construed to impair or otherwise affect:
(i) authority granted by law to a department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Ex. Ord. No. 13502, Feb. 6, 2009, 74 F.R. 6985, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to promote the efficient administration and completion of Federal construction projects, it is hereby ordered that:
(b) The use of a project labor agreement may prevent these problems from developing by providing structure and stability to large-scale construction projects, thereby promoting the efficient and expeditious completion of Federal construction contracts. Accordingly, it is the policy of the Federal Government to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects in order to promote economy and efficiency in Federal procurement.
(a) The term "labor organization" as used in this order means a labor organization as defined in 29 U.S.C. 152(5).
(b) The term "construction" as used in this order means construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property.
(c) The term "large-scale construction project" as used in this order means a construction project where the total cost to the Federal Government is $25 million or more.
(d) The term "executive agency" as used in this order has the same meaning as in 5 U.S.C. 105, but excludes the Government Accountability Office.
(e) The term "project labor agreement" as used in this order means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f).
(b) If an executive agency determines under subsection (a) that the use of a project labor agreement will satisfy the criteria in clauses (i) and (ii) of that subsection, the agency may, if appropriate, require that every contractor or subcontractor on the project agree, for that project, to negotiate or become a party to a project labor agreement with one or more appropriate labor organizations.
(a) bind all contractors and subcontractors on the Construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;
(b) allow all contractors and subcontractors to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;
(c) contain guarantees against strikes, lockouts, and similar job disruptions;
(d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the project labor agreement;
(e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and
(f) fully conform to all statutes, regulations, and Executive Orders.
(i) authority granted by law to an executive department, agency, or the head thereof; or
(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
Ex. Ord. No. 13981, Jan. 18, 2021, 86 F.R. 6821, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America,
I, DONALD J. TRUMP, President of the United States of America, find that additional actions are necessary to ensure the security of Unmanned Aircraft Systems (UAS) owned, operated, and controlled by the Federal Government; to secure the integrity of American infrastructure, including America's National Airspace System (NAS); to protect our law enforcement and warfighters; and to maintain and expand our domestic industrial base capabilities.
Accordingly, I hereby order:
United States Government operations involving UAS require accessing, collecting, and maintaining data, which could reveal sensitive information. The use of UAS and critical components manufactured and developed by foreign adversaries, or by persons under their control, may allow this sensitive information to be accessed by or transferred to foreign adversaries. Furthermore, the manufacturing of UAS involves combining several critical components, including advanced manufacturing techniques, artificial intelligence, microelectronic components, and multi-spectral sensors. The Nation's capability to produce UAS and certain critical UAS components domestically is critical for national defense and the security and strength of our defense industrial base.
It is the policy of the United States, therefore, to prevent the use of taxpayer dollars to procure UAS that present unacceptable risks and are manufactured by, or contain software or critical electronic components from, foreign adversaries, and to encourage the use of domestically produced UAS.
(i) directly procuring or indirectly procuring through a third party, such as a contractor, a covered UAS;
(ii) providing Federal financial assistance (e.g., through award of a grant) that may be used to procure a covered UAS;
(iii) entering into, or renewing, a contract, order, or other commitment for the procurement of a covered UAS; or
(iv) otherwise providing Federal funding for the procurement of a covered UAS.
(b) After conducting the review described in subsection (a) of this section, the heads of all agencies shall each submit a report to the Director of the Office of Management and Budget identifying any authority to take the actions outlined in subsections (a)(i) through (iv) of this section.
(b) Within 180 days of the date of this order, the Director of National Intelligence, in consultation with the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Science and Technology Policy, and the heads of other agencies, as appropriate, shall review the reports required by subsection (a) of this section and submit a report to the President assessing the security risks posed by the existing Federal UAS fleet and outlining potential steps that could be taken to mitigate these risks, including, if warranted, discontinuing all Federal use of covered UAS and the expeditious removal of UAS from Federal service.
(b) The Director of the Office of Management and Budget shall work with the heads of all agencies to identify possible sources of funding to replace covered UAS in the Federal fleet in future submissions of the President's Budget request.
(a) The term "adversary country" means the Democratic People's Republic of Korea, the Islamic Republic of Iran, the People's Republic of China, the Russian Federation, or, as determined by the Secretary of Commerce, any other foreign nation, foreign area, or foreign non-government entity engaging in long-term patterns or serious instances of conduct significantly adverse to the national or economic security of the United States.
(b) The term "covered UAS" means any UAS that:
(i) is manufactured, in whole or in part, by an entity domiciled in an adversary country;
(ii) uses critical electronic components installed in flight controllers, ground control system processors, radios, digital transmission devices, cameras, or gimbals manufactured, in whole or in part, in an adversary country;
(iii) uses operating software (including cell phone or tablet applications, but not cell phone or tablet operating systems) developed, in whole or in part, by an entity domiciled in an adversary country;
(iv) uses network connectivity or data storage located outside the United States, or administered by any entity domiciled in an adversary country; or
(v) contains hardware and software components used for transmitting photographs, videos, location information, flight paths, or any other data collected by the UAS manufactured by an entity domiciled in an adversary country.
(c) The term "critical electronic component" means any electronic device that stores, manipulates, or transfers digital data. The term critical electronic component does not include, for example, passive electronics such as resistors, and non-data transmitting motors, batteries, and wiring.
(d) The term "entity" means a partnership, association, trust, joint venture, corporation, government, group, subgroup, other organization, or person.
(e) The term "Intelligence Community" has the same meaning set forth for that term in section 3003(4) of title 50, United States Code.
(f) The term "National Airspace System" (NAS) means the common network of United States airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. The term also includes system components shared jointly by the Departments of Defense, Transportation, and Homeland Security.
(g) The term "Unmanned Aircraft Systems" (UAS) means any unmanned aircraft, and the associated elements that are required for the pilot or system operator to operate safely and efficiently in the NAS, including communication links, the components that control the unmanned aircraft, and all critical electronic components. The term UAS does not include any separate communication device, such as a cellular phone or tablet, designed to perform independently of a UAS system, which may be incorporated into the operation of a UAS.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
Ex. Ord. No. 14063, Feb. 4, 2022, 87 F.R. 7363, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and in order to promote economy and efficiency in the administration and completion of Federal construction projects, it is hereby ordered that:
(b) Project labor agreements are often effective in preventing these problems from developing because they provide structure and stability to large-scale construction projects. Such agreements avoid labor-related disruptions on projects by using dispute-resolution processes to resolve worksite disputes and by prohibiting work stoppages, including strikes and lockouts. They secure the commitment of all stakeholders on a construction site that the project will proceed efficiently without unnecessary interruptions. They also advance the interests of project owners, contractors, and subcontractors, including small businesses. For these reasons, owners and contractors in both the public and private sector routinely use project labor agreements, thereby reducing uncertainties in large-scale construction projects. The use of project labor agreements is fully consistent with the promotion of small business interests.
(c) Accordingly, it is the policy of the Federal Government for agencies to use project labor agreements in connection with large-scale construction projects to promote economy and efficiency in Federal procurement.
(a) "Labor organization" means a labor organization as defined in 29 U.S.C. 152(5) of which building and construction employees are members, as described in 29 U.S.C. 158(f).
(b) "Construction" means construction, reconstruction, rehabilitation, modernization, alteration, conversion, extension, repair, or improvement of buildings, structures, highways, or other real property.
(c) "Large-scale construction project" means a Federal construction project within the United States for which the total estimated cost of the construction contract to the Federal Government is $35 million or more. The Federal Acquisition Regulatory Council (FAR Council), in consultation with the Council of Economic Advisers, may adjust this threshold based on inflation using the process at 41 U.S.C. 1908.
(d) "Agency" means an executive department or agency, including an independent establishment subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A).
(e) "Project labor agreement" means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f).
(a) bind all contractors and subcontractors on the construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;
(b) allow all contractors and subcontractors on the construction project to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements;
(c) contain guarantees against strikes, lockouts, and similar job disruptions;
(d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement;
(e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and
(f) fully conform to all statutes, regulations, Executive Orders, and Presidential Memoranda.
(a) Requiring a project labor agreement on the project would not advance the Federal Government's interests in achieving economy and efficiency in Federal procurement. Such a finding shall be based on the following factors:
(i) The project is of short duration and lacks operational complexity;
(ii) The project will involve only one craft or trade;
(iii) The project will involve specialized construction work that is available from only a limited number of contractors or subcontractors;
(iv) The agency's need for the project is of such an unusual and compelling urgency that a project labor agreement would be impracticable; or
(v) The project implicates other similar factors deemed appropriate in regulations or guidance issued pursuant to section 8 of this order.
(b) Based on an inclusive market analysis, requiring a project labor agreement on the project would substantially reduce the number of potential bidders so as to frustrate full and open competition.
(c) Requiring a project labor agreement on the project would otherwise be inconsistent with statutes, regulations, Executive Orders, or Presidential Memoranda.
(b) On a quarterly basis, agencies shall report to the Office of Management and Budget (OMB) on their use of project labor agreements on large-scale construction projects and on the exceptions granted under section 5 of this order.
(b) The Director of OMB shall, to the extent permitted by law, issue guidance to implement the requirements of sections 5 and 6 of this order.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
J.R. Biden, Jr.
(a)
(b)
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3774; Pub. L. 115–232, div. A, title VIII, §836(b)(16), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3901 | 41:254(a). | June 30, 1949, ch. 288, title III, §304(a), 63 Stat. 395; Pub. L. 98–369, div. B, title VII, §2714(a)(3)(A), (B), July 18, 1984, 98 Stat. 1184; Pub. L. 103–355, title IV, §4103(c), title VIII, §8204(b), Oct. 13, 1994, 108 Stat. 3341, 3396. |
In subsection (b)(2), the words "in its discretion" are omitted as unnecessary.
2018—Subsec. (b)(3). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3774.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3902 | 41:253l. | June 30, 1949, ch. 288, title III, §303L, as added Pub. L. 103–355, title I, §1073, Oct. 13, 1994, 108 Stat. 3271, as amended Pub. L. 104–106, title XLIII, §4321(a)(1), Feb. 10, 1996, 110 Stat. 671. |
Pub. L. 113–76, div. E, title III, §306, Jan. 17, 2014, 128 Stat. 203, provided that: "The Supreme Court of the United States, the Federal Judicial Center, and the United States Sentencing Commission are hereby authorized, now and hereafter, to enter into contracts for the acquisition of severable services for a period that begins in one fiscal year and ends in the next fiscal year and to enter into contracts for multiple years for the acquisition of property and services, to the same extent as executive agencies under the authority of 41 U.S.C. sections 3902 and 3903, respectively."
(a)
(b)
(1) funds are available and obligated for the contract, for the full period of the contract or for the first fiscal year in which the contract is in effect, and for the estimated costs associated with a necessary termination of the contract; and
(2) the executive agency determines that—
(A) the need for the property or services is reasonably firm and continuing over the period of the contract; and
(B) a multiyear contract will serve the best interests of the Federal Government by encouraging full and open competition or promoting economy in administration, performance, and operation of the agency's programs.
(c)
(d)
(e)
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3774.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3903(a) | 41:254c(d) (1st sentence). | June 30, 1949, ch. 288, title III, §304B, as added Pub. L. 103–355, title I, §1072, Oct. 13, 1994, 108 Stat. 3270. |
| 3903(b) | 41:254c(a). | |
| 3903(c) | 41:254c(b). | |
| 3903(d) | 41:254c(c). | |
| 3903(e) | 41:254c(d) (last sentence). | |
| 3903(f) | 41:254c(e). |
(a)
(b)
(c)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title.
(d)
(e)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent and under the same conditions as the head of an executive agency under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisition of property and services to the same extent and under the same conditions as executive agencies under the authority of section 3903 of this title.
(f)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title.
(g)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title.
(h)
(1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year under the authority of section 3902 of this title; and
(2) multiyear contracts for the acquisition of property and services under the authority of section 3903 of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3775.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3904(a) | 41:253l–1. | Pub. L. 105–18, title II, §7004, June 12, 1997, 111 Stat. 192. |
| 3904(b) | 41:253l–2. | Pub. L. 106–57, title II, §207, Sept. 29, 1999, 113 Stat. 423. |
| 3904(c) | 41:253l–3. | Pub. L. 106–554, §1(a)(2) [title I, §§101, 110], Dec. 21, 2000, 114 Stat. 2763A–100, 2763A–108. |
| 3904(d) | 41:253l–4. | |
| 3904(e) | 41:253l–5. | Pub. L. 108–7, div. H, title I, §§5, 1002, 1202, Feb. 20, 2003, 117 Stat. 350, 357, 373. |
| 3904(f) | 41:253l–6. | |
| 3904(g) | 41:253l–7. | |
| 3904(h) | 41:253l–8. | Pub. L. 108–72, §4, Aug. 15, 2003, 117 Stat. 889. |
In subsections (a)–(c) and (e)–(h), the words "procurement of severable services" are substituted for "acquisition of severable services" for consistency with 41:253l, restated as section 3902 of the revised title.
In subsection (c), the words "During fiscal year 2001 and any succeeding fiscal year" are omitted as obsolete.
In subsection (d), the words "Beginning on December 21, 2000, and hereafter" are omitted as obsolete.
In subsection (e), the text of 41:253l–5(b) is omitted as obsolete.
In subsection (f), the text of 41:253l–6(b) is omitted as obsolete.
In subsection (g), the text of 41:253l–7(b) is omitted as obsolete.
In subsection (h), the text of 41:253l–8(b) is omitted as obsolete.
(a)
(b)
(1)
(2)
(3)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3776.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3905(a) | 41:254(b) (1st sentence words before 1st comma). | June 30, 1949, ch. 288, title III, §304(b), 63 Stat. 395; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 103–355, title I, §1071, title IV, §4402(c), title X, §10005(e), Oct. 13, 1994, 108 Stat. 3270, 3349, 3408. |
| 3905(b) | 41:254(b) (1st sentence words after 1st comma). | |
| 3905(c) | 41:254(b) (last sentence words before semicolon). | |
| 3905(d) | 41:254(b) (last sentence words after semicolon). |
(a)
(b)
(c)
(1) when and under what circumstances cost-reimbursement contracts are appropriate;
(2) the acquisition plan findings necessary to support a decision to use cost-reimbursement contracts; and
(3) the acquisition workforce resources necessary to award and manage cost-reimbursement contracts.
(d)
(1)
(2)
(A) the total number and value of contracts awarded and orders issued during the covered fiscal year;
(B) the total number and value of cost-reimbursement contracts awarded and orders issued during the covered fiscal year; and
(C) an assessment of the effectiveness of the regulations promulgated pursuant to subsection (b) in ensuring the appropriate use of cost-reimbursement contracts.
(3)
(A)
(B)
(e)
(1) the Committee on Oversight and Government Reform of the House of Representatives;
(2) the Committee on Homeland Security and Governmental Affairs of the Senate;
(3) the Committees on Appropriations of the House of Representatives and the Senate; and
(4) in the case of the Department of Defense and the Department of Energy, the Committees on Armed Services of the Senate and the House of Representatives.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3777.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 3906 | 41:254 note. | Pub. L. 110–417, [div. A], title VIII, §864(a), (b), (d), (e), (f)(2), (g), Oct. 14, 2008, 122 Stat. 4549. |
In subsection (b), the words "Not later than 270 days after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall address" are substituted for "shall be revised to address" to reflect the permanence of the provision.
In subsection (d), the words "Subject to subsection (f)" are omitted as unnecessary.
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.
Pub. L. 111–350, §6(f)(5), Jan. 4, 2011, 124 Stat. 3855, provided that: "The Federal Acquisition Regulation shall be amended to meet the requirements of section 3906(b) of title 41, United States Code, not later than 270 days after October 14, 2008."
In this chapter:
(1)
(A) does not procure or specify a firm quantity of property (other than a minimum or maximum quantity); and
(B) provides for the issuance of orders for the delivery of property during the period of the contract.
(2)
(A) does not procure or specify a firm quantity of services (other than a minimum or maximum quantity); and
(B) provides for the issuance of orders for the performance of tasks during the period of the contract.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3778.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4101 | 41:253k. | June 30, 1949, ch. 288, title III, §303K, as added Pub. L. 103–355, title I, §1054(a), Oct. 13, 1994, 108 Stat. 3265. |
This chapter does not modify or supersede, and is not intended to impair or restrict, authorities or responsibilities under sections 1101 to 1104 of title 40.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3778.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4102 | 41:253h note. | Pub. L. 103–355, §1054(b), Oct. 13, 1994, 108 Stat. 3265. |
The text of section 1054(b)(1) of the Federal Acquisition Streamlining Act of 1994 (Pub. L. 103–355, 41:253h note) is omitted as obsolete.
(a)
(b)
(1) the period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option;
(2) the maximum quantity or dollar value of the services or property to be procured under the contract; and
(3) a statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract.
(c)
(d)
(1)
(A) to award a single task or delivery order contract; or
(B) if the solicitation states that the head of the executive agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to 2 or more sources.
(2)
(3)
(A)
(i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work;
(ii) the contract provides only for firm, fixed price task orders or delivery orders for—
(I) products for which unit prices are established in the contract; or
(II) services for which prices are established in the contract for the specific tasks to be performed;
(iii) only one source is qualified and capable of performing the work at a reasonable price to the Federal Government; or
(iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source.
(B)
(4)
(A) a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property under paragraph (1)(B); and
(B) criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government.
(e)
(f)
(g)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3778.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4103 | 41:253h. | June 30, 1949, ch. 288, title III, §303H, as added Pub. L. 103–355, title I, §1054(a), Oct. 13, 1994, 108 Stat. 3261; Pub. L. 110–181, title VIII, §843(b)(1), Jan. 28, 2008, 122 Stat. 238. |
In subsection (a), the words "(as defined in section 253k of this title)" are omitted as unnecessary.
(a)
(b)
(1) the appropriate use of Government-wide and other multiagency contracts entered into in accordance with this chapter and chapter 245 of title 10; and
(2) steps that agencies should take in entering into and administering multiple award task and delivery order contracts to ensure compliance with the requirement in—
(A) section 11312 of title 40 for capital planning and investment control in purchases of information technology products and services;
(B) section 4106(c) of this title and section 3406(c) of title 10 to ensure that all contractors are afforded a fair opportunity to be considered for the award of task and delivery orders; and
(C) section 4106(e) of this title and section 3406(e) of title 10 for a statement of work in each task or delivery order issued that clearly specifies all tasks to be performed or property to be delivered under the order.
(c)
(1) the administration of the program by the Administrator of General Services; and
(2) the ordering and program practices followed by Federal customer agencies in using schedules established under the program.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3780; Pub. L. 117–81, div. A, title XVII, §1702(h)(14), Dec. 27, 2021, 135 Stat. 2158.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4104 | 41:253h note. | Pub. L. 106–65, div. A, title VIII, §804, Oct. 5, 1999, 113 Stat. 704. |
In this section, the text of section 804(d) of the National Defense Authorization Act for Fiscal Year 2000 (Pub. L. 106–65, 41:253h note) is omitted as obsolete.
In subsection (a), the words "Not later than 180 days after the date of the enactment of this Act" and "be revised to" are omitted as obsolete.
In subsection (b)(1), the words "this chapter and sections 2304a to 2304d of title 10" are substituted for "the provisions of law referred to in that subsection" for clarity.
2021—Subsecs. (a), (b)(1). Pub. L. 117–81, §1702(h)(14)(A), (B)(i), substituted "chapter 245" for "sections 2304a to 2304d".
Subsec. (b)(2)(B). Pub. L. 117–81, §1702(h)(14)(B)(ii), substituted "section 3406(c)" for "section 2304c(b)".
Subsec. (b)(2)(C). Pub. L. 117–81, §1702(h)(14)(B)(iii), substituted "section 3406(e)" for "section 2304c(c)".
(a)
(b)
(1)
(2)
(c)
(d)
(e)
(1)
(2)
(f)
(1)
(2)
(A) provide for a multiple award authorized under paragraph (1); and
(B) include a statement that the head of the executive agency may also elect to award only one task order contract if the head of the executive agency determines in writing that only one of the offerors is capable of providing the services required at the level of quality required.
(3)
(g)
(1)
(2)
(3)
(h)
(1)
(A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the initial contract was entered into; and
(B) the extension is necessary to ensure continuity of the receipt of services pending the award of, and commencement of performance under, the follow-on contract.
(2)
(i)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3780.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4105(a) | 41:253i(i). | June 30, 1949, ch. 288, title III, §303I, as added Pub. L. 103–355, title I, §1054(a), Oct. 13, 1994, 108 Stat. 3262. |
| 4105(b) | 41:253i(a). | |
| 4105(c)(1) | 41:253i(b). | |
| 4105(c)(2) | 41:253i note. | Pub. L. 109–364, div. A, title VIII, §834(b), (c) (related to (b)), Oct. 17, 2006, 120 Stat. 2333. |
| 4105(d) | 41:253i(c). | |
| 4105(e) | 41:253i(d). | |
| 4105(f) | 41:253i(e). | |
| 4105(g) | 41:253i(f). | |
| 4105(h) | 41:253i(g). | |
| 4105(i) | 41:253i(h). |
In subsection (b)(1), the words "(as defined in section 253k of this title)" are omitted as unnecessary.
In subsection (c)(2)(C), the words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Reform" on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007).
Senate amendment to the bill effectively struck out subsec. (c)(2) and redesignated subsec. (c)(1) as (c). See S. Amdt. 4726 (111th Cong.), 156 Cong. Rec. 18683 (2010).
(a)
(b)
(1) A separate notice for the order under section 1708 of this title or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
(2) Except as provided in subsection (c), a competition (or a waiver of competition approved in accordance with section 3304(e) of this title) that is separate from that used for entering into the contract.
(c)
(1) the executive agency's need for the services or property ordered is of such unusual urgency that providing the opportunity to all of those contractors would result in unacceptable delays in fulfilling that need;
(2) only one of those contractors is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized;
(3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or
(4) it is necessary to place the order with a particular contractor to satisfy a minimum guarantee.
(d)
(1) a notice of the task or delivery order that includes a clear statement of the executive agency's requirements;
(2) a reasonable period of time to provide a proposal in response to the notice;
(3) disclosure of the significant factors and subfactors, including cost or price, that the executive agency expects to consider in evaluating such proposals, and their relative importance;
(4) in the case of an award that is to be made on a best value basis, a written statement documenting—
(A) the basis for the award; and
(B) the relative importance of quality and price or cost factors; and
(5) an opportunity for a post-award debriefing consistent with the requirements of section 3704 of this title.
(e)
(f)
(1)
(A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or
(B) a protest of an order valued in excess of $10,000,000.
(2)
(g)
(1)
(2)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3782; Pub. L. 111–383, div. A, title X, §1075(f)(5)(B), Jan. 7, 2011, 124 Stat. 4376; Pub. L. 112–81, div. A, title VIII, §813, Dec. 31, 2011, 125 Stat. 1491; Pub. L. 114–260, §2, Dec. 14, 2016, 130 Stat. 1361; Pub. L. 114–328, div. A, title VIII, §835(b), Dec. 23, 2016, 130 Stat. 2285; Pub. L. 116–92, div. A, title VIII, §826, Dec. 20, 2019, 133 Stat. 1491.)
This section was derived from section 253j of former Title 41, Public Contracts, which was amended by Pub. L. 110–181, div. A, title VIII, §843(b)(2)(C), Jan. 28, 2008, 122 Stat. 239, to add subsec. (e), from which subsec. (f) of this section was derived, prior to being repealed and reenacted as this section by Pub. L. 111–350, §§3, 7(b), Jan. 4, 2011, 124 Stat. 3677, 3855. The directory language of section 843(b)(2)(C) of Pub. L. 110–181 was amended by Pub. L. 111–383, div. A, title X, §1075(f)(5)(B), Jan. 7, 2011, 124 Stat. 4376. For applicability of that amendment to this section, see section 6(a) of Pub. L. 111–350, set out as a Transitional and Savings Provisions note preceding section 101 of this title. Section 843(b)(2)(C) of Pub. L. 110–181 was amended by striking "paragraph (1)" and inserting "subparagraph (A)".
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4106(a) | 41:253j(g). | June 30, 1949, ch. 288, title III, §303J, as added Pub. L. 103–355, title I, §1054(a), Oct. 13, 1994, 108 Stat. 3264; Pub. L. 110–181, div. A, title VIII, §843(b)(2), Jan. 28, 2008, 122 Stat. 238. |
| 4106(b) | 41:253j(a). | |
| 4106(c) | 41:253j(b). | |
| 4106(d) | 41:253j(d). | |
| 4106(e) | 41:253j(c). | |
| 4106(f) | 41:253j(e). | |
| 4106(g) | 41:253j(f). |
In subsection (g)(2), the words "advocate for competition" are substituted for "competition advocate" for consistency with section 1705 of the revised title.
2019—Subsec. (c). Pub. L. 116–92 substituted "the micro-purchase threshold under section 1902 of this title" for "$2,500" in introductory provisions.
2016—Subsec. (f)(3). Pub. L. 114–260 and Pub. L. 114–328 amended subsec. (f) identically by striking out par. (3). Text read as follows: "Paragraph (1)(B) and paragraph (2) of this subsection shall not be in effect after September 30, 2016."
2011—Subsec. (f)(3). Pub. L. 112–81 amended par. (3) generally. Prior to amendment, text read as follows: "This subsection shall be in effect for three years, beginning on the date that is 120 days after January 28, 2008."
Pub. L. 116–92, div. A, title VIII, §874, Dec. 20, 2019, 133 Stat. 1527, provided that: "Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Federal Acquisition Regulation shall be revised to require that with respect to an offer for a task order or delivery order in an amount greater than the simplified acquisition threshold (as defined in section 134 of title 41, United States Code) and less than or equal to $5,500,000 issued under an indefinite delivery-indefinite quantity contract, the contracting officer for such contract shall, upon written request from an unsuccessful offeror, provide a brief explanation as to why such offeror was unsuccessful that includes a summary of the rationale for the award and an evaluation of the significant weak or deficient factors in the offeror's offer."
In this chapter:
(1)
(2)
(3)
(4)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3784; Pub. L. 115–232, div. A, title VIII, §836(b)(17), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4301(1) | 41:256(m)(1). | June 30, 1949, ch. 288, title III, §306(m), as added Pub. L. 105–85, title VIII, §808(b)(2), Nov. 18, 1997, 111 Stat. 1836; Pub. L. 105–261, title VIII, §804(b), Oct. 17, 1998, 112 Stat. 2083. |
| 4301(2) | 41:256(l)(1). | June 30, 1949, ch. 288, title III, §306(l)(1), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3315. |
| 4301(3) | 41:256(m)(3). | |
| 4301(4) | 41:256(m)(2). |
2018—Par. (2). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
Effective on October 1 of each year that is divisible by 5, the amount set forth in section 4301(2) of this title shall be adjusted to the equivalent amount in constant fiscal year 1994 dollars. An adjusted amount that is not evenly divisible by $50,000 shall be rounded to the nearest multiple of $50,000. If an amount is evenly divisible by $25,000 but is not evenly divisible by $50,000, the amount shall be rounded to the next higher multiple of $50,000.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3784.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4302 | 41:256(l)(2). | June 30, 1949, ch. 288, title III, §306(l)(2), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3315. |
(a)
(b)
(1)
(A) the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus
(B) interest (to be computed based on provisions in the Federal Acquisition Regulation) to compensate the Federal Government for the use of the amount which a contractor has been paid in excess of the amount to which the contractor was entitled.
(2)
(c)
(1) the contractor withdraws the proposal before the formal initiation of an audit of the proposal by the Federal Government and resubmits a revised proposal;
(2) the amount of unallowable costs subject to the penalty is insignificant; or
(3) the contractor demonstrates, to the contracting officer's satisfaction, that—
(A) it has established appropriate policies and personnel training and an internal control and review system that provide assurances that unallowable costs subject to penalties are precluded from being included in the contractor's proposal for settlement of indirect costs; and
(B) the unallowable costs subject to the penalty were inadvertently incorporated into the proposal.
(d)
(1) shall be considered a final decision for the purposes of section 7103 of this title; and
(2) is appealable in the manner provided in section 7104(a) of this title.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3784.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4303(a) | 41:256(a). | June 30, 1949, ch. 288, title III, §306(a)–(d), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3309. |
| 4303(b) | 41:256(b). | |
| 4303(c) | 41:256(c). | |
| 4303(d) | 41:256(d). |
In subsection (a), the words "(referred to in section 421(c)(1) of this title)" are omitted as unnecessary.
(a)
(1) Costs of entertainment, including amusement, diversion, and social activities, and any costs directly associated with those costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities).
(2) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress, a State legislature, or a legislative body of a political subdivision of a State.
(3) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the Federal Government where the contractor is found liable or had pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of a false certification).
(4) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance those payments in accordance with applicable provisions of the Federal Acquisition Regulation.
(5) Costs of membership in any social, dining, or country club or organization.
(6) Costs of alcoholic beverages.
(7) Contributions or donations, regardless of the recipient.
(8) Costs of advertising designed to promote the contractor or its products.
(9) Costs of promotional items and memorabilia, including models, gifts, and souvenirs.
(10) Costs for travel by commercial aircraft that exceed the amount of the standard commercial fare.
(11) Costs incurred in making any payment (commonly known as a "golden parachute payment") that is—
(A) in an amount in excess of the normal severance pay paid by the contractor to an employee on termination of employment; and
(B) paid to the employee contingent on, and following, a change in management control over, or ownership of, the contractor or a substantial portion of the contractor's assets.
(12) Costs of commercial insurance that protects against the costs of the contractor for correction of the contractor's own defects in materials or workmanship.
(13) Costs of severance pay paid by the contractor to foreign nationals employed by the contractor under a service contract performed outside the United States, to the extent that the amount of severance pay paid in any case exceeds the amount paid in the industry involved under the customary or prevailing practice for firms in that industry providing similar services in the United States, as determined under the Federal Acquisition Regulation.
(14) Costs of severance pay paid by the contractor to a foreign national employed by the contractor under a service contract performed in a foreign country if the termination of the employment of the foreign national is the result of the closing of, or the curtailment of activities at, a Federal Government facility in that country at the request of the government of that country.
(15) Costs incurred by a contractor or subcontractor, or personal service 1 contractor in connection with any criminal, civil, or administrative proceeding commenced by the Federal Government or a State, to the extent provided in section 4310 of this title.
(16) 2 Costs of compensation of any contractor employee for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds $625,000 adjusted annually for the U.S. Bureau of Labor Statistics Employment Cost Index for total compensation for private industry workers, by occupational and industry group not seasonally adjusted, except that the executive agency may establish exceptions for positions in the science, technology, engineering, mathematics, medical, and cybersecurity fields and other fields requiring unique areas of expertise upon a determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities.
(16) 2 Costs of compensation of contractor and subcontractor employees for a fiscal year, regardless of the contract funding source, to the extent that such compensation exceeds $487,000 per year, adjusted annually to reflect the change in the Employment Cost Index for all workers, as calculated by the Bureau of Labor Statistics, except that the head of an executive agency may establish one or more narrowly targeted exceptions for scientists, engineers, or other specialists upon a determination that such exceptions are needed to ensure that the executive agency has continued access to needed skills and capabilities.
(b)
(1)
(A) the application of those provisions to that contract would adversely affect the continuation of a program, project, or activity that provides significant support services for employees of the executive agency posted outside the United States;
(B) the contractor has taken (or has established plans to take) appropriate actions within the contractor's control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals; and
(C) the payment of severance pay is necessary to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract or is necessary to comply with a collective bargaining agreement.
(2)
(A) that a waiver has been granted under paragraph (1) for the contract; or
(B) whether the executive agency will consider granting a waiver and, if the executive agency will consider granting a waiver, the criteria to be used in granting the waiver.
(3)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3785; Pub. L. 113–66, div. A, title VIII, §811(b), Dec. 26, 2013, 127 Stat. 806; Pub. L. 113–67, div. A, title VII, §702(a)(1), Dec. 26, 2013, 127 Stat. 1189; Pub. L. 114–261, §1(b)(2)(B), Dec. 14, 2016, 130 Stat. 1363.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4304 | 41:256(e). | June 30, 1949, ch. 288, title III, §306(e), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3310; Pub. L. 105–85, title VIII, §808(b)(1), Nov. 18, 1997, 111 Stat. 1836. |
2016—Subsec. (a)(15). Pub. L. 114–261 inserted "or subcontractor, or personal service contractor" after "contractor".
2013—Subsec. (a)(16). Pub. L. 113–66 and Pub. L. 113–67 amended par. (16) generally. Prior to amendment, par. (16) read as follows: "Costs of compensation of senior executives of contractors for a fiscal year, regardless of the contract funding source, to the extent that the compensation exceeds the benchmark compensation amount determined applicable for the fiscal year by the Administrator under section 1127 of this title." See Effective Date of 2013 Amendment notes below.
Pub. L. 113–67, div. A, title VII, §702(c), Dec. 26, 2013, 127 Stat. 1189, provided that: "This section [amending this section and former section 2324 of Title 10, Armed Forces, repealing section 1127 of this title, and enacting provisions set out as a note under this section] and the amendments made by this section shall apply only with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after the date of the enactment of this Act [Dec. 26, 2013]."
Pub. L. 113–66, div. A, title VIII, §811(d), Dec. 26, 2013, 127 Stat. 806, provided that: "The amendments made by this section [amending this section and former section 2324 of Title 10, Armed Forces, and repealing section 1127 of this title] shall apply with respect to costs of compensation incurred under contracts entered into on or after the date that is 180 days after the date of the enactment of this Act [Dec. 26, 2013]."
Pub. L. 113–67, div. A, title VII, §702(d), Dec. 26, 2013, 127 Stat. 1189, provided that:
"(1)
"(A) the Committee on Armed Services of the Senate;
"(B) the Committee on Armed Services of the House of Representatives;
"(C) the Committee on Homeland Security and Governmental Affairs of the Senate;
"(D) the Committee on Oversight and Government Reform [now Committee on Oversight and Reform] of the House of Representatives;
"(E) the Committee on Appropriations of the Senate; and
"(F) the Committee on Appropriations of the House of Representatives.
"(2)
"(A) the total number of contractor employees, by executive agency, in the narrowly targeted exception positions described under subsection (a) during the preceding fiscal year;
"(B) the taxpayer-funded compensation amounts received by each contractor employee in a narrowly targeted exception position during such fiscal year; and
"(C) the duties and services performed by contractor employees in the narrowly targeted exception positions during such fiscal year."
Pub. L. 103–355, title II, §2192, Oct. 13, 1994, 108 Stat. 3315, provided that:
"(a)
"(2) Not later than 90 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall amend the cost principle in the Federal Acquisition Regulation that is set out in section 31.205–14 of title 48, Code of Federal Regulations, relating to unallowability of entertainment costs—
"(A) by inserting in the cost principle a statement that costs made specifically unallowable under that cost principle are not allowable under any other cost principle; and
"(B) by striking out '(but see 31.205–1 and 31.205–13)'.
"(b)
"(1) The term 'employee' includes officers and directors of a contractor.
"(2) The term 'covered contract' has the meaning given such term in section 2324(l) of title 10, United States Code (as amended by section 2101(c) [2101(d)]), and section 306(l) of the Federal Property and Administrative Services Act of 1949 (as added by section 2151) [see 41 U.S.C. 4301(2)].
"(c)
Ex. Ord. No. 13494, Jan. 30, 2009, 74 F.R. 6101, as amended by Ex. Ord. No. 13517, §2, Oct. 30, 2009, 74 F.R. 57239, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., it is hereby ordered that:
(a) preparing and distributing materials;
(b) hiring or consulting legal counsel or consultants;
(c) holding meetings (including paying the salaries of the attendees at meetings held for this purpose); and
(d) planning or conducting activities by managers, supervisors, or union representatives during work hours.
(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Barack Obama.
1 So in original. Probably should be "services".
2 So in original. Two pars. (16) have been enacted.
(a)
(b)
(1) Air shows.
(2) Membership in civic, community, and professional organizations.
(3) Recruitment.
(4) Employee morale and welfare.
(5) Actions to influence (directly or indirectly) executive branch action on regulatory and contract matters (other than costs incurred in regard to contract proposals pursuant to solicited or unsolicited bids).
(6) Community relations.
(7) Dining facilities.
(8) Professional and consulting services, including legal services.
(9) Compensation.
(10) Selling and marketing.
(11) Travel.
(12) Public relations.
(13) Hotel and meal expenses.
(14) Expense of corporate aircraft.
(15) Company-furnished automobiles.
(16) Advertising.
(17) Conventions.
(c)
(1)
(A) adequate documentation of those costs; and
(B) the opinion of the contract auditor on the allowability of those costs.
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3787.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4305(a) | 41:256(f)(1) (1st, 2d sentences). | June 30, 1949, ch. 288, title III, §306(f), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3312. |
| 4305(b) | 41:256(f)(1) (last sentence). | |
| 4305(c) | 41:256(f)(2)–(4). |
The regulations referred to in sections 4304 and 4305(a) and (b) of this title shall require prime contractors of a covered contract, to the maximum extent practicable, to apply the provisions of those regulations to all subcontractors of the covered contract.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3788.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4306 | 41:256(g). | June 30, 1949, ch. 288, title III, §306(g), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
(a)
(b)
(1) determines that it would be in the interest of the Federal Government to waive the certification; and
(2) states in writing the reasons for the determination and makes the determination available to the public.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3788.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4307 | 41:256(h). | June 30, 1949, ch. 288, title III, §306(h), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
The submission to an executive agency of a proposal for settlement of costs for any period after those costs have been accrued that includes a cost that is expressly specified by statute or regulation as being unallowable, with the knowledge that the cost is unallowable, is subject to section 287 of title 18 and section 3729 of title 31.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3788.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4308 | 41:256(i). | June 30, 1949, ch. 288, title III, §306(i), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
In a proceeding before a board of contract appeals, the United States Court of Federal Claims, or any other Federal court in which the reasonableness of indirect costs for which a contractor seeks reimbursement from the Federal Government is in issue, the burden of proof is on the contractor to establish that those costs are reasonable.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3788.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4309 | 41:256(j). | June 30, 1949, ch. 288, title III, §306(j), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
(a)
(1)
(A) administrative and clerical expenses;
(B) the cost of legal services, including legal services performed by an employee of the contractor, subcontractor, or personal services contractor;
(C) the cost of the services of accountants and consultants retained by the contractor, subcontractor, or personal services contractor; and
(D) the pay of directors, officers, and employees of the contractor, subcontractor, or personal services contractor for time devoted by those directors, officers, and employees to the proceeding.
(2)
(3)
(b)
(1) relates to a violation of, or failure to comply with, a Federal or State statute or regulation or to any other activity described in section 4712(a)(1) of this title; and
(2) results in a disposition described in subsection (c).
(c)
(1) In a criminal proceeding, a conviction (including a conviction pursuant to a plea of nolo contendere) by reason of the violation or failure referred to in subsection (b).
(2) In a civil or administrative proceeding involving an allegation of fraud or similar misconduct, a determination of contractor, subcontractor, or personal services contractor liability on the basis of the violation or failure referred to in subsection (b).
(3) In any civil or administrative proceeding, the imposition of a monetary penalty or an order to take corrective action under section 4712 of this title by reason of the violation or failure referred to in subsection (b).
(4) A final decision to do any of the following, by reason of the violation or failure referred to in subsection (b):
(A) Debar or suspend the contractor, subcontractor, or personal services contractor.
(B) Rescind or void the contract, subcontract, or personal services contract.
(C) Terminate the contract, subcontract, or personal services contract for default.
(5) A disposition of the proceeding by consent or compromise if the disposition could have resulted in a disposition described in paragraph (1), (2), (3), or (4).
(d)
(e)
(1) a specific term or condition of the contract, subcontract, or personal services contract; or
(2) specific written instructions of the executive agency.
(f)
(1)
(2)
(A)
(B)
(3)
(A) the proceeding involves the same contractor, subcontractor, or personal services contractor misconduct alleged as the basis of another criminal, civil, or administrative proceeding; and
(B) the costs of the other proceeding are not allowable under subsection (b).
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3789; Pub. L. 112–239, div. A, title VIII, §828(d), Jan. 2, 2013, 126 Stat. 1841; Pub. L. 114–261, §1(b)(2)(A), Dec. 14, 2016, 130 Stat. 1362.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4310(a) | 41:256(k)(6). | June 30, 1949, ch. 288, title III, §306(k), as added Pub. L. 100–700, §8(a)(1), Nov. 19, 1988, 102 Stat. 4634; Pub. L. 103–355, title II, §2151, Oct. 13, 1994, 108 Stat. 3313. |
| 4310(b) | 41:256(k)(1). | |
| 4310(c) | 41:256(k)(2). | |
| 4310(d) | 41:256(k)(3). | |
| 4310(e) | 41:256(k)(4). | |
| 4310(f) | 41:256(k)(5). |
2016—Pub. L. 114–261, §1(b)(2)(A)(i), (ii), inserted ", subcontractor, or personal services contractor" after "contractor" and ", subcontract, or personal services contract" after "contract" wherever appearing.
Subsec. (b)(1). Pub. L. 114–261, §1(b)(2)(A)(iii), inserted "or to any other activity described in section 4712(a)(1) of this title" after "statute or regulation".
2013—Subsec. (b). Pub. L. 112–239, §828(d)(1), substituted "commenced by the Federal Government, by a State, or by a contractor or grantee employee submitting a complaint under section 4712 of this title" for "commenced by the Federal Government or a State".
Subsec. (c)(3). Pub. L. 112–239, §828(d)(2), substituted "the imposition of a monetary penalty or an order to take corrective action under section 4712 of this title" for "the imposition of a monetary penalty".
2018—Pub. L. 115–232, div. A, title VIII, §836(b)(18)(B)(ii), Aug. 13, 2018, 132 Stat. 1864, substituted "Payments for commercial products and commercial services" for "Payments for commercial items" in item 4505.
An executive agency may—
(1) make advance, partial, progress or other payments under contracts for property or services made by the agency; and
(2) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3790.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4501 | 41:255(a). | June 30, 1949, ch. 288, title III, §305(a), 63 Stat. 396; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, §2051(a)(2), (c), Oct. 13, 1994, 108 Stat. 3304. |
Pub. L. 103–355, title II, §2051(f), Oct. 13, 1994, 108 Stat. 3306, provided that: "The amendments made by this section [see Tables for classification] are not intended to impair or modify procedures required by the provisions of chapter 39 of title 31, United States Code, and the regulations issued pursuant to such provisions of law (as such procedures are in effect on the date of the enactment of this Act [Oct. 13, 1994]), except that the Government may accept payment terms offered by a contractor offering a commercial item."
(a)
(1) Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls.
(2) Accomplishment of events defined in the program management plan.
(3) Other quantifiable measures of results.
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3791.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4502(a) | 41:255(b). | June 30, 1949, ch. 288, title III, §305(b), as added Pub. L. 103–355, title II, §2051(b), Oct. 13, 1994, 108 Stat. 3304. |
| 4502(b) | 41:255(c). | June 30, 1949, ch. 288, title III, §305(c), 63 Stat. 396; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, §2051(a)(3), (5), Oct. 13, 1994, 108 Stat. 3304. |
Advance payments under section 4501 of this title may be made only on adequate security and a determination by the agency head that to do so would be in the public interest. The security may be in the form of a lien in favor of the Federal Government on the property contracted for, on the balance in an account in which the payments are deposited, and on such of the property acquired for performance of the contract as the parties may agree. This lien shall be paramount to all other liens and is effective immediately upon the first advancement of funds without filing, notice, or any other action by the Federal Government.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3791.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4503 | 41:255(d). | June 30, 1949, ch. 288, title III, §305(d), 63 Stat. 396; July 12, 1952, ch. 703, §1(m), 66 Stat. 594; Pub. L. 85–800, §4, Aug. 28, 1958, 72 Stat. 966; Pub. L. 103–355, title II, §2051(a)(4), (5), (d), Oct. 13, 1994, 108 Stat. 3304. |
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3791.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4504 | 41:255(e). | June 30, 1949, ch. 288, title III, §305(e), as added Pub. L. 103–355, title II, §2051(e), Oct. 13, 1994, 108 Stat. 3304, as amended Pub. L. 104–106, title XLIII, §4321(a)(4), Feb. 10, 1996, 110 Stat. 671. |
(a)
(b)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3791; Pub. L. 115–232, div. A, title VIII, §836(b)(18)(A), (B)(i), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4505 | 41:255(f). | June 30, 1949, ch. 288, title III, §305(f), as added Pub. L. 103–355, title II, §2051(e), Oct. 13, 1994, 108 Stat. 3304, as amended Pub. L. 104–106, title XLIII, §4321(a)(4), Feb. 10, 1996, 110 Stat. 671. |
2018—Pub. L. 115–232, §836(b)(18)(B)(i), substituted "Payments for commercial products and commercial services" for "Payments for commercial items" in section catchline.
Subsecs. (a), (c). Pub. L. 115–232, §836(b)(18)(A), substituted "commercial products or commercial services" for "commercial items".
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) review the determination of fraud on which the reduction or suspension is based; and
(2) transmit a recommendation to the head of the executive agency whether the suspension or reduction should continue.
(h)
(i)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3792.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4506 | 41:255(g). | June 30, 1949, ch. 288, title III, §305(g), as added Pub. L. 103–355, title II, §2051(e), Oct. 13, 1994, 108 Stat. 3305, as amended Pub. L. 104–106, title XLIII, §4321(a)(4), Feb. 10, 1996, 110 Stat. 671. |
2019—Pub. L. 116–92, div. A, title XI, §1123(a)(2), Dec. 20, 2019, 133 Stat. 1612, added item 4714.
2018—Pub. L. 115–390, title II, §203(b), Dec. 21, 2018, 132 Stat. 5192, added item 4713.
2016—Pub. L. 114–261, §1(a)(3)(B), Dec. 14, 2016, 130 Stat. 1362, added item 4712 and struck out former item 4712 "Pilot program for enhancement of contractor protection from reprisal for disclosure of certain information".
2013—Pub. L. 112–239, div. A, title VIII, §828(a)(2), Jan. 2, 2013, 126 Stat. 1840, added item 4712.
(a)
(1)
(2)
(3)
(b)
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3793.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4701 | 41:257. | June 30, 1949, ch. 288, title III, §307, 63 Stat. 396; Pub. L. 85–800, §5, Aug. 28, 1958, 72 Stat. 967; Pub. L. 89–343, §§3, 4, Nov. 8, 1965, 79 Stat. 1303; Pub. L. 98–369, title VII, §2714(a)(4), July 18, 1984, 98 Stat. 1184; Pub. L. 104–106, title XLIII, §4321(e)(6), Feb. 10, 1996, 110 Stat. 675; Pub. L. 104–316, title I, §121(c), Oct. 19, 1996, 110 Stat. 3836. |
| 41:262. | June 30, 1949, ch. 288, title III, §312, as added Pub. L. 103–355, title I, §1553, Oct. 13, 1994, 108 Stat. 3300. |
(a)
(b)
(c)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3794.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4702(a) | 41:253b(m)(3). | June 30, 1949, ch. 288, title III, §303B(m), as added Pub. L. 104–201, title VIII, §821(b), Sept. 23, 1996, 110 Stat. 2609. |
| 4702(b) | 41:253b(m)(1). | |
| 4702(c) | 41:253b(m)(2). |
In subsection (b), the words "Except as provided in paragraph (2)" are omitted as unnecessary.
(a)
(1) a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction the contractor or subcontractor asserts on the right of the Federal Government to use the data; and
(2) the contracting officer may review the validity of a restriction the contractor or subcontractor asserts under the contract on the right of the Federal Government to use technical data furnished to the Federal Government under the contract if the contracting officer determines that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the Federal Government would make it impracticable to procure the item competitively at a later time.
(b)
(1) the grounds for challenging the asserted restriction; and
(2) the requirement for a response within 60 days justifying the current validity of the asserted restriction.
(c)
(d)
(e)
(1)
(2)
(f)
(g)
(1)
(A) the restriction is cancelled; and
(B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor, as appropriate, is liable to the Federal Government for payment of the cost to the Federal Government of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the Federal Government in challenging the asserted restriction, unless special circumstances would make the payment unjust.
(2)
(A) continues to be bound by the restriction; and
(B) is liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28) incurred by the party asserting the restriction in defending the asserted restriction if the challenge by the Federal Government is found not to be made in good faith.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3794.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4703(a) | 41:253d(a). | June 30, 1949, ch. 288, title III, §303D, formerly §303E, as added Pub. L. 98–577, title II, §203(a), Oct. 30, 1984, 98 Stat. 3071; renumbered §303D, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
| 4703(b) | 41:253d(b). | |
| 4703(c) | 41:253d(c) (1st sentence). | |
| 4703(d) | 41:253d(c) (last sentence). | |
| 4703(e) | 41:253d(d). | |
| 4703(f) | 41:253d(e). | |
| 4703(g) | 41:253d(f). |
(a)
(1) enter into an agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the Federal Government of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or
(2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales described in paragraph (1) to the Federal Government.
(b)
(c)
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3795; Pub. L. 115–232, div. A, title VIII, §836(b)(19), Aug. 13, 2018, 132 Stat. 1864.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4704(a) | 41:253g(a). | June 30, 1949, ch. 288, title III, §303G(a), (b), formerly §303H, as added Pub. L. 98–577, title II, §206(a), Oct. 30, 1984, 98 Stat. 3073; renumbered §303G, Pub. L. 99–145, title XIII, §1304(c)(4)(A), Nov. 8, 1985, 99 Stat. 742. |
| 4704(b) | 41:253g(b). | |
| 4704(c) | 41:253g(c). | June 30, 1949, ch. 288, title III, §303G(c), as added Pub. L. 103–355, title IV, §4103(b), Oct. 13, 1994, 108 Stat. 3341. |
| 4704(d) | 41:253g(d). | June 30, 1949, ch. 288, title III, §303G(d), as added Pub. L. 103–355, title VIII, §8204(a), Oct. 13, 1994, 108 Stat. 3396. |
2018—Subsec. (d). Pub. L. 115–232 substituted "commercial products or commercial services" for "commercial items" in two places.
Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amendment; Savings Provision note under section 453b of Title 6, Domestic Security.
(a)
(1)
(2)
(3)
(b)
(c)
(d)
(1)
(A)
(B)
(C)
(2)
(3)
(e)
(1) authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (b); or
(2) modify or derogate from a right or remedy otherwise available to the employee.
(f)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3796; Pub. L. 112–239, div. A, title VIII, §828(c), Jan. 2, 2013, 126 Stat. 1841; Pub. L. 117–286, §4(b)(72), Dec. 27, 2022, 136 Stat. 4351.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4705(a) | 41:265(e). | June 30, 1949, ch. 288, title III, §315, as added Pub. L. 103–355, title VI, §6006, Oct. 13, 1994, 108 Stat. 3365; Pub. L. 104–106, title XLIII, §4321(e)(8), Feb. 10, 1996, 110 Stat. 675. |
| 4705(b) | 41:265(a). | |
| 4705(c) | 41:265(b). | |
| 4705(d) | 41:265(c). | |
| 4705(e) | 41:265(d). |
In subsection (d)(2), the word "contractor" is substituted for "person" for clarity and for consistency with subsection (d)(1).
Section 4712 of this title, referred to in subsec. (f), formerly referred to a pilot program in the section catchline and contained a subsec. (i) which provided that section 4712 would be in effect for a specified four-year period. The section catchline was amended and subsec. (i) was struck out by Pub. L. 114–261, §1(a)(3)(A), Dec. 14, 2016, 130 Stat. 1362.
2022—Subsec. (a)(3). Pub. L. 117–286 substituted "chapter 4 of title 5." for "the Inspector General Act of 1978 (5 U.S.C. App.)."
2013—Subsec. (f). Pub. L. 112–239 added subsec. (f).
1 See References in Text note below.
(a)
(b)
(1)
(A) a contractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable contract, or any combination of those contracts, the executive agency makes under this division; and
(B) a subcontractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable subcontract, or any combination of those subcontracts, under a contract referred to in subparagraph (A).
(2)
(A) the proposal for the contract or subcontract;
(B) the discussions conducted on the proposal;
(C) pricing of the contract or subcontract; or
(D) performance of the contract or subcontract.
(c)
(1)
(2)
(3)
(4)
(d)
(1)
(2)
(A) the contractor or subcontractor is—
(i) the government of a foreign country or an agency of that government; or
(ii) precluded by the laws of the country involved from making its records available for examination; and
(B) the executive agency determines, after taking into account the price and availability of the property and services from United States sources, that the public interest would be best served by not applying paragraph (1).
(3)
(e)
(f)
(g)
(1) Contracts for utility services at rates not exceeding those established to apply uniformly to the public, plus any applicable reasonable connection charge.
(2) A contract or subcontract that is not greater than the simplified acquisition threshold.
(h)
(i)
(1)
(2)
(3)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3797; Pub. L. 117–286, §4(b)(73), Dec. 27, 2022, 136 Stat. 4351.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4706(a) | 41:254d(i). | June 30, 1949, ch. 288, title III, §304C(a)(1), (b), (g)–(i), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3318, 3320. |
| 4706(b)(1) | 41:254d(a)(1). | |
| 4706(b)(2) | 41:254d(a)(2). | June 30, 1949, ch. 288, title III, §304C(a)(2), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3318; Pub. L. 104–106, title XLIII, §4321(e)(5), Feb. 10, 1996, 110 Stat. 675. |
| 4706(c) | 41:254d(b). | |
| 4706(d) | 41:254d(c). | June 30, 1949, ch. 288, title III, §304C(c), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3319; Pub. L. 110–417, title VIII, §871(a), Oct. 14, 2008, 122 Stat.4555. |
| 4706(e) | 41:254d(d). | June 30, 1949, ch. 288, title III, §304C(d), as added Pub. L. 103–355, title II, §2251(a), Oct. 13, 1994, 108 Stat. 3319; Pub. L. 104–201, title VIII, §808(b), Sept. 23, 1996, 110 Stat. 2607. |
| 4706(f) | 41:254d(e). | |
| 4706(g) | 41:254d(f). | June 30, 1949, ch. 288, title III, §304C(f), as added and amended Pub. L. 103–355, title II, §2251(a), title IV, §4103(d), Oct. 13, 1994, 108 Stat. 3320, 3341. |
| 4706(h) | 41:254d(g). | |
| 4706(i) | 41:254d(h). |
In subsection (c)(4), the words "Committee on Oversight and Government Reform" are substituted for "Committee on Government Operations" on authority of section 1(a)(6) of Public Law 104–14 (2 U.S.C. note prec. 21), Rule X(1)(h) of the Rules of the House of Representatives, adopted by House Resolution No. 5 (106th Congress, January 6, 1999), and Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007). The words "Committee on Homeland Security and Governmental Affairs" are substituted for "Committee on Governmental Affairs" on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004).
2022—Subsec. (c)(1). Pub. L. 117–286 substituted "section 403 or 415 of title 5" for "section 3 or 8G of the Inspector General Act of 1978 (5 U.S.C. App.)".
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.
When a contract made on behalf of the Federal Government by the head of a Federal agency, or by an authorized officer of the agency, includes a provision for liquidated damages for delay, the Secretary of the Treasury on recommendation of the head of the agency may remit any part of the damages as the Secretary of the Treasury believes is just and equitable.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3799.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4707 | 41:256a. | Sept. 5, 1950, ch. 849, §10(a), 64 Stat. 591; Pub. L. 104–316, title II, §202(u), Oct. 19, 1996, 110 Stat. 3845. |
A cost-type research and development contract (including a grant) with a university, college, or other educational institution may provide for payment of reimbursable indirect costs on the basis of predetermined fixed-percentage rates applied to the total of the reimbursable direct costs incurred or to an element of the total of the reimbursable direct costs incurred.
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3799.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4708 | 41:254a. | Pub. L. 87–638, Sept. 5, 1962, 76 Stat. 437. |
The words "On and after September 5, 1962" are omitted as obsolete.
(a)
(b)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4709 | 41:252c. | June 30, 1949, ch. 288, title III, §302C, as added Pub. L. 103–355, title IX, §9003, Oct. 13, 1994, 108 Stat. 3403; Pub. L. 105–85, title VIII, §850(f)(4)(A), Nov. 18, 1997, 111 Stat. 1850. |
(a)
(b)
(1) require contractors to minimize the excessive use of subcontractors, or of tiers of subcontractors, that add no or negligible value; and
(2) ensure that neither a contractor nor a subcontractor receives indirect costs or profit on work performed by a lower-tier subcontractor to which the higher-tier contractor or subcontractor adds no or negligible value (but not to limit charges for indirect costs and profit based on the direct costs of managing lower-tier subcontracts).
(c)
(d)
(e)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4710 | 41:254b note. | Pub. L. 110–417, [div. A], title VIII, §866, Oct. 14, 2008, 122 Stat. 4551. |
In subsection (b), the words "Not later than one year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The word "shall" is substituted for the words "shall be amended" to reflect the permanence of the provision.
(a)
(b)
(c)
(1) ensure that all new contracts using award fees link the fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance);
(2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts;
(3) provide guidance on the circumstances in which contractor performance may be judged to be "excellent" or "superior" and the percentage of the available award fee which contractors should be paid for the performance;
(4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be "acceptable", "average", "expected", "good", or "satisfactory";
(5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract;
(6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods;
(7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the Federal Government;
(8) ensure that each executive agency—
(A) collects relevant data on award and incentive fees paid to contractors; and
(B) has mechanisms in place to evaluate the data on a regular basis;
(9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and
(10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials.
(d)
(Pub. L. 111–350, §3, Jan. 4, 2011, 124 Stat. 3800.)
| Revised Section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 4711 | 41:251 note. | Pub. L. 110–417, [div. A], title VIII, §867, Oct. 14, 2008, 122 Stat. 4551. |
In subsection (b), the words "Not later than 1 year after the date of the enactment of this Act" are omitted because of section 6(f) of the bill. The words "shall provide" are substituted for "shall be amended to provide" to reflect the permanence of the provision.
(a)
(1)
(2)
(A) A Member of Congress or a representative of a committee of Congress.
(B) An Inspector General.
(C) The Government Accountability Office.
(D) A Federal employee responsible for contract or grant oversight or management at the relevant agency.
(E) An authorized official of the Department of Justice or other law enforcement agency.
(F) A court or grand jury.
(G) A management official or other employee of the contractor, subcontractor, grantee, subgrantee, or personal services contractor who has the responsibility to investigate, discover, or address misconduct.
(3)
(A) an employee who initiates or provides evidence of contractor, subcontractor, grantee, subgrantee, or personal services contractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract or grant shall be deemed to have made a disclosure covered by such paragraph; and
(B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request.
(b)
(1)
(2)
(A)
(B)
(3)
(A) made with the consent of the person alleging the reprisal;
(B) made in accordance with the provisions of section 552a of title 5 or as required by any other applicable Federal law; or
(C) necessary to conduct an investigation of the alleged reprisal.
(4)
(c)
(1)
(A) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to take affirmative action to abate the reprisal.
(B) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken.
(C) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys' fees and expert witnesses' fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive agency.
(D) Consider disciplinary or corrective action against any official of the executive agency, if appropriate.
(2)
(3)
(4)
(5)
(6)
(7)
(d)
(e)
(f)
(2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor of an element of the intelligence community if such disclosure—
(A) relates to an activity of an element of the intelligence community; or
(B) was discovered during contract, subcontract, grantee, subgrantee, or personal services contractor services provided to an element of the intelligence community.
(g)
(1) The term "abuse of authority" means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract or grant of such agency.
(2) The term "Inspector General" means an Inspector General appointed under chapter 4 of title 5 and any Inspector General that receives funding from, or has oversight over contracts or grants awarded for or on behalf of, the executive agency concerned.
(h)
(Added Pub. L. 112–239, div. A, title VIII, §828(a)(1), Jan. 2, 2013, 126 Stat. 1837; amended Pub. L. 113–66, div. A, title X, §1091(e), Dec. 26, 2013, 127 Stat. 876; Pub. L. 114–261, §1(a)(2), (3)(A), Dec. 14, 2016, 130 Stat. 1362; Pub. L. 116–260, div. U, title VIII, §801, Dec. 27, 2020, 134 Stat. 2297; Pub. L. 117–263, div. A, title VIII, §807(b), Dec. 23, 2022, 136 Stat. 2704; Pub. L. 117–286, §4(b)(74), Dec. 27, 2022, 136 Stat. 4351.)
2022—Subsec. (a)(1). Pub. L. 117–263, §807(b)(1)(A), substituted "subgrantee," for "or subgrantee".
Subsec. (a)(2). Pub. L. 117–263, §807(b)(1)(B), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (a)(3). Pub. L. 117–263, §807(b)(1)(C), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (b)(1). Pub. L. 117–263, §807(b)(2), substituted "subgrantee, or personal services contractor concerned" for "or subgrantee concerned".
Subsec. (c)(1). Pub. L. 117–263, §807(b)(3)(A)(i), substituted "subgrantee, or personal services contractor concerned" for "or subgrantee concerned" in introductory provisions.
Subsec. (c)(1)(A). Pub. L. 117–263, §807(b)(3)(A)(ii), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (c)(1)(B). Pub. L. 117–263, §807(b)(3)(A)(iii), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (c)(1)(C). Pub. L. 117–263, §807(b)(3)(A)(iv), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (c)(1)(D). Pub. L. 117–263, §807(b)(3)(A)(v), added subpar. (D).
Subsec. (c)(2). Pub. L. 117–263, §807(b)(3)(B), substituted "subgrantee, or personal services contractor" for "or subgrantee".
Subsec. (d). Pub. L. 117–263, §807(b)(4), substituted "subgrantees, and personal services contractors" for "and subgrantees".
Subsec. (f)(2). Pub. L. 117–263, §807(b)(5), substituted "subgrantee, or personal services contractor" for "or subgrantee" in two places.
Subsec. (g)(2). Pub. L. 117–286 substituted "chapter 4 of title 5" for "the Inspector General Act of 1978".
2020—Subsec. (a)(2)(G). Pub. L. 116–260, §801(1), substituted "grantee, or subgrantee" for "or grantee".
Subsec. (a)(3)(A). Pub. L. 116–260, §801(2), substituted "contractor, subcontractor, grantee, or subgrantee" for "contractor, subcontractor, or grantee".
Subsec. (b)(1). Pub. L. 116–260, §801(3), substituted "contractor, subcontractor, grantee, or subgrantee" for "contractor or grantee".
Subsec. (c). Pub. L. 116–260, §801(4), substituted "contractor, subcontractor, grantee, or subgrantee" for "contractor or grantee" wherever appearing.
Subsec. (d). Pub. L. 116–260, §801(5), substituted "grantees, and subgrantees" for "and grantees".
Subsec. (f). Pub. L. 116–260, §801(6), substituted "grantee, or subgrantee" for "or grantee" in two places.
2016—Pub. L. 114–261, §1(a)(3)(A)(i), substituted "Enhancement" for "Pilot program for enhancement" in section catchline.
Subsec. (a)(1). Pub. L. 114–261, §1(a)(2), substituted "grantee, or subgrantee or personal services contractor" for "or grantee".
Subsec. (i). Pub. L. 114–261, §1(a)(3)(A)(ii), struck out subsec. (i). Text read as follows: "This section shall be in effect for the four-year period beginning on the date of that is 180 days after the date the enactment of this section."
2013—Subsec. (i). Pub. L. 113–66 inserted "that is 180 days after the date" before "the enactment".
Pub. L. 112–239, div. A, title VIII, §828(b), Jan. 2, 2013, 126 Stat. 1840, provided that:
"(1)
"(A) all contracts and grants awarded on or after such date;
"(B) all task orders entered on or after such date pursuant to contracts awarded before, on, or after such date; and
"(C) all contracts awarded before such date that are modified to include a contract clause providing for the applicability of such amendments.
"(2)
"(3)
(a)
(b)
(1) obtaining a joint recommendation, in unclassified or classified form, from the chief acquisition officer and the chief information officer of the agency, or officials performing similar functions in the case of executive agencies that do not have such officials, which includes a review of any risk assessment made available by the executive agency identified under section 1323(a)(3) of this title, that there is a significant supply chain risk in a covered procurement;
(2) providing notice of the joint recommendation described in paragraph (1) to any source named in the joint recommendation advising—
(A) that a recommendation is being considered or has been obtained;
(B) to the extent consistent with the national security and law enforcement interests, of information that forms the basis for the recommendation;
(C) that, within 30 days after receipt of the notice, the source may submit information and argument in opposition to the recommendation; and
(D) of the procedures governing the consideration of the submission and the possible exercise of the authority provided in subsection (a);
(3) making a determination in writing, in unclassified or classified form, after considering any information submitted by a source under paragraph (2) and in consultation with the chief information security officer of the agency, that—
(A) use of the authority under subsection (a) is necessary to protect national security by reducing supply chain risk;
(B) less intrusive measures are not reasonably available to reduce such supply chain risk; and
(C) the use of such authorities will apply to a single covered procurement or a class of covered procurements, and otherwise specifies the scope of the determination; and
(4) providing a classified or unclassified notice of the determination made under paragraph (3) to the appropriate congressional committees and leadership that includes—
(A) the joint recommendation described in paragraph (1);
(B) a summary of any risk assessment reviewed in support of the joint recommendation required by paragraph (1); and
(C) a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk.
(c)
(1) may, to the extent necessary to address such national security interest, and subject to the conditions in paragraph (2)—
(A) temporarily delay the notice required by subsection (b)(2);
(B) make the determination required by subsection (b)(3), regardless of whether the notice required by subsection (b)(2) has been provided or whether the notified source has submitted any information in response to such notice;
(C) temporarily delay the notice required by subsection (b)(4); and
(D) exercise the authority provided in subsection (a) in accordance with such determination within 60 calendar days after the day the determination is made; and
(2) shall take actions necessary to comply with all requirements of subsection (b) as soon as practicable after addressing the urgent national security interest, including—
(A) providing the notice required by subsection (b)(2);
(B) promptly considering any information submitted by the source in response to such notice, and making any appropriate modifications to the determination based on such information;
(C) providing the notice required by subsection (b)(4), including a description of the urgent national security interest, and any modifications to the determination made in accordance with subparagraph (B); and
(D) providing notice to the appropriate congressional committees and leadership within 7 calendar days of the covered procurement actions taken under this section.
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(1)
(A) the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Select Committee on Intelligence, and the majority and minority leader of the Senate; and
(B) the Committee on Oversight and Government Reform, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Homeland Security, the Committee on Armed Services, the Committee on Energy and Commerce, the Permanent Select Committee on Intelligence, and the Speaker and minority leader of the House of Representatives.
(2)
(A) information technology, as defined in section 11101 of title 40, including cloud computing services of all types;
(B) telecommunications equipment or telecommunications service, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
(C) the processing of information on a Federal or non-Federal information system, subject to the requirements of the Controlled Unclassified Information program; or
(D) hardware, systems, devices, software, or services that include embedded or incidental information technology.
(3)
(A) a source selection for a covered article involving either a performance specification, as provided in subsection (a)(3)(B) of section 3306 of this title, or an evaluation factor, as provided in subsection (b)(1)(A) of such section, relating to a supply chain risk, or where supply chain risk considerations are included in the agency's determination of whether a source is a responsible source as defined in section 113 of this title;
(B) the consideration of proposals for and issuance of a task or delivery order for a covered article, as provided in section 4106(d)(3) of this title, where the task or delivery order contract includes a contract clause establishing a requirement relating to a supply chain risk;
(C) any contract action involving a contract for a covered article where the contract includes a clause establishing requirements relating to a supply chain risk; or
(D) any other procurement in a category of procurements determined appropriate by the Federal Acquisition Regulatory Council, with the advice of the Federal Acquisition Security Council.
(4)
(A) The exclusion of a source that fails to meet qualification requirements established under section 3311 of this title for the purpose of reducing supply chain risk in the acquisition or use of covered articles.
(B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order.
(C) The determination that a source is not a responsible source as defined in section 113 of this title based on considerations of supply chain risk.
(D) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor to exclude a particular source from consideration for a subcontract under the contract.
(5)
(A) information technology, as defined in section 11101 of title 40;
(B) information systems, as defined in section 3502 of title 44; and
(C) telecommunications equipment and telecommunications services, as those terms are defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153).
(6)
(7)
(Added Pub. L. 115–390, title II, §203(a), Dec. 21, 2018, 132 Stat. 5189; amended Pub. L. 117–263, div. E, title LIX, §5949(k)(2), Dec. 23, 2022, 136 Stat. 3492.)
Section 3101(c)(1), referred to in subsec. (k)(7), probably means section 3101(c)(1) of this title, which excepts the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration from applicability of the Procurement procedures and regulations of the Administrator of General Services.
2022—Subsec. (j). Pub. L. 117–263 substituted "December 31, 2033" for "the date that is 5 years after the date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018".
Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019.
Pub. L. 115–390, title II, §203(c), Dec. 21, 2018, 132 Stat. 5192, provided that: "The amendments made by this section [enacting this section] shall take effect on the date that is 90 days after the date of the enactment of this Act [Dec. 21, 2018] and shall apply to contracts that are awarded before, on, or after that date."
Title II of Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as a note under section 1321 of this title.
Pub. L. 117–263, div. E, title LIX, §5949, Dec. 23, 2022, 136 Stat. 3485, provided that:
"(a)
"(1)
"(A) procure or obtain, or extend or renew a contract to procure or obtain, any electronic parts, products, or services that include covered semiconductor products or services; or
"(B) enter into a contract (or extend or renew a contract) with an entity to procure or obtain electronic parts or products that use any electronic parts or products that include covered semiconductor products or services.
"(2)
"(A)
"(i) to require any covered semiconductor products or services resident in equipment, systems, or services as of the day before the applicable effective date specified in subsection (c) to be removed or replaced;
"(ii) to prohibit or limit the utilization of such covered semiconductor products or services throughout the lifecycle of such existing equipment;
"(iii) to require the recipient of a Federal contract, grant, loan, or loan guarantee to replace covered semiconductor products or services resident in equipment, systems, or services before the effective date specified in subsection (c); or
"(iv) to require the Federal Communications Commission to designate covered semiconductor products or services to its Covered Communications Equipment or Services List maintained under section 2 of the Secured and Trusted Communications Networks Act of 2019 (47 U.S.C. 1603) [probably should be "(47 U.S.C. 1601)"].
"(B)
"(b)
"(1)
"(2)
"(3)
"(4)
"(5)
"(6)
"(A) the head of the agency, in consultation with the Secretary of Commerce, determines that no compliant product or service is available to be procured as, and when, needed at United States market prices or a price that is not considered prohibitively expensive; and
"(B) the head of the agency, in consultation with the Secretary of Defense or the Director of National Intelligence, determines that such waiver could not reasonably be expected to compromise the critical national security interests of the United States.
"(7)
"(c)
"(1)
"(2)
"(d)
"(1) the implementation of the prohibitions under subsection (a), including any challenges in the implementation; and
"(2) the effectiveness and utility of the waiver authority under subsection (b).
"(e)
"(1) conduct an analysis of semiconductor design and production capacity domestically and by allied or partner countries required to meet the needs of the Federal Government, including analyses regarding—
"(A) semiconductors critical to national security, as determined by the Secretary of Commerce, in consultation with the Secretary of Defense and the Director of National Intelligence, in accordance with section 9902(a)(6)(A)(i) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [15 U.S.C. 4652(a)(6)(A)(i)]; and
"(B) semiconductors classified as legacy semiconductors pursuant to section 9902(a)(6)(A)(i) of William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283);
"(2) assess the risk posed by the presence of covered semiconductor products or services in Federal systems;
"(3) assess the risk posed by the presence of covered semiconductor products or services in the supply chains of Federal contractors and subcontractors, including for non-Federal systems;
"(4) develop a strategy to—
"(A) improve the availability of domestic semiconductor design and production capacity required to meet the requirements of the Federal Government;
"(B) support semiconductor product and service suppliers seeking to contract with domestic, allied, or partner semiconductor producers and to improve supply chain traceability, including to meet the prohibitions under subsection (a); and
"(C) either certify the feasibility of implementing such prohibitions or exercising waiver authorities under subsection (b), to ensure uninterrupted Federal Government access to required semiconductor products and services; and
"(5) provide the results of the analysis, assessment, and strategy developed under paragraphs (1) through (4) to the Federal Acquisition Security Council.
"(f)
"(1)
"(2)
"(A) Sharing best practices, refining microelectronics standards, such as those established pursuant to section 224 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92) [10 U.S.C. 4501 note prec.], and developing recommendations to identify and mitigate, through diversification efforts, microelectronics supply chain concerns.
"(B) Developing an assessment framework to inform Federal decisions on sourcing microelectronics, considering—
"(i) chain of custody and traceability, including origin and location of design, manufacturing, distribution, shipping, and quantities;
"(ii) confidentiality, including protection, verification, and validation of intellectual property included in microelectronics;
"(iii) integrity, including—
"(I) security weaknesses and vulnerabilities that include potential supply chain attacks;
"(II) risk analysis and consequence to system;
"(III) risk of intentional or unintentional modification or tampering; and
"(IV) risk of insider threats, including integrity of people and processes involved in the design and manufacturing of microelectronics; and
"(iv) availability, including—
"(I) potential supply chain disruptions, including due to natural disasters or geopolitical events;
"(II) prioritization of parts designed and manufactured in the United States and in allied or partner countries to support and sustain the defense and technology industrial base;
"(III) risk associated with sourcing parts from suppliers outside of the United States and allied and partner countries, including long-term impacts on availability of microelectronics produced domestically or in allied or partner countries; and
"(IV) obsolescence management and counterfeit avoidance and detection.
"(C) Developing a process for provenance and traceability from design to disposal of microelectronics components and intellectual property contained therein implementable across the Federal acquisition system to improve reporting, data analysis, and tracking.
"(D) Developing and implementing policies and plans to support the following:
"(i) Development of domestic design and manufacturing capabilities to replace covered semiconductor products or services.
"(ii) Utilization of the assessment framework developed under subparagraph (B).
"(iii) Implementation of the strategy required under subsection (e)(4) as applicable.
"(iv) Identification of and integration with existing information reporting and data visualization systems in the Federal Government, including modification to such systems to track the information.
"(v) A requirement to document microelectronics used in systems and subsystems, including origin and location of design and manufacturing, technologies used, and quantities procured.
"(vi) Elimination from Federal Government supply chains of microelectronics from entities included on the Consolidated Screening List maintained by the International Trade Administration of the Department of Commerce.
"(3)
"(A) The National Science and Technology Council Subcommittee on Microelectronics Leadership.
"(B) The Department of Commerce semiconductor industrial advisory committee established under subsection 9906(b) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116–283) [15 U.S.C. 4656(b)].
"(C) The White House Coordinator for CHIPS Implementation.
"(D) The Federal Acquisition Security Council (FASC).
"(E) The Government-Industry Working Group on Microelectronics.
"(F) The Joint Defense Manufacturing Technology Panel (JDMTP).
"(G) Standards development organizations.
"(g)
"(1) issue recommendations to mitigate supply chain risks relevant to Federal Government acquisition of semiconductor products and services, considering—
"(A) the analysis, assessment, and strategy developed under subsection (e) and any related updates;
"(B) the standards provided under section 224 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92) [10 U.S.C. 4501 note prec.], including any tiers of trust, levels of security, or risk-based approaches established under such section;
"(C) the extent to which such recommendations would enhance the security of critical systems;
"(D) the extent to which such recommendations would impact Federal access to commercial technologies; and
"(E) any risks to the Federal Government from contracting with microelectronics suppliers that include covered semiconductor products or services in non-Federal supply chains; and
"(2) make recommendations to the Federal Acquisition Regulatory Council and the heads of executive agencies for any needed regulations to mitigate supply chain risks.
"(h)
"(1) provide that contractors who supply a Federal agency with electronic parts or products are responsible for—
"(A) certifying to the non-use of covered semiconductor products or services in such parts or products;
"(B) detecting and avoiding the use or inclusion of such covered semiconductor products or services in such parts or products; and
"(C) any rework or corrective action that may be required to remedy the use or inclusion of such covered semiconductor products or services in such parts or products;
"(2) require covered entities to disclose to direct customers the inclusion of a covered semiconductor product or service in electronic parts, products, or services included in electronic parts, products, or services subject to the contracting prohibition under subsection (a) as to whether such supplied parts, products, or services include covered semiconductors products or services;
"(3) provide that a covered entity that fails to disclose the inclusion to direct customers of a covered semiconductor product or service in electronic parts, products, or services procured or obtained by an executive agency in contravention of subsection (a) shall be responsible for any rework or corrective action that may be required to remedy the use or inclusion of such covered semiconductor product or service;
"(4) provide that the costs of covered semiconductor products or services, suspect semiconductor products, and any rework or corrective action that may be required to remedy the use or inclusion of such products are not allowable costs for Federal contracts;
"(5) provide that—
"(A) any covered entity or Federal contractor or subcontractor who becomes aware, or has reason to suspect, that any end item, component, or part of a critical system purchased by the Federal Government, or purchased by a Federal contractor or subcontractor for delivery to the Federal Government for any critical system, that contains covered semiconductor products or services shall notify appropriate Federal authorities in writing within 60 days; and
"(B) the Federal authorities shall report such information to the appropriate committees of Congress and leadership within 120 days;
"(6) provide that Federal bidders and contractors—
"(A) may reasonably rely on the certifications of compliance from covered entities and subcontractors who supply electronic parts, products, or services when providing proposals to the Federal Government; and
"(B) are not required to conduct independent third party audits or other formal reviews related to such certifications;
"(7) provide that a Federal contractor or subcontractor that provides a notification under paragraph (5) that does not regard electronic parts or products manufactured or assembled by such Federal contractor or subcontractor shall not be subject to civil liability nor determined to not be a presently responsible contractor on the basis of such notification; and
"(8) provide that a Federal contractor or subcontractor that provides a notification under paragraph (5) that regards electronic parts or products manufactured or assembled by such Federal contractor or subcontractor shall not be subject to civil liability nor determined to not be a presently responsible contractor on the basis of such notification if the Federal contractor or subcontractor makes a comprehensive and documentable effort to identify and remove covered semiconductor products or services from the Federal supply.
"(i)
"(1)
"(A) a report of the findings and recommendations of the analyses, assessment, and strategy developed under such subsection; and
"(B) a report on development of the microelectronics traceability and diversification initiative under subsection (f)(1).
"(2)
"(A) the development of recommendations under subsection (g), including the considerations described in paragraph (1) of such subsection; and
"(B) as applicable, the impact of any recommendations or regulations implemented.
"(j)
"(1)
"(A) the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Committee on Homeland Security and Governmental Affairs, the Committee on Energy and Natural Resources, the Committee on Foreign Relations, the Committee on Banking, Housing, and Urban Affairs, the Select Committee on Intelligence, and the majority and minority leaders of the Senate; and
"(B) the Committee on Armed Services, the Committee on Energy and Commerce, the Committee on Science, Space, and Technology, the Committee on Oversight and Reform, the Committee on Foreign Affairs, the Committee on Homeland Security, the Permanent Select Committee on Intelligence, and the Speaker, the majority leader, and the minority leader of the of the House of Representatives.
"(2)
"(A) develops, domestically or abroad, a design of a semiconductor that is the direct product of United States origin technology or software; and
"(B) purchases covered semiconductor products or services from an entity described in subparagraph (A) or (C) of paragraph (3).
"(3)
"(A) A semiconductor, a semiconductor product, a product that incorporates a semiconductor product, or a service that utilizes such a product, that is designed, produced or provided by, Semiconductor Manufacturing International Corporation (SMIC) (or any subsidiary, affiliate, or successor of such entity).
"(B) A semiconductor, a semiconductor product, a product that incorporates a semiconductor product, or a service that utilizes such a product, that is designed, produced, or provided by ChangXin Memory Technologies (CXMT) or Yangtze Memory Technologies Corp (YMTC) (or any subsidiary, affiliate, or successor of such entities).
"(C) A semiconductor, semiconductor product, or semiconductor service produced or provided by an entity that the Secretary of Defense or the Secretary of Commerce, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, determines to be an entity owned or controlled by, or otherwise connected to, the government of a foreign country of concern, provided that the determination with respect to such entity is published in the Federal Register.
"(4)
"(A) has the meaning given the term 'national security system' in section 11103(a)(1) of title 40, United States Code;
"(B) shall include additional systems identified by the Federal Acquisition Security Council;
"(C) shall include additional systems identified by the Department of Defense, consistent with guidance provided under section 224 of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92) [10 U.S.C. 4501 note prec.]; and
"(D) shall not include a system to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications).
"(5)
"(k)
"(1)
"(2)—[Amended this section.]
"(l)
"(1)
"(2)
(a)
(1)
(A) may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and
(B) shall require, as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant.
(2)
(3)
(A)
(i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or
(ii) a position that the Administrator of General Services identifies under the regulations issued under subparagraph (B).
(B)
(i)
(ii)
(I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) or other relevant Federal civil rights laws; and
(II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws.
(b)
(c)
(1)
(A) notify the contractor;
(B) provide 30 days after such notification for the contractor to appeal the determination; and
(C) issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations.
(2)
(A) providing written guidance to the contractor that the contractor's eligibility for contracts requires compliance with this section;
(B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and
(C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section.
(d)
(1)
(2)
(Added Pub. L. 116–92, div. A, title XI, §1123(a)(1), Dec. 20, 2019, 133 Stat. 1610.)
The date of enactment of the Fair Chance to Compete for Jobs Act of 2019, referred to in subsec. (a)(3)(B)(i), is the date of enactment of subtitle B (§§1121–1124) of title XI of div. A of Pub. L. 116–92, which was approved Dec. 20, 2019.
The Civil Rights Act of 1964, referred to in subsec. (a)(3)(B)(ii)(I), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241. Title VII of the Act is classified generally to subchapter VI (§2000e et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.
Pub. L. 116–92, div. A, title XI, §1123(a)(3), Dec. 20, 2019, 133 Stat. 1612, provided that: "Section 4714 of title 41, United States Code, as added by paragraph (1), shall apply with respect to contracts awarded pursuant to solicitations issued after the effective date described in section 1122(b)(2) of this subtitle [effective 2 years after Dec. 20, 2019, see section 1122(b)(2) of Pub. L. 116–92, div. A, title XI, subtitle B, set out as a note under section 9202 of Title 5, Government Organization and Employees]."