-CITE-
    10 USC CHAPTER 137 - PROCUREMENT GENERALLY                  01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
                    CHAPTER 137 - PROCUREMENT GENERALLY                

-MISC1-
    Sec.                                                     
    [2301.      Repealed.]                                            
    2302.       Definitions.                                          
    2302a.      Simplified acquisition threshold.                     
    2302b.      Implementation of simplified acquisition procedures.  
    2302c.      Implementation of electronic commerce capability.     
    2302d.      Major system: definitional threshold amounts.         
    2303.       Applicability of chapter.                             
    [2303a.     Repealed.]                                            
    2304.       Contracts: competition requirements.                  
    2304a.      Task and delivery order contracts: general authority. 
    2304b.      Task order contracts: advisory and assistance
                 services.                                            
    2304c.      Task and delivery order contracts: orders.            
    2304d.      Task and delivery order contracts: definitions.       
    2304e.      Contracts: prohibition on competition between
                 Department of Defense and small businesses and
                 certain other entities.                              
    2305.       Contracts: planning, solicitation, evaluation, and
                 award procedures.                                    
    2305a.      Design-build selection procedures.                    
    2306.       Kinds of contracts.                                   
    2306a.      Cost or pricing data: truth in negotiations.          
    2306b.      Multiyear contracts: acquisition of property.         
    2306c.      Multiyear contracts: acquisition of services.         
    2307.       Contract financing.                                   
    2308.       Buy-to-budget acquisition: end items.                 
    2309.       Allocation of appropriations.                         
    2310.       Determinations and decisions.                         
    2311.       Assignment and delegation of procurement functions and
                 responsibilities.                                    
    2312.       Remission of liquidated damages.                      
    2313.       Examination of records of contractor.                 
    2314.       Laws inapplicable to agencies named in section 2303 of
                 this title.                                          
    2315.       Law inapplicable to the procurement of automatic data
                 processing equipment and services for certain defense
                 purposes.                                            
    2316.       Disclosure of identity of contractor.                 
    [2317.      Repealed.]                                            
    2318.       Advocates for competition.                            
    2319.       Encouragement of new competitors.                     
    2320.       Rights in technical data.                             
    2321.       Validation of proprietary data restrictions.          
    [2322.      Repealed.]                                            
    2323.       Contract goal for small disadvantaged businesses and
                 certain institutions of higher education.            
    2323a.      Credit for Indian contracting in meeting certain
                 subcontracting goals for small disadvantaged
                 businesses and certain institutions of higher
                 education.                                           
    2324.       Allowable costs under defense contracts.              
    2325.       Restructuring costs.                                  
    2326.       Undefinitized contractual actions: restrictions.      
    2327.       Contracts: consideration of national security
                 objectives.                                          
    2328.       Release of technical data under Freedom of Information
                 Act: recovery of costs.                              
    [2329.      Repealed.]                                            
    2330.       Procurement of contract services: management
                 structure.                                           
    2330a.      Procurement of services: tracking of purchases.       
    2331.       Procurement of services: contracts for professional
                 and technical services.                              
    2332.       Share-in-savings contracts.                           
    2333.       Joint policies on requirements definition, contingency
                 contracting, and program management.(!1)             

                                AMENDMENTS                            
      2006 - Pub. L. 109-364, div. A, title VIII, Sec. 854(a)(2), Oct.
    17, 2006, 120 Stat. 2346, added item 2333.
      Pub. L. 109-163, div. A, title VIII, Sec. 812(a)(2), Jan. 6,
    2006, 119 Stat. 3378, substituted "Procurement of contract
    services: management structure" for "Procurement of services:
    management structure" in item 2330.
      2002 - Pub. L. 107-347, title II, Sec. 210(a)(2), Dec. 17, 2002,
    116 Stat. 2934, added item 2332.
      Pub. L. 107-314, div. A, title VIII, Sec. 801(a)(2), Dec. 2,
    2002, 116 Stat. 2602, added item 2308.
      2001 - Pub. L. 107-107, div. A, title VIII, Sec. 801(g)(2), Dec.
    28, 2001, 115 Stat. 1178, added items 2330, 2330a, and 2331 and
    struck out former item 2331 "Contracts for professional and
    technical services".
      2000 - Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec.
    802(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A-205, added item
    2306c.
      1998 - Pub. L. 105-261, div. A, title X, Sec. 1069(a)(3), Oct.
    17, 1998, 112 Stat. 2135, substituted "electronic commerce
    capability" for "FACNET capability" in item 2302c.
      1997 - Pub. L. 105-85, div. A, title VIII, Sec. 804(a)(2), title
    X, Sec. 1073(a)(48)(B), Nov. 18, 1997, 111 Stat. 1833, 1903,
    substituted "contracts: acquisition of property" for "contracts" in
    item 2306b and added item 2325.
      1996 - Pub. L. 104-201, div. A, title VIII, Sec. 805(b), Sept.
    23, 1996, 110 Stat. 2606, added item 2302d.
      Pub. L. 104-106, div. D, title XLI, Sec. 4105(a)(2), title XLIII,
    Sec. 4321(b)(6)(B), Feb. 10, 1996, 110 Stat. 647, 672, redesignated
    item 2304a, relating to contracts: prohibition on competition
    between Department of Defense and small businesses and certain
    other entities, as 2304e and added item 2305a.
      1994 - Pub. L. 103-355, title I, Secs. 1004(a)(2), 1022(a)(2),
    1501(b), 1503(a)(2), (b)(2), 1506(b), title II, Secs. 2001(i),
    2201(a)(2), title IV, Secs. 4002(b), 4203(a)(2), title VIII, Sec.
    8104(b)(2), title IX, Sec. 9002(b), Oct. 13, 1994, 108 Stat. 3253,
    3260, 3296-3298, 3303, 3318, 3338, 3346, 3391, 3402, struck out
    items 2301 "Congressional defense procurement policy", 2308
    "Assignment and delegation of procurement functions and
    responsibilities", 2325 "Preference for nondevelopmental items",
    and 2329 "Production special tooling and production special test
    equipment: contract terms and conditions", added items 2302a to
    2302c, 2304a relating to task and delivery order contracts: general
    authority, 2304b to 2304d, and 2306b, and substituted "Contract
    financing" for "Advance payments" in item 2307, "Assignment and
    delegation of procurement functions and responsibilities" for
    "Delegation" in item 2311, and "Examination of records of
    contractor" for "Examination of books and records of contractor" in
    item 2313.
      1993 - Pub. L. 103-160, div. A, title VIII, Secs. 828(a)(1),
    848(a)(2), Nov. 30, 1993, 107 Stat. 1713, 1725, added item 2304a
    and struck out item 2317 "Encouragement of competition and cost
    savings".
      1992 - Pub. L. 102-484, div. A, title VIII, Sec. 801(a)(2),
    (g)(2), title X, Sec. 1052(25)(B), div. D, title XLII, Sec.
    4271(b)(2), Oct. 23, 1992, 106 Stat. 2442, 2445, 2500, 2695, struck
    out items 2322 "Limitation on small business set-asides" and 2330
    "Integrated financing policy" and added items 2323 and 2323a.
      1990 - Pub. L. 101-510, div. A, title VIII, Secs. 804(b),
    834(a)(2), Nov. 5, 1990, 104 Stat. 1591, 1614, struck out item 2323
    "Commercial pricing for spare or repair parts" and added item 2331.
      1988 - Pub. L. 100-456, div. A, title VIII, Sec. 801(a)(2), Sept.
    29, 1988, 102 Stat. 2007, added item 2330.
      1987 - Pub. L. 100-180, div. A, title VIII, Sec. 810(a)(2), Dec.
    4, 1987, 101 Stat. 1132, added item 2329.
      Pub. L. 100-26, Sec. 7(a)(7)(B)(ii), (b)(9)(B), Apr. 21, 1987,
    101 Stat. 278, 280, transferred item 2305a "Major programs:
    competitive alternative sources", to chapter 144 as item 2438 and
    substituted "Release of technical data under Freedom of Information
    Act: recovery of costs" for "Release of technical data" in item
    2328.
      Pub. L. 100-26, Sec. 5(4), (6), made technical amendments to
    directory language of sections 926(a)(2) and 954(a)(2),
    respectively, of Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99-
    661. See 1986 Amendment note below.
      1986 - Pub. L. 99-661, div. A, title XIII, Sec. 1343(a)(12), Nov.
    14, 1986, 100 Stat. 3993, substituted "competitors" for
    "competition" in item 2319.
      Pub. L. 99-500, Sec. 101(c) [title X, Secs. 907(a)(2),
    908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2)], Oct. 18,
    1986, 100 Stat. 1783-82, 1783-138, 1783-141, 1783-155, 1783-165,
    1783-169, 1783-173, and Pub. L. 99-591, Sec. 101(c) [title X, Secs.
    907(a)(2), 908(d)(1)(B), 926(a)(2), 951(a)(2), 952(c)(2),
    954(a)(2)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-138, 3341-141,
    3341-155, 3341-165, 3341-169, 3341-173; Pub. L. 99-661, div. A,
    title IX, formerly title IV, Secs. 907(a)(2), 908(d)(1)(B),
    926(a)(2), 951(a)(2), 952(c)(2), 954(a)(2), Nov. 14, 1986, 100
    Stat. 3917, 3921, 3935, 3945, 3949, 3953, renumbered title IX, Pub.
    L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; as amended by
    Pub. L. 100-26, Sec. 5(4), (6), Apr. 21, 1987, 101 Stat. 274,
    amended chapter analysis identically striking out ": cost or
    pricing data: truth in negotiations" after "contracts" in item
    2306, substituting "spare or repair parts" for "supplies" in item
    2323, and adding items 2306a and 2325 to 2328.
      1985 - Pub. L. 99-145, title IX, Secs. 911(a)(2), 912(a)(2), Nov.
    8, 1985, 99 Stat. 685, 686, added items 2305a and 2324.
      1984 - Pub. L. 98-577, title III, Sec. 302(c)(2), Oct. 30, 1984,
    98 Stat. 3077, struck out item 2303a "Publication of proposed
    regulations".
      Pub. L. 98-525, title XII, Sec. 1217, Oct. 19, 1984, 98 Stat.
    2599, added items 2303a and 2317 to 2323.
      Pub. L. 98-369, div. B, title VII, Sec. 2727(a), July 18, 1984,
    98 Stat. 1194, substituted "Congressional defense procurement
    policy" for "Declaration of policy" in item 2301, "Contracts:
    competition requirements" for "Purchases and contracts: formal
    advertising; exceptions" in item 2304, "Contracts: planning,
    solicitation, evaluation, and award procedures" for "Formal
    advertisements for bids; time; opening; award; rejection" in item
    2305, and "Kinds of contracts; cost or pricing data: truth in
    negotiation" for "Kinds of contracts" in item 2306.
      1982 - Pub. L. 97-295, Sec. 1(26)(B), Oct. 12, 1982, 96 Stat.
    1291, added item 2316.
      1981 - Pub. L. 97-86, title IX, Sec. 908(a)(2), Dec. 1, 1981, 95
    Stat. 1118, added item 2315.
      1980 - Pub. L. 96-513, title V, Sec. 511(75), Dec. 12, 1980, 94
    Stat. 2926, inserted "formal" before "advertising" in item 2304.

-FOOTNOTE-               

    (!1) So in original. Does not conform to section catchline.

-End-

-CITE-
    10 USC Sec. 2301                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2301. Repealed.

-MISC1-
    [Sec. 2301. Repealed. Pub. L. 103-355, title I, Sec. 1501(a), Oct.
      13, 1994, 108 Stat. 3296].
      Section, acts Aug. 10, 1956, ch. 1041, 70A Stat. 127; Dec. 1,
    1981, Pub. L. 97-86, title IX, Sec. 909(a), 95 Stat. 1118; July 18,
    1984, Pub. L. 98-369, div. B, title VII, Sec. 2721, 98 Stat. 1185;
    Oct. 18, 1986, Pub. L. 99-500, Sec. 101(c) [title X, Sec. 925(a)],
    100 Stat. 1783-82, 1783-153, and Oct. 30, 1986, Pub. L. 99-591,
    Sec. 101(c) [title X, Sec. 925(a)], 100 Stat. 3341-82, 3341-153;
    Nov. 14, 1986, Pub. L. 99-661, div. A, title IX, formerly title IV,
    Sec. 925(a), 100 Stat. 3933, renumbered title IX, Apr. 21, 1987,
    Pub. L. 100-26, Sec. 3(5), 101 Stat. 273; Oct. 23, 1992, Pub. L.
    102-484, div. A, title VIII, Sec. 808(a), 106 Stat. 2449, related
    to Congressional defense procurement policy.

                         EFFECTIVE DATE OF REPEAL                     
      For effective date and applicability of repeal, see section 10001
    of Pub. L. 103-355, set out as an Effective Date of 1994 Amendment
    note under section 251 of Title 41, Public Contracts.

-End-

-CITE-
    10 USC Sec. 2302                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2302. Definitions

-STATUTE-
      In this chapter:
        (1) The term "head of an agency" means the Secretary of
      Defense, the Secretary of the Army, the Secretary of the Navy,
      the Secretary of the Air Force, the Secretary of Homeland
      Security, and the Administrator of the National Aeronautics and
      Space Administration.
        (2) The term "competitive procedures" means procedures under
      which the head of an agency enters into a contract pursuant to
      full and open competition. Such term also includes - 
          (A) procurement of architectural or engineering services
        conducted in accordance with chapter 11 of title 40;
          (B) the competitive selection for award of basic research
        proposals resulting from a general solicitation and the peer
        review or scientific review (as appropriate) of such proposals;
          (C) the procedures established by the Administrator of
        General Services for the multiple award schedule program of the
        General Services Administration if - 
            (i) participation in the program has been open to all
          responsible sources; and
            (ii) orders and contracts under such program result in the
          lowest overall cost alternative to meet the needs of the
          United States;

          (D) procurements conducted in furtherance of section 15 of
        the Small Business Act (15 U.S.C. 644) as long as all
        responsible business concerns that are entitled to submit
        offers for such procurements are permitted to compete; and
          (E) a competitive selection of research proposals resulting
        from a general solicitation and peer review or scientific
        review (as appropriate) solicited pursuant to section 9 of the
        Small Business Act (15 U.S.C. 638).

        (3) The following terms have the meanings provided such terms
      in section 4 of the Office of Federal Procurement Policy Act (41
      U.S.C. 403):
          (A) The term "procurement".
          (B) The term "procurement system".
          (C) The term "standards".
          (D) The term "full and open competition".
          (E) The term "responsible source".
          (F) The term "item".
          (G) The term "item of supply".
          (H) The term "supplies".
          (I) The term "commercial item".
          (J) The term "nondevelopmental item".
          (K) The term "commercial component".
          (L) The term "component".

        (4) The term "technical data" means recorded information
      (regardless of the form or method of the recording) of a
      scientific or technical nature (including computer software
      documentation) relating to supplies procured by an agency. Such
      term does not include computer software or financial,
      administrative, cost or pricing, or management data or other
      information incidental to contract administration.
        (5) The term "major system" means a combination of elements
      that will function together to produce the capabilities required
      to fulfill a mission need. The elements may include hardware,
      equipment, software or any combination thereof, but excludes
      construction or other improvements to real property. A system
      shall be considered a major system if (A) the conditions of
      section 2302d of this title are satisfied, or (B) the system is
      designated a "major system" by the head of the agency responsible
      for the system.
        (6) The term "Federal Acquisition Regulation" means the Federal
      Acquisition Regulation issued pursuant to section 25(c)(1) of the
      Office of Federal Procurement Policy Act (41 U.S.C. 421(c)(1)).
        (7) The term "simplified acquisition threshold" has the meaning
      provided that term in section 4 of the Office of Federal
      Procurement Policy Act (41 U.S.C. 403), except that, in the case
      of any contract to be awarded and performed, or purchase to be
      made, outside the United States in support of a contingency
      operation or a humanitarian or peacekeeping operation, the term
      means an amount equal to two times the amount specified for that
      term in section 4 of such Act.
        (8) The term "humanitarian or peacekeeping operation" means a
      military operation in support of the provision of humanitarian or
      foreign disaster assistance or in support of a peacekeeping
      operation under chapter VI or VII of the Charter of the United
      Nations. The term does not include routine training, force
      rotation, or stationing.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 127; Pub. L. 85-568, title III,
    Sec. 301(b), July 29, 1958, 72 Stat. 432; Pub. L. 85-861, Sec.
    1(43A), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 96-513, title V, Sec.
    511(74), Dec. 12, 1980, 94 Stat. 2926; Pub. L. 98-369, div. B,
    title VII, Sec. 2722(a), July 18, 1984, 98 Stat. 1186; Pub. L. 98-
    525, title XII, Sec. 1211, Oct. 19, 1984, 98 Stat. 2589; Pub. L.
    98-577, title V, Sec. 504(b)(3), Oct. 30, 1984, 98 Stat. 3087; Pub.
    L. 99-661, div. A, title XIII, Sec. 1343(a)(13), Nov. 14, 1986, 100
    Stat. 3993; Pub. L. 100-26, Sec. 7(k)(2), Apr. 21, 1987, 101 Stat.
    284; Pub. L. 101-189, div. A, title VIII, Sec. 853(b)(1), Nov. 29,
    1989, 103 Stat. 1518; Pub. L. 102-25, title VII, Sec. 701(d)(1),
    Apr. 6, 1991, 105 Stat. 113; Pub. L. 102-190, div. A, title VIII,
    Sec. 805, Dec. 5, 1991, 105 Stat. 1417; Pub. L. 103-355, title I,
    Sec. 1502, Oct. 13, 1994, 108 Stat. 3296; Pub. L. 104-106, div. D,
    title XLIII, Sec. 4321(b)(3), Feb. 10, 1996, 110 Stat. 672; Pub. L.
    104-201, div. A, title VIII, Secs. 805(a)(1), 807(a), Sept. 23,
    1996, 110 Stat. 2605, 2606; Pub. L. 105-85, div. A, title VIII,
    Sec. 803(b), Nov. 18, 1997, 111 Stat. 1832; Pub. L. 107-217, Sec.
    3(b)(2), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 107-296, title
    XVII, Sec. 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
                                 1956 ACT                             
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2302         41:158 (less clause (b)).     Feb. 19, 1948, ch. 65,   
                                                Sec. 9 (less clause     
                                                (b)), 62 Stat. 24.      
    --------------------------------------------------------------------

      In clause (1), the words "(if any)" are omitted as surplusage.
    The words "Secretary of the Treasury" are substituted for the words
    "Commandant, United States Coast Guard, Treasury Department", since
    the functions of the Coast Guard and its officers, while operating
    under the Department of the Treasury, were vested in the Secretary
    of the Treasury by 1950 Reorganization Plan No. 26, effective July
    31, 1950, 64 Stat. 1280. Under that plan the Secretary of the
    Treasury was authorized to delegate any of those functions to the
    agencies and employees of the Department of the Treasury.
      Clauses (2) and (3) are inserted for clarity, and are based on
    the usage of those terms throughout the revised chapter.

                                 1958 ACT                             
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2302(3)      [No source].                  [No source].             
    --------------------------------------------------------------------

      The amendments reflect section 1(44) of the bill [amending
    section 2305 of Title 10].

                                AMENDMENTS                            
      2002 - Par. (1). Pub. L. 107-296 substituted "of Homeland
    Security" for "of Transportation".
      Par. (2)(A). Pub. L. 107-217 substituted "chapter 11 of title 40"
    for "title IX of the Federal Property and Administrative Services
    Act of 1949 (40 U.S.C. 541 et seq.)".
      1997 - Pars. (7), (8). Pub. L. 105-85 struck out "(A)" before
    "The term 'simplified" in par. (7), redesignated par. (7)(B) as
    par. (8), and substituted "The" for "In subparagraph (A), the" in
    that par.
      1996 - Par. (3)(K). Pub. L. 104-106 inserted period at end.
      Par. (5). Pub. L. 104-201, Sec. 805(a)(1), substituted "A system
    shall be considered a major system if (A) the conditions of section
    2302d of this title are satisfied, or (B) the system is designated
    a 'major system' by the head of the agency responsible for the
    system." for "A system shall be considered a major system if (A)
    the Department of Defense is responsible for the system and the
    total expenditures for research, development, test, and evaluation
    for the system are estimated to be more than $75,000,000 (based on
    fiscal year 1980 constant dollars) or the eventual total
    expenditure for procurement of more than $300,000,000 (based on
    fiscal year 1980 constant dollars); (B) a civilian agency is
    responsible for the system and total expenditures for the system
    are estimated to exceed $750,000 (based on fiscal year 1980
    constant dollars) or the dollar threshold for a 'major system'
    established by the agency pursuant to Office of Management and
    Budget (OMB) Circular A-109, entitled 'Major Systems Acquisitions',
    whichever is greater; or (C) the system is designated a 'major
    system' by the head of the agency responsible for the system."
      Par. (7). Pub. L. 104-201, Sec. 807(a), designated existing
    provisions as subpar. (A), inserted "or a humanitarian or
    peacekeeping operation" after "contingency operation", and added
    subpar. (B).
      1994 - Par. (3). Pub. L. 103-355, Sec. 1502(1), added par. (3)
    and struck out former par. (3) which read as follows: "The terms
    'full and open competition' and 'responsible source' have the same
    meanings provided such terms in section 4 of the Office of Federal
    Procurement Policy Act (41 U.S.C. 403)."
      Par. (7). Pub. L. 103-355, Sec. 1502(2), added par. (7) and
    struck out former par. (7) which read as follows: "The term 'small
    purchase threshold' has the meaning given that term in section
    4(11) of the Office of Federal Procurement Policy Act (41 U.S.C.
    403(11)), except that, in the case of any contract to be awarded
    and performed, or purchase to be made, outside the United States in
    support of a contingency operation, the term means $100,000."
      1991 - Par. (7). Pub. L. 102-190 inserted before period ", except
    that, in the case of any contract to be awarded and performed, or
    purchase to be made, outside the United States in support of a
    contingency operation, the term means $100,000".
      Pub. L. 102-25 added par. (7).
      1989 - Par. (6). Pub. L. 101-189 added par. (6).
      1987 - Pub. L. 100-26, Sec. 7(k)(2)(A), inserted "The term" after
    each par. designation except par. (3) and struck out uppercase
    letter of first word after first quotation marks in each par. and
    substituted lowercase letter.
      1986 - Par. (2)(A). Pub. L. 99-661 substituted "(40 U.S.C." for
    "(41 U.S.C.".
      1984 - Pub. L. 98-369 amended section generally, substituting in
    cl. (1) "the Secretary of Defense, the Secretary of the Army, the
    Secretary of the Navy, the Secretary of the Air Force" for "the
    Secretary, the Under Secretary, or any Assistant Secretary, of the
    Army, Navy, or Air Force", in cl. (2) definition of "competitive
    procedures" for a definition of "negotiate", and in cl. (3)
    definition of the terms "full and open competition" and
    "responsible source" for a definition of "formal advertising".
      Cl. (2)(D), (E). Pub. L. 98-577 added subpars. (D) and (E).
      Cls. (4), (5). Pub. L. 98-525 added cls. (4) and (5).
      1980 - Cl. (1). Pub. L. 96-513 substituted "Secretary of
    Transportation" for "Secretary of the Treasury".
      1958 - Cl. (1). Pub. L. 85-568 substituted "Administrator of the
    National Aeronautics and Space Administration" for "Executive
    Secretary of the National Advisory Committee for Aeronautics", in
    cl. (1).
      Cl. (3). Pub. L. 85-861 substituted "section 2305 of this title"
    for "section 2305(a) and (b) of this title".

                     EFFECTIVE DATE OF 2002 AMENDMENT                 
      Amendment by Pub. L. 107-296 effective on the date of transfer of
    the Coast Guard to the Department of Homeland Security, see section
    1704(g) of Pub. L. 107-296, set out as a note under section 101 of
    this title.

                     EFFECTIVE DATE OF 1996 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 104-
    106, see section 4401 of Pub. L. 104-106, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1984 AMENDMENT                 
      Amendment by Pub. L. 98-369 applicable with respect to any
    solicitation for bids or proposals issued after Mar. 31, 1985, see
    section 2751 of Pub. L. 98-369, set out as a note under section 251
    of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1980 AMENDMENT                 
      Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section
    701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of
    this title.

                     EFFECTIVE DATE OF 1958 AMENDMENT                 
      Section 301(e) of Pub. L. 85-568 provided that: "This section
    [amending this section, section 2303 of this title, section 22-1 of
    former Title 5, and sections 511 to 513 and 515 of Title 50, War
    and National Defense, and enacting provisions set out as a note
    under section 2472 of Title 42, The Public Health and Welfare]
    shall take effect ninety days after the date of the enactment of
    this Act [July 29, 1958], or on any earlier date on which the
    Administrator [of the National Aeronautics and Space
    Administration] shall determine, and announce by proclamation
    published in the Federal Register, that the Administration has been
    organized and is prepared to discharge the duties and exercise the
    powers conferred upon it by this Act."

                       SHORT TITLE OF 1986 AMENDMENT                   
      Section 101(c) [title X, Sec. 900] of Pub. L. 99-500 and Pub. L.
    99-591, and section 900 of title IX of division A of Pub. L. 99-
    661, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21,
    1987, 101 Stat. 273, provided that: "This title [enacting sections
    133a, 2306a, 2325-2328, 2365-2367, 2397b, 2397c, 2408, 2409, 2416,
    and 2435-2437 of this title, amending sections 133, 134, 135, 138,
    171, 1622, 2301, 2304, 2305, 2306, 2320, 2321, 2323, 2384, 2406,
    2411, 2413, 2432, and 2433 of this title, sections 5314 and 5315 of
    Title 5, Government Organization and Employees, sections 632, 637,
    and 644 of Title 15, Commerce and Trade, and section 416 of Title
    41, Public Contracts, renumbering section 2416 as 2417 of this
    title, enacting provisions set out as notes under sections 113,
    1621, 2304, 2305, 2306a, 2320, 2323, 2325-2328, 2365-2367, 2384,
    2397b, 2406, 2408, 2409, 2416, 2432, 2435-2437 of this title and
    section 632 of Title 15, amending provisions set out as a note
    under this section, and repealing provisions set out as notes under
    section 2304 and 2397a of this title] may be cited as the 'Defense
    Acquisition Improvement Act of 1986'."

                       SHORT TITLE OF 1985 AMENDMENT                   
      Pub. L. 99-145, title IX, Sec. 901, Nov. 8, 1985, 99 Stat. 682,
    provided that: "This title [enacting sections 1621 to 1624, 2305a,
    2324, 2397a, and 2406 of this title, amending sections 2304, 2313,
    2320, 2323, 2397, and 2411 to 2415 of this title, section 759 of
    former Title 40, Public Buildings, Property, and Works, sections
    253 and 418a of Title 41, Public Contracts, and section 2168 of
    Title 50, Appendix, War and National Defense, enacting provisions
    set out as notes under this section and sections 139, 139c, 1622 to
    1624, 2304, 2305a, 2307, 2324, 2397a, and 2411 of this title,
    section 287 of Title 18, Crimes and Criminal Procedure, section
    3729 of Title 31, Money and Finance, and section 2168 of Title 50,
    Appendix, and amending provisions set out as a note under section
    418a of Title 41] may be cited as the 'Defense Procurement
    Improvement Act of 1985'."

                       SHORT TITLE OF 1984 AMENDMENT                   
      Section 1201 of title XII of Pub. L. 98-525 provided that: "This
    title [enacting sections 2303a, 2317 to 2323, 2384a, 2402 to 2405,
    and 2411 to 2416 of this title, amending sections 139a, 139b, 2302,
    2305, 2311, 2384, and 2401 of this title, enacting provisions set
    out as notes under this section and sections 139, 139a, 2303a,
    2305, 2318, 2319, 2322, 2323, 2384, 2384a, 2392, and 2402 of this
    title, amending provisions set out as notes under sections 2392,
    2401, and 2452 of this title, and repealing provisions set out as
    notes under section 2304 of this title] may be cited as the
    'Defense Procurement Reform Act of 1984'."

     QUALITY CONTROL IN PROCUREMENT OF SHIP CRITICAL SAFETY ITEMS AND
                             RELATED SERVICES
      Pub. L. 109-364, div. A, title I, Sec. 130(a)-(c), Oct. 17, 2006,
    120 Stat. 2110, provided that:
      "(a) Quality Control Policy. - The Secretary of Defense shall
    prescribe in regulations a quality control policy for the
    procurement of the following:
        "(1) Ship critical safety items.
        "(2) Modifications, repair, and overhaul of ship critical
      safety items.
      "(b) Elements. - The policy required under subsection (a) shall
    include requirements as follows:
        "(1) That the head of the design control activity for ship
      critical safety items establish processes to identify and manage
      the procurement, modification, repair, and overhaul of such
      items.
        "(2) That the head of the contracting activity for a ship
      critical safety item enter into a contract for the procurement,
      modification, repair, or overhaul of such item only with a source
      on a qualified manufacturers list or a source approved by the
      design control activity in accordance with section 2319 of title
      10, United States Code (as amended by subsection (d)).
        "(3) That the ship critical safety items delivered, and the
      services performed with respect to such items, meet all technical
      and quality requirements specified by the design control
      activity.
      "(c) Definitions. - In this section, the terms 'ship critical
    safety item' and 'design control activity' have the meanings given
    such terms in subsection (g) of section 2319 of title 10, United
    States Code (as so amended)."

     PILOT PROGRAM ON TIME-CERTAIN DEVELOPMENT IN ACQUISITION OF MAJOR
                              WEAPON SYSTEMS
      Pub. L. 109-364, div. A, title VIII, Sec. 812, Oct. 17, 2006, 120
    Stat. 2317, provided that:
      "(a) Pilot Program Authorized. - The Secretary of Defense may
    carry out a pilot program on the use of time-certain development in
    the acquisition of major weapon systems.
      "(b) Purpose of Pilot Program. - The purpose of the pilot program
    authorized by subsection (a) is to assess the feasibility and
    advisability of utilizing time-certain development in the
    acquisition of major weapon systems in order to deliver new
    capabilities to the warfighter more rapidly through - 
        "(1) disciplined decision-making;
        "(2) emphasis on technological maturity; and
        "(3) appropriate trade-offs between - 
          "(A) cost and system performance; and
          "(B) program schedule.
      "(c) Inclusion of Systems in Pilot Program. - 
        "(1) In general. - The Secretary of Defense may include a major
      weapon system in the pilot program only if - 
          "(A) the major weapon system meets the criteria under
        paragraph (2) in accordance with that paragraph; and
          "(B) the Milestone Decision Authority nominates such program
        to the Secretary of Defense for inclusion in the program.
        "(2) Criteria. - For purposes of paragraph (1) a major weapon
      system meets the criteria under this paragraph only if the
      Milestone Decision Authority determines, in consultation with the
      service acquisition executive for the military department
      carrying out the acquisition program for the system and one or
      more combatant commanders responsible for fielding the system,
      that - 
          "(A) the certification requirements of section 2366a of title
        10, United States Code (as amended by section 805 of this Act),
        have been met, and no waivers have been granted from such
        requirements;
          "(B) a preliminary design has been reviewed using systems
        engineering, and the system, as so designed, will meet
        battlefield needs identified by the relevant combatant
        commanders after appropriate requirements analysis;
          "(C) a representative model or prototype of the system, or
        key subsystems, has been demonstrated in a relevant
        environment, such as a well-simulated operational environment;
          "(D) an independent cost estimate has been conducted and used
        as the basis for funding requirements for the acquisition
        program for the system;
          "(E) the budget of the military department responsible for
        carrying out the acquisition program for the system provides
        the funding necessary to execute the product development and
        production plan consistent with the requirements identified
        pursuant to subparagraph (D);
          "(F) an appropriately qualified program manager has entered
        into a performance agreement with the Milestone Decision
        Authority that establishes expected parameters for the cost,
        schedule, and performance of the acquisition program for the
        system, consistent with a business case for such acquisition
        program;
          "(G) the service acquisition executive and the program
        manager have developed a strategy to ensure stability in
        program management until, at a minimum, the delivery of the
        initial operational capability under the acquisition program
        for the system has occurred;
          "(H) the service acquisition executive, the relevant
        combatant commanders, and the program manager have agreed that
        no additional requirements that would be inconsistent with the
        agreed-upon program schedule will be added during the
        development phase of the acquisition program for the system;
        and
          "(I) a planned initial operational capability will be
        delivered to the relevant combatant commanders within a defined
        period of time as prescribed in regulations by the Secretary of
        Defense.
        "(3) Timing of decision. - The decision whether to include a
      major weapon system in the pilot program shall be made at the
      time of milestone approval for the acquisition program for the
      system.
      "(d) Limitation on Number of Weapons Systems in Pilot Program. -
    The number of major weapon systems included in the pilot program at
    any time may not exceed six major weapon systems.
      "(e) Limitation on Cost of Weapons Systems in Pilot Program. -
    The Secretary of Defense may include a major weapon system in the
    pilot program only if, at the time a major weapon system is
    proposed for inclusion, the total cost for system design and
    development of the weapon system, as set forth in the cost estimate
    referred to in subsection (c)(2)(D), does not exceed $1,000,000,000
    during the period covered by the current future-years defense
    program.
      "(f) Special Funding Authority. - 
        "(1) Authority for reserve account. - Notwithstanding any other
      provision of law, the Secretary of Defense may establish a
      special reserve account utilizing funds made available for the
      major weapon systems included in the pilot program.
        "(2) Elements. - The special reserve account may include - 
          "(A) funds made available for any major weapon system
        included in the pilot program to cover termination liability;
          "(B) funds made available for any major weapon system
        included in the pilot program for award fees that may be earned
        by contractors; and
          "(C) funds appropriated to the special reserve account.
        "(3) Availability of funds. - Funds in the special reserve
      account may be used, in accordance with guidance issued by the
      Secretary for purposes of this section, for the following
      purposes:
          "(A) To cover termination liability for any major weapon
        system included in the pilot program.
          "(B) To pay award fees that are earned by any contractor for
        a major weapon system included in the pilot program.
          "(C) To address unforeseen contingencies that could prevent a
        major weapon system included in the pilot program from meeting
        critical schedule or performance requirements.
        "(4) Reports on use of funds. - Not later than 30 days after
      the use of funds in the special reserve account for the purpose
      specified in paragraph (3)(C), the Secretary shall submit to the
      congressional defense committees [Committees on Armed Services
      and Appropriations of the Senate and the House of
      Representatives] a report on the use of funds in the account for
      such purpose. The report shall set forth the purposes for which
      the funds were used and the reasons for the use of the funds for
      such purposes.
        "(5) Relationship to appropriations. - Nothing in this
      subsection may be construed as extending any period of time for
      which appropriated funds are made available.
      "(g) Administration of Pilot Program. - The Secretary of Defense
    shall prescribe policies and procedures on the administration of
    the pilot program. Such policies and procedures shall - 
        "(1) provide for the use of program status reports based on
      earned value data to track progress on a major weapon system
      under the pilot program against baseline estimates applicable to
      such system at each systems engineering technical review point;
      and
        "(2) grant authority, to the maximum extent practicable, to the
      program manager for the acquisition program for a major weapon
      system to make key program decisions and trade-offs, subject to
      management reviews only if cost or schedule deviations exceed the
      baselines for such acquisition program by 10 percent or more.
      "(h) Removal of Weapons Systems From Pilot Program. - The
    Secretary of Defense shall remove a major weapon system from the
    pilot program if - 
        "(1) the weapon system receives Milestone C approval; or
        "(2) the Secretary determines that the weapon system is no
      longer in substantial compliance with the criteria in subsection
      (c)(2) or is otherwise no longer appropriate for inclusion in the
      pilot program.
      "(i) Expiration of Authority To Include Additional Systems in
    Pilot Program. - 
        "(1) Expiration. - A major weapon system may not be included in
      the pilot program after September 30, 2012.
        "(2) Retention of systems. - A major weapon system included in
      the pilot program before the date specified in paragraph (1) in
      accordance with the requirements of this section may remain in
      the pilot program after that date.
      "(j) Annual Report. - 
        "(1) In general. - Not later than one year after including the
      first major weapon system in the pilot program, and annually
      thereafter, the Secretary shall submit to the congressional
      defense committees [Committees on Armed Services and
      Appropriations of the Senate and the House of Representatives] a
      report on the pilot program, and the major weapon systems
      included in the pilot program, during the one-year period ending
      on the date of such report.
        "(2) Elements. - Each report under this subsection shall
      include - 
          "(A) a description of progress under the pilot program, and
        on each major weapon system included in the pilot program,
        during the period covered by such report;
          "(B) a description of the use of all funds in the special
        reserve account established under subsection (f); and
          "(C) such other matters as the Secretary considers
        appropriate.
      "(k) Major Weapon System Defined. - In this section, the term
    'major weapon system' means a weapon system that is treatable as a
    major system under section 2302(5) of title 10, United States
    Code."

        LINKING OF AWARD AND INCENTIVE FEES TO ACQUISITION OUTCOMES    
      Pub. L. 109-364, div. A, title VIII, Sec. 814, Oct. 17, 2006, 120
    Stat. 2321, provided that:
      "(a) Guidance on Linking of Award and Incentive Fees to
    Acquisition Outcomes. - Not later than 180 days after the date of
    the enactment of this Act [Oct. 17, 2006], the Secretary of Defense
    shall issue guidance, with detailed implementation instructions
    (including definitions), for the Department of Defense on the
    appropriate use of award and incentive fees in Department of
    Defense acquisition programs.
      "(b) Elements. - The guidance under subsection (a) shall - 
        "(1) ensure that all new contracts using award fees link such
      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 such 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 military
      departments and Defense Agencies;
        "(8) ensure that the Department of Defense - 
          "(A) collects relevant data on award and incentive fees paid
        to contractors; and
          "(B) has mechanisms in place to evaluate such 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.
      "(c) Assessment of Independent Evaluation Mechanisms. - 
        "(1) In general. - The Secretary of Defense shall select a
      federally funded research and development center to assess
      various mechanisms that could be used to ensure an independent
      evaluation of contractor performance for the purpose of making
      determinations applicable to the judging and payment of award
      fees.
        "(2) Considerations. - The assessment conducted pursuant to
      paragraph (1) shall include consideration of the advantages and
      disadvantages of a system in which award fees are - 
          "(A) held in a separate fund or funds of the Department of
        Defense; and
          "(B) allocated to a specific program only upon a
        determination by an independent board, charged with comparing
        contractor performance across programs, that such fees have
        been earned by the contractor for such program.
        "(3) Report. - The Secretary shall submit to the congressional
      defense committees [Committees on Armed Services and
      Appropriations of the Senate and the House of Representatives] a
      report on the assessment conducted pursuant to paragraph (1) not
      later than one year after the date of the enactment of this Act
      [Oct. 17, 2006]."

      LIMITATION ON CONTRACTS FOR THE ACQUISITION OF CERTAIN SERVICES  
      Pub. L. 109-364, div. A, title VIII, Sec. 832, Oct. 17, 2006, 120
    Stat. 2331, provided that:
      "(a) Limitation. - Except as provided in subsection (b), the
    Secretary of Defense may not enter into a service contract to
    acquire a military flight simulator.
      "(b) Waiver. - The Secretary of Defense may waive subsection (a)
    with respect to a contract if the Secretary - 
        "(1) determines that a waiver is necessary for national
      security purposes; and
        "(2) provides to the congressional defense committees
      [Committees on Armed Services and Appropriations of the Senate
      and the House of Representatives] an economic analysis as
      described in subsection (c) at least 30 days before the waiver
      takes effect.
      "(c) Economic Analysis. - The economic analysis provided under
    subsection (b) shall include, at a minimum, the following:
        "(1) A clear explanation of the need for the contract.
        "(2) An examination of at least two alternatives for fulfilling
      the requirements that the contract is meant to fulfill, including
      the following with respect to each alternative:
          "(A) A rationale for including the alternative.
          "(B) A cost estimate of the alternative and an analysis of
        the quality of each cost estimate.
          "(C) A discussion of the benefits to be realized from the
        alternative.
          "(D) A best value determination of each alternative and a
        detailed explanation of the life-cycle cost calculations used
        in the determination.
      "(d) Definitions. - In this section:
        "(1) The term 'military flight simulator' means any major
      system to simulate the form, fit, and function of a military
      aircraft that has no commonly available commercial variant.
        "(2) The term 'service contract' means any contract entered
      into by the Department of Defense the principal purpose of which
      is to furnish services in the United States through the use of
      service employees.
        "(3) The term 'service employees' has the meaning provided in
      section 8(b) of the Service Contract Act of 1965 (41 U.S.C.
      357(b))."

       CONGRESSIONAL NOTIFICATION OF CANCELLATION OF MAJOR AUTOMATED
                            INFORMATION SYSTEMS
      Pub. L. 109-163, div. A, title VIII, Sec. 806, Jan. 6, 2006, 119
    Stat. 3373, provided that:
      "(a) Report Required. - The Secretary of Defense shall notify the
    congressional defense committees [Committees on Armed Services and
    Appropriations of the Senate and the House of Representatives] not
    less than 60 days before cancelling a major automated information
    system program that has been fielded or approved to be fielded, or
    making a change that will significantly reduce the scope of such a
    program, of the proposed cancellation or change.
      "(b) Content. - Each notification submitted under subsection (a)
    with respect to a proposed cancellation or change shall include - 
        "(1) the specific justification for the proposed cancellation
      or change;
        "(2) a description of the impact of the proposed cancellation
      or change on the ability of the Department to achieve the
      objectives of the program proposed for cancellation or change;
        "(3) a description of the steps that the Department plans to
      take to achieve those objectives; and
        "(4) other information relevant to the change in acquisition
      strategy.
      "(c) Definitions. - In this section:
        "(1) The term 'major automated information system' has the
      meaning given that term in Department of Defense directive
      5000.1.
        "(2) The term 'approved to be fielded' means having received
      Milestone C approval."

                  JOINT POLICY ON CONTINGENCY CONTRACTING              
      Pub. L. 109-163, div. A, title VIII, Sec. 817, Jan. 6, 2006, 119
    Stat. 3382, provided that:
      "(a) Joint Policy. - 
        "(1) Requirement. - Not later than one year after the date of
      the enactment of this Act [Jan. 6, 2006], the Secretary of
      Defense, in consultation with the Chairman of the Joint Chiefs of
      Staff, shall develop a joint policy for contingency contracting
      during combat operations and post-conflict operations.
        "(2) Matters covered. - The joint policy for contingency
      contracting required by paragraph (1) shall, at a minimum,
      provide for - 
          "(A) the designation of a senior commissioned officer in each
        military department with the responsibility for administering
        the policy;
          "(B) the assignment of a senior commissioned officer with
        appropriate acquisition experience and qualifications to act as
        head of contingency contracting during combat operations, post-
        conflict operations, and contingency operations, who shall
        report directly to the commander of the combatant command in
        whose area of responsibility the operations occur;
          "(C) an organizational approach to contingency contracting
        that is designed to ensure that each military department is
        prepared to conduct contingency contracting during combat
        operations and post-conflict operations;
          "(D) a requirement to provide training (including training
        under a program to be created by the Defense Acquisition
        University) to contingency contracting personnel in - 
            "(i) the use of law, regulations, policies, and directives
          related to contingency contracting operations;
            "(ii) the appropriate use of rapid acquisition methods,
          including the use of exceptions to competition requirements
          under section 2304 of title 10, United States Code, sealed
          bidding, letter contracts, indefinite delivery indefinite
          quantity task orders, set asides under section 8(a) of the
          Small Business Act (15 U.S.C. 637(a)), undefinitized contract
          actions, and other tools available to expedite the delivery
          of goods and services during combat operations or post-
          conflict operations;
            "(iii) the appropriate use of rapid acquisition authority,
          commanders' emergency response program funds, and other tools
          unique to contingency contracting; and
            "(iv) instruction on the necessity for the prompt
          transition from the use of rapid acquisition authority to the
          use of full and open competition and other methods of
          contracting that maximize transparency in the acquisition
          process;
          "(E) appropriate steps to ensure that training is maintained
        for such personnel even when they are not deployed in a
        contingency operation; and
          "(F) such steps as may be needed to ensure jointness and
        cross-service coordination in the area of contingency
        contracting.
      "(b) Reports. - 
        "(1) Interim report. - 
          "(A) Requirement. - Not later than 270 days after the date of
        the enactment of this Act [Jan. 6, 2006], the Secretary of
        Defense shall submit to the Committees on Armed Services of the
        Senate and the House of Representatives an interim report on
        contingency contracting.
          "(B) Matters covered. - The report shall include discussions
        of the following:
            "(i) Progress in the development of the joint policy under
          subsection (a).
            "(ii) The ability of the Armed Forces to support
          contingency contracting.
            "(iii) The ability of commanders of combatant commands to
          request contingency contracting support and the ability of
          the military departments and the acquisition support agencies
          to respond to such requests and provide such support,
          including the availability of rapid acquisition personnel for
          such support.
            "(iv) The ability of the current civilian and military
          acquisition workforce to deploy to combat theaters of
          operations and to conduct contracting activities during
          combat and during post-conflict, reconstruction, or other
          contingency operations.
            "(v) The effect of different periods of deployment on
          continuity in the acquisition process.
        "(2) Final report. - Not later than 18 months after the date of
      the enactment of this Act [Jan. 6, 2006], the Secretary of
      Defense shall submit to the committees listed in paragraph (1)(A)
      a final report on contingency contracting, containing a
      discussion of the implementation of the joint policy developed
      under subsection (a), including updated discussions of the
      matters covered in the interim report.
      "(c) Definitions. - In this section:
        "(1) Contingency contracting personnel. - The term 'contingency
      contracting personnel' means members of the Armed Forces and
      civilian employees of the Department of Defense who are members
      of the defense acquisition workforce and, as part of their
      duties, are assigned to provide support to contingency operations
      (whether deployed or not).
        "(2) Contingency contracting. - The term 'contingency
      contracting' means all stages of the process of acquiring
      property or services by the Department of Defense during a
      contingency operation.
        "(3) Contingency operation. - The term 'contingency operation'
      has the meaning provided in section 101(13) of title 10, United
      States Code.
        "(4) Acquisition support agencies. - The term 'acquisition
      support agencies' means Defense Agencies and Department of
      Defense Field Activities that carry out and provide support for
      acquisition-related activities."

        PROHIBITION ON PROCUREMENTS FROM COMMUNIST CHINESE MILITARY
                                 COMPANIES
      Pub. L. 109-163, div. A, title XII, Sec. 1211, Jan. 6, 2006, 119
    Stat. 3461, provided that:
      "(a) Prohibition. - The Secretary of Defense may not procure
    goods or services described in subsection (b), through a contract
    or any subcontract (at any tier) under a contract, from any
    Communist Chinese military company.
      "(b) Goods and Services Covered. - For purposes of subsection
    (a), the goods and services described in this subsection are goods
    and services on the munitions list of the International Trafficking
    in Arms Regulations, other than goods or services procured - 
        "(1) in connection with a visit by a vessel or an aircraft of
      the United States Armed Forces to the People's Republic of China;
        "(2) for testing purposes; or
        "(3) for purposes of gathering intelligence.
      "(c) Waiver Authorized. - The Secretary of Defense may waive the
    prohibition in subsection (a) if the Secretary determines such a
    waiver is necessary for national security purposes. The Secretary
    shall notify the congressional defense committees [Committees on
    Armed Services and Appropriations of the Senate and the House of
    Representatives] of each waiver made under this subsection.
      "(d) Definitions. - In this section:
        "(1) The term 'Communist Chinese military company' has the
      meaning provided that term by section 1237(b)(4) of the Strom
      Thurmond National Defense Authorization Act for Fiscal Year 1999
      [Pub. L. 105-261] (50 U.S.C. 1701 note).
        "(2) The term 'munitions list of the International Trafficking
      in Arms Regulations' means the United States Munitions List
      contained in part 121 of subchapter M of title 22 of the Code of
      Federal Regulations."

    DEVELOPMENT OF DEPLOYABLE SYSTEMS TO INCLUDE CONSIDERATION OF FORCE
               PROTECTION IN ASYMMETRIC THREAT ENVIRONMENTS
      Pub. L. 108-375, div. A, title I, Sec. 141, Oct. 28, 2004, 118
    Stat. 1829, provided that:
      "(a) Requirement for Systems Development. - The Secretary of
    Defense shall require that the Department of Defense regulations,
    directives, and guidance governing the acquisition of covered
    systems be revised to require that - 
        "(1) an assessment of warfighter survivability and of system
      suitability against asymmetric threats shall be performed as part
      of the development of system requirements for any such system;
      and
        "(2) requirements for key performance parameters for force
      protection and survivability shall be included as part of the
      documentation of system requirements for any such system.
      "(b) Covered Systems. - In this section, the term 'covered
    system' means any of the following systems that is expected to be
    deployed in an asymmetric threat environment:
        "(1) Any manned system.
        "(2) Any equipment intended to enhance personnel survivability.
      "(c) Inapplicability of Development Requirement to Systems
    Already Through Development. - The revisions pursuant subsection
    (a) to Department of Defense regulations, directives, and guidance
    shall not apply to a system that entered low-rate initial
    production before the date of the enactment of this Act [Oct. 28,
    2004].
      "(d) Deadline for Policy Revisions. - The revisions required by
    subsection (a) to Department of Defense regulations, directives,
    and guidance shall be made not later than 120 days after the date
    of the enactment of this Act [Oct. 28, 2004]."

     INTERNAL CONTROLS FOR DEPARTMENT OF DEFENSE PROCUREMENTS THROUGH
                        GSA CLIENT SUPPORT CENTERS
      Pub. L. 108-375, div. A, title VIII, Sec. 802, Oct. 28, 2004, 118
    Stat. 2004, as amended by Pub. L. 109-313, Sec. 2(c)(2), Oct. 6,
    2006, 120 Stat. 1735, provided that:
      "(a) Initial Inspector General Review and Determination. - (1)
    Not later than March 15, 2005, the Inspector General of the
    Department of Defense and the Inspector General of the General
    Services Administration shall jointly - 
        "(A) review - 
          "(i) the policies, procedures, and internal controls of each
        GSA Client Support Center; and
          "(ii) the administration of those policies, procedures, and
        internal controls; and
        "(B) for each such Center, determine in writing whether - 
          "(i) the Center is compliant with defense procurement
        requirements;
          "(ii) the Center is not compliant with defense procurement
        requirements, but the Center made significant progress during
        2004 toward becoming compliant with defense procurement
        requirements; or
          "(iii) neither of the conclusions stated in clauses (i) and
        (ii) is correct.
      "(2) If the Inspectors General determine under paragraph (1) that
    the conclusion stated in clause (ii) or (iii) of subparagraph (B)
    of such paragraph is correct in the case of a GSA Client Support
    Center, those Inspectors General shall, not later than March 15,
    2006, jointly - 
        "(A) conduct a second review regarding that GSA Client Support
      Center as described in paragraph (1)(A); and
        "(B) determine in writing whether that GSA Client Support
      Center is or is not compliant with defense procurement
      requirements.
      "(b) Compliance With Defense Procurement Requirements. - For the
    purposes of this section, a GSA Client Support Center is compliant
    with defense procurement requirements if the GSA Client Support
    Center's policies, procedures, and internal controls, and the
    manner in which they are administered, are adequate to ensure
    compliance of that Center with the requirements of laws and
    regulations that apply to procurements of property and services
    made directly by the Department of Defense.
      "(c) Limitations on Procurements Through GSA Client Support
    Centers. - (1) After March 15, 2005, and before March 16, 2006, no
    official of the Department of Defense may, except as provided in
    subsection (d) or (e), order, purchase, or otherwise procure
    property or services in an amount in excess of $100,000 through any
    GSA Client Support Center for which a determination described in
    paragraph (1)(B)(iii) of subsection (a) has been made under that
    subsection.
      "(2) After March 15, 2006, no official of the Department of
    Defense may, except as provided in subsection (d) or (e), order,
    purchase, or otherwise procure property or services in an amount in
    excess of $100,000 through any GSA Client Support Center that has
    not been determined under this section as being compliant with
    defense procurement requirements.
      "(d) Exception From Applicability of Limitations. - (1) No
    limitation applies under subsection (c) with respect to the
    procurement of property and services from a particular GSA Client
    Support Center during any period that there is in effect a
    determination of the Under Secretary of Defense for Acquisition,
    Technology, and Logistics, made in writing, that it is necessary in
    the interest of the Department of Defense to continue to procure
    property and services through that GSA Client Support Center.
      "(2) A written determination with respect to a GSA Client Support
    Center under paragraph (1) is in effect for the period, not in
    excess of one year, that the Under Secretary of Defense for
    Acquisition, Technology, and Logistics shall specify in the written
    determination. The Under Secretary may extend from time to time,
    for up to one year at a time, the period for which the written
    determination remains in effect.
      "(e) Termination of Applicability of Limitations. - Subsection
    (c) shall cease to apply to a GSA Client Support Center on the date
    on which the Inspector General of the Department of Defense and the
    Inspector General of the General Services Administration jointly
    determine that such Center is compliant with defense procurement
    requirements and notify the Secretary of Defense of that
    determination.
      "(f) GSA Client Support Center Defined. - In this section, the
    term 'GSA Client Support Center' means a Client Support Center of
    the Federal Acquisition Service of the General Services
    Administration."

     QUALITY CONTROL IN PROCUREMENT OF AVIATION CRITICAL SAFETY ITEMS
                           AND RELATED SERVICES
      Pub. L. 108-136, div. A, title VIII, Sec. 802(a)-(c), Nov. 24,
    2003, 117 Stat. 1540, provided that:
      "(a) Quality Control Policy. - The Secretary of Defense shall
    prescribe in regulations a quality control policy for the
    procurement of aviation critical safety items and the procurement
    of modifications, repair, and overhaul of such items.
      "(b) Content of Regulations. - The policy set forth in the
    regulations shall include the following requirements:
        "(1) That the head of the design control activity for aviation
      critical safety items establish processes to identify and manage
      the procurement, modification, repair, and overhaul of aviation
      critical safety items.
        "(2) That the head of the contracting activity for an aviation
      critical safety item enter into a contract for the procurement,
      modification, repair, or overhaul of such item only with a source
      approved by the design control activity in accordance with
      section 2319 of title 10, United States Code.
        "(3) That the aviation critical safety items delivered, and the
      services performed with respect to aviation critical safety
      items, meet all technical and quality requirements specified by
      the design control activity.
      "(c) Definitions. - In this section, the terms 'aviation critical
    safety item' and 'design control activity' have the meanings given
    such terms in section 2319(g) of title 10, United States Code, as
    amended by subsection (d)."

      COMPETITIVE AWARD OF CONTRACTS FOR RECONSTRUCTION ACTIVITIES IN
                                   IRAQ
      Pub. L. 108-136, div. A, title VIII, Sec. 805(a), Nov. 24, 2003,
    117 Stat. 1542, provided that: "The Department of Defense shall
    fully comply with chapter 137 of title 10, United States Code, and
    other applicable procurement laws and regulations for any contract
    awarded for reconstruction activities in Iraq, and shall conduct a
    full and open competition for performing work needed for the
    reconstruction of the Iraqi oil industry."

       DEMONSTRATION PROJECT FOR CONTRACTORS EMPLOYING PERSONS WITH
                               DISABILITIES
      Pub. L. 108-136, div. A, title VIII, Sec. 853, Nov. 24, 2003, 117
    Stat. 1557, as amended by Pub. L. 108-199, div. H, Sec. 110, Jan.
    23, 2004, 118 Stat. 438, provided that:
      "(a) Authority. - The Secretary of Defense may carry out a
    demonstration project by entering into one or more contracts with
    an eligible contractor for the purpose of providing defense
    contracting opportunities for severely disabled individuals.
      "(b) Evaluation Factor. - In evaluating an offer for a contract
    under the demonstration program, the percentage of the total
    workforce of the offeror consisting of severely disabled
    individuals employed by the offeror shall be one of the evaluation
    factors.
      "(c) Credit Toward Certain Small Business Contracting Goals. -
    Department of Defense contracts entered into with eligible
    contractors under the demonstration project under this section, and
    subcontracts entered into with eligible contractors under such
    contracts, shall be credited toward the attainment of goals
    established under section 2323 of title 10, United States Code, and
    section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1))
    regarding the extent of the participation of disadvantaged small
    business concerns in contracts of the Department of Defense and
    subcontracts under such contracts.
      "(d) Definitions. - In this section:
        "(1) Eligible contractor. - The term 'eligible contractor'
      means a business entity operated on a for-profit or nonprofit
      basis that - 
          "(A) employs severely disabled individuals at a rate that
        averages not less than 33 percent of its total workforce over a
        period prescribed by the Secretary;
          "(B) pays not less than the minimum wage prescribed pursuant
        to section 6 of the Fair Labor Standards Act of 1938 (29 U.S.C.
        206) to the employees who are severely disabled individuals;
        and
          "(C) provides for its employees health insurance and a
        retirement plan comparable to those provided for employees by
        business entities of similar size in its industrial sector or
        geographic region.
        "(2) Severely disabled individual. - The term 'severely
      disabled individual' means an individual with a disability (as
      defined in section 3 of the Americans with Disabilities Act of
      1990 (42 U.S.C. 12102)) who has a severe physical or mental
      impairment that seriously limits one or more functional
      capacities."

             PROCUREMENT OF DEFENSE BIOMEDICAL COUNTERMEASURES         
      Pub. L. 108-136, div. A, title XVI, Sec. 1602, Nov. 24, 2003, 117
    Stat. 1682, provided that:
      "(a) Determination of Material Threats. - (1) The Secretary of
    Defense (in this section referred to as the 'Secretary') shall on
    an ongoing basis - 
        "(A) assess current and emerging threats of use of biological,
      chemical, radiological, and nuclear agents; and
        "(B) identify, on the basis of such assessment, those agents
      that present a material risk of use against the Armed Forces.
      "(2) The Secretary shall on an ongoing basis - 
        "(A) assess the potential consequences to the health of members
      of the Armed Forces of use against the Armed Forces of the agents
      identified under paragraph (1)(B); and
        "(B) identify, on the basis of such assessment, those agents
      for which countermeasures are necessary to protect the health of
      members of the Armed Forces.
      "(b) Assessment of Availability and Appropriateness of
    Countermeasures. - The Secretary shall on an ongoing basis assess
    the availability and appropriateness of specific countermeasures to
    address specific threats identified under subsection (a).
      "(c) Secretary's Determination of Countermeasures Appropriate for
    Procurement. - (1) The Secretary, in accordance with paragraph (2),
    shall on an ongoing basis identify specific countermeasures that
    the Secretary determines to be appropriate for procurement for the
    Department of Defense stockpile of biomedical countermeasures.
      "(2) The Secretary may not identify a specific countermeasure
    under paragraph (1) unless the Secretary determines that - 
        "(A) the countermeasure is a qualified countermeasure; and
        "(B) it is reasonable to expect that producing and delivering,
      within 5 years, the quantity of that countermeasure required to
      meet the needs of the Department (as determined by the Secretary)
      is feasible.
      "(d) Interagency Cooperation. - (1) Activities of the Secretary
    under this section shall be carried out in regular, structured, and
    close consultation and coordination with the Secretaries of
    Homeland Security and Health and Human Services, including the
    activities described in subsections (a), (b), and (c) and those
    activities with respect to interagency agreements described in
    paragraph (2).
      "(2) The Secretary may enter into an interagency agreement with
    the Secretaries of Homeland Security and Health and Human Services
    to provide for acquisition by the Secretary of Defense for use by
    the Armed Forces of biomedical countermeasures procured for the
    Strategic National Stockpile by the Secretary of Health and Human
    Services. The Secretary may transfer such funds to the Secretary of
    Health and Human Services as are necessary to carry out such
    agreements (including administrative costs of the Secretary of
    Health and Human Services), and the Secretary of Health and Human
    Services may expend any such transferred funds to procure such
    countermeasures for use by the Armed Forces, or to replenish the
    stockpile. The Secretaries are authorized to establish such terms
    and conditions for such agreements as the Secretaries determine to
    be in the public interest. The transfer authority provided under
    this paragraph is in addition to any other transfer authority
    available to the Secretary.
      "(e) Definitions. - In this section:
        "(1) The term 'qualified countermeasure' means a biomedical
      countermeasure - 
          "(A) that is approved under section 505(a) of the Federal
        Food, Drug, and Cosmetic Act (21 U.S.C. 355) or licensed under
        section 351 of the Public Health Service Act (42 U.S.C. 262),
        or that is approved under section 515 or cleared under section
        510(k) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
        360e and 360) for use as such a countermeasure to a biological,
        chemical, radiological, or nuclear agent identified as a
        material threat under subsection (a); or
          "(B) with respect to which the Secretary of Health and Human
        Services makes a determination that sufficient and satisfactory
        clinical experience or research data (including data, if
        available, from preclinical and clinical trials) exists to
        support a reasonable conclusion that the product will qualify
        for such approval or licensing for use as such a
        countermeasure.
        "(2) The term 'biomedical countermeasure' means a drug (as
      defined in section 201(g)(1) of the Federal Food, Drug, and
      Cosmetic Act (21 U.S.C. 321(g)(1))), device (as defined in
      section 201(h) of the Federal Food, Drug, and Cosmetic Act (21
      U.S.C. 321(h))), or biological product (as defined in section
      351(i) of the Public Health Service Act (42 U.S.C. 262(i))) that
      is - 
          "(A) used to treat, identify, or prevent harm from any
        biological, chemical, radiological, or nuclear agent that may
        cause a military health emergency affecting the Armed Forces;
        or
          "(B) used to treat, identify, or prevent harm from a
        condition that may result in adverse health consequences or
        death and may be caused by administering a drug or biological
        product that is used as described in subparagraph (A).
        "(3) The term 'Strategic National Stockpile' means the
      stockpile established under section 121(a) of the Public Health
      [Security] and Bioterrorism Preparedness and Response Act of 2002
      (42 U.S.C. 300hh-12(a)).
      "(f) Funding. - Of the amount authorized to be appropriated for
    the Department of Defense and available within the transfer
    authority established under section 1001 of this Act [117 Stat.
    1582] for fiscal year 2004 and for each fiscal year thereafter,
    such sums are authorized as may be necessary for the costs incurred
    by the Secretary in the procurement of countermeasures under this
    section."

       ENCOURAGEMENT OF SMALL BUSINESSES AND NONTRADITIONAL DEFENSE
        CONTRACTORS TO SUBMIT PROPOSALS POTENTIALLY BENEFICIAL FOR
                            COMBATING TERRORISM
      Pub. L. 107-314, div. A, title II, Sec. 244, Dec. 2, 2002, 116
    Stat. 2498, provided that during fiscal years 2003, 2004, and 2005,
    the Secretary of Defense, acting through the Under Secretary of
    Defense for Acquisition, Technology, and Logistics, was to carry
    out a program of outreach to small businesses and nontraditional
    defense contractors with the purpose of providing a process for
    reviewing and evaluating research activities of, and new
    technologies being developed by, small businesses and
    nontraditional defense contractors that had the potential for
    meeting a defense requirement or technology development goal of the
    Department of Defense that related to the mission of the Department
    of Defense to combat terrorism.

        PROCUREMENT OF ENVIRONMENTALLY PREFERABLE PROCUREMENT ITEMS    
      Pub. L. 107-314, div. A, title III, Sec. 314, Dec. 2, 2002, 116
    Stat. 2508, as amended by Pub. L. 109-163, div. A, title X, Sec.
    1056(e)(1), Jan. 6, 2006, 119 Stat. 3440, provided that:
      "(a) Tracking System. - The Secretary of Defense shall develop
    and implement an effective and efficient tracking system to
    identify the extent to which the Defense Logistics Agency procures
    environmentally preferable procurement items or procurement items
    made with recovered material. The system shall provide for the
    separate tracking, to the maximum extent practicable, of the
    procurement of each category of procurement items that, as of the
    date of the enactment of this Act [Dec. 2, 2002], has been
    determined to be environmentally preferable or made with recovered
    material.
      "(b) Assessment of Training and Education. - The Secretary of
    Defense shall assess the need to establish a program, or enhance
    existing programs, for training and educating Department of Defense
    procurement officials to ensure that they are aware of any
    Department requirements, preferences, or goals for the procurement
    of environmentally preferable procurement items or procurement
    items made with recovered material.
      "(c) Reporting Requirement. - Not later than March 1, 2004, and
    each March 1 thereafter through 2007, the Secretary of Defense
    shall submit to the Committee on Armed Services of the Senate and
    the Committee on Armed Services of the House of Representatives a
    report detailing the results obtained from the tracking system
    developed under subsection (a).
      "(d) Relation to Other Laws. - Nothing in this section shall be
    construed to alter the requirements of the Solid Waste Disposal Act
    (42 U.S.C. 6901 et seq.).
      "(e) Definitions. - In this section:
        "(1) The term 'environmentally preferable', in the case of a
      procurement item, means that the item has a lesser or reduced
      effect on human health and the environment when compared with
      competing products that serve the same purpose. The comparison
      may consider raw materials acquisition, production,
      manufacturing, packaging, distribution, reuse, operation,
      maintenance, or disposal of the product.
        "(2) The terms 'procurement item' and 'recovered material' have
      the meanings given such terms in section 1004 of the Solid Waste
      Disposal Act (42 U.S.C. 6903)."

         POLICY REGARDING ACQUISITION OF INFORMATION ASSURANCE AND
       INFORMATION ASSURANCE-ENABLED INFORMATION TECHNOLOGY PRODUCTS
      Pub. L. 107-314, div. A, title III, Sec. 352, Dec. 2, 2002, 116
    Stat. 2518, provided that:
      "(a) Establishment of Policy. - The Secretary of Defense shall
    establish a policy to limit the acquisition of information
    assurance and information assurance-enabled information technology
    products to those products that have been evaluated and validated
    in accordance with appropriate criteria, schemes, or programs.
      "(b) Waiver. - As part of the policy, the Secretary of Defense
    shall authorize specified officials of the Department of Defense to
    waive the limitations of the policy upon a determination in writing
    that application of the limitations to the acquisition of a
    particular information assurance or information assurance-enabled
    information technology product would not be in the national
    security interest of the United States.
      "(c) Implementation. - The Secretary of Defense shall ensure that
    the policy is uniformly implemented throughout the Department of
    Defense."

       LOGISTICS SUPPORT AND SERVICES FOR WEAPON SYSTEMS CONTRACTORS   
      Pub. L. 107-314, div. A, title III, Sec. 365, Dec. 2, 2002, 116
    Stat. 2520, as amended by Pub. L. 109-163, div. A, title III, Sec.
    331, Jan. 6, 2006, 119 Stat. 3195, provided that:
      "(a) Authority. - The Secretary of Defense may make available
    logistics support and logistics services to a contractor in support
    of the performance by the contractor of a contract for the
    construction, modification, or maintenance of a weapon system that
    is entered into by an official of the Department of Defense.
      "(b) Support Contracts. - Any logistics support and logistics
    services to be provided under this section to a contractor in
    support of the performance of a contract described in subsection
    (a) shall be provided under a separate contract that is entered
    into by the Director of the Defense Logistics Agency with that
    contractor. The requirements of section 2208(h) of title 10, United
    States Code, and the regulations prescribed pursuant to such
    section shall apply to the contract between the Director of the
    Defense Logistics Agency and the contractor.
      "(c) Scope of Support and Services. - The logistics support and
    logistics services that may be provided under this section in
    support of the performance of a contract described in subsection
    (a) are the distribution, disposal, and cataloging of materiel and
    repair parts necessary for the performance of that contract.
      "(d) Limitations. - (1) The number of contracts described in
    subsection (a) for which the Secretary of Defense makes logistics
    support and logistics services available under the authority of
    this section may not exceed five contracts. The total amount of the
    estimated costs of all such contracts for which logistics support
    and logistics services are made available under this section may
    not exceed $100,000,000.
      "(2) No contract entered into by the Director of the Defense
    Logistics Agency under subsection (b) may be for a period in excess
    of five years, including periods for which the contract is extended
    under options to extend the contract.
      "(e) Regulations. - Before exercising the authority under this
    section, the Secretary of Defense shall prescribe in regulations
    such requirements, conditions, and restrictions as the Secretary
    determines appropriate to ensure that logistics support and
    logistics services are provided under this section only when it is
    in the best interests of the United States to do so. The
    regulations shall include, at a minimum, the following:
        "(1) A requirement for the authority under this section to be
      used only for providing logistics support and logistics services
      in support of the performance of a contract that is entered into
      using competitive procedures (as defined in section 4 of the
      Office of Federal Procurement Policy Act (41 U.S.C. 403)).
        "(2) A requirement for the solicitation of offers for a
      contract described in subsection (a), for which logistics support
      and logistics services are to be made available under this
      section, to include - 
          "(A) a statement that the logistics support and logistics
        services are to be made available under the authority of this
        section to any contractor awarded the contract, but only on a
        basis that does not require acceptance of the support and
        services; and
          "(B) a description of the range of the logistics support and
        logistics services that are to be made available to the
        contractor.
        "(3) A requirement for the rates charged a contractor for
      logistics support and logistics services provided to a contractor
      under this section to reflect the full cost to the United States
      of the resources used in providing the support and services,
      including the costs of resources used, but not paid for, by the
      Department of Defense.
        "(4) With respect to a contract described in subsection (a)
      that is being performed for a department or agency outside the
      Department of Defense, a prohibition, in accordance with
      applicable contracting procedures, on the imposition of any
      charge on that department or agency for any effort of Department
      of Defense personnel or the contractor to correct deficiencies in
      the performance of such contract.
        "(5) A prohibition on the imposition of any charge on a
      contractor for any effort of the contractor to correct a
      deficiency in the performance of logistics support and logistics
      services provided to the contractor under this section.
      "(f) Relationship to Treaty Obligations. - The Secretary shall
    ensure that the exercise of authority under this section does not
    conflict with any obligation of the United States under any treaty
    or other international agreement.
      "(g) Termination of Authority. - (1) The authority provided in
    this section shall expire on September 30, 2010.
      "(2) The expiration of the authority under this section does not
    terminate - 
        "(A) any contract that was entered into by the Director of the
      Defense Logistics Agency under subsection (b) before the date
      specified in paragraph (1) or any obligation to provide logistics
      support and logistics services under that contract; or
        "(B) any authority to enter into a contract described in
      subsection (a) for which a solicitation of offers was issued in
      accordance with the regulations prescribed pursuant to subsection
      (e)(2) before the date specified in paragraph (1) or to provide
      logistics support and logistics services to the contractor with
      respect to that contract in accordance with this section."

               IMPROVEMENT OF SOFTWARE ACQUISITION PROCESSES           
      Pub. L. 107-314, div. A, title VIII, Sec. 804, Dec. 2, 2002, 116
    Stat. 2604, provided that:
      "(a) Establishment of Programs. - (1) The Secretary of each
    military department shall establish a program to improve the
    software acquisition processes of that military department.
      "(2) The head of each Defense Agency that manages a major defense
    acquisition program with a substantial software component shall
    establish a program to improve the software acquisition processes
    of that Defense Agency.
      "(3) The programs required by this subsection shall be
    established not later than 120 days after the date of the enactment
    of this Act [Dec. 2, 2002].
      "(b) Program Requirements. - A program to improve software
    acquisition processes under this section shall, at a minimum,
    include the following:
        "(1) A documented process for software acquisition planning,
      requirements development and management, project management and
      oversight, and risk management.
        "(2) Efforts to develop appropriate metrics for performance
      measurement and continual process improvement.
        "(3) A process to ensure that key program personnel have an
      appropriate level of experience or training in software
      acquisition.
        "(4) A process to ensure that each military department and
      Defense Agency implements and adheres to established processes
      and requirements relating to the acquisition of software.
      "(c) Department of Defense Guidance. - The Assistant Secretary of
    Defense for Command, Control, Communications, and Intelligence, in
    consultation with the Under Secretary of Defense for Acquisition,
    Technology, and Logistics, shall - 
        "(1) prescribe uniformly applicable guidance for the
      administration of all of the programs established under
      subsection (a) and take such actions as are necessary to ensure
      that the military departments and Defense Agencies comply with
      the guidance; and
        "(2) assist the Secretaries of the military departments and the
      heads of the Defense Agencies to carry out such programs
      effectively by - 
          "(A) ensuring that the criteria applicable to the selection
        of sources provides added emphasis on past performance of
        potential sources, as well as on the maturity of the software
        products offered by the potential sources; and
          "(B) identifying, and serving as a clearinghouse for
        information regarding, best practices in software development
        and acquisition in both the public and private sectors.
      "(d) Definitions. - In this section:
        "(1) The term 'Defense Agency' has the meaning given the term
      in section 101(a)(11) of title 10, United States Code.
        "(2) The term 'major defense acquisition program' has the
      meaning given such term in section 139(a)(2)(B) of title 10,
      United States Code."

                RAPID ACQUISITION AND DEPLOYMENT PROCEDURES            
      Pub. L. 107-314, div. A, title VIII, Sec. 806, Dec. 2, 2002, 116
    Stat. 2607, as amended by Pub. L. 108-136, div. A, title VIII, Sec.
    845, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108-375, div. A, title
    VIII, Sec. 811, Oct. 28, 2004, 118 Stat. 2012; Pub. L. 109-364,
    div. A, title X, Sec. 1071(h), Oct. 17, 2006, 120 Stat. 2403,
    provided that:
      "(a) Requirement To Establish Procedures. - Not later than 180
    days after the date of the enactment of this Act [Dec. 2, 2002],
    the Secretary of Defense shall prescribe procedures for the rapid
    acquisition and deployment of items that are - 
        "(1) currently under development by the Department of Defense
      or available from the commercial sector; and
        "(2) urgently needed to react to an enemy threat or to respond
      to significant and urgent safety situations.
      "(b) Issues To Be Addressed. - The procedures prescribed under
    subsection (a) shall include the following:
        "(1) A process for streamlined communications between the
      Chairman of the Joint Chiefs of Staff, the acquisition community,
      and the research and development community, including - 
          "(A) a process for the commanders of the combatant commands
        and the Joint Chiefs of Staff to communicate their needs to the
        acquisition community and the research and development
        community; and
          "(B) a process for the acquisition community and the research
        and development community to propose items that meet the needs
        communicated by the combatant commands and the Joint Chiefs of
        Staff.
        "(2) Procedures for demonstrating, rapidly acquiring, and
      deploying items proposed pursuant to paragraph (1)(B), including -
       
          "(A) a process for demonstrating performance and evaluating
        for current operational purposes the existing capability of an
        item;
          "(B) a process for developing an acquisition and funding
        strategy for the deployment of an item; and
          "(C) a process for making deployment determinations based on
        information obtained pursuant to subparagraphs (A) and (B).
      "(c) Response to Combat Emergencies. - (1) In the case of any
    equipment that, as determined in writing by the Secretary of
    Defense without delegation, is urgently needed to eliminate a
    combat capability deficiency that has resulted in combat
    fatalities, the Secretary shall use the procedures developed under
    this section in order to accomplish the rapid acquisition and
    deployment of the needed equipment.
      "(2)(A) Whenever the Secretary makes a determination under
    paragraph (1) that certain equipment is urgently needed to
    eliminate a combat capability deficiency that has resulted in
    combat fatalities, the Secretary shall designate a senior official
    of the Department of Defense to ensure that the needed equipment is
    acquired and deployed as quickly as possible, with a goal of
    awarding a contract for the acquisition of the equipment within 15
    days.
      "(B) Upon designation of a senior official under subparagraph
    (A), the Secretary shall authorize that official to waive any
    provision of law, policy, directive, or regulation described in
    subsection (d) that such official determines in writing would
    unnecessarily impede the rapid acquisition and deployment of the
    needed equipment. In a case in which the needed equipment cannot be
    acquired without an extensive delay, the senior official shall
    require that an interim solution be implemented and deployed using
    the procedures developed under this section to minimize the combat
    capability deficiency and combat fatalities.
      "(3) The authority of this section may not be used to acquire
    equipment in an amount aggregating more than $100,000,000 during
    any fiscal year. For acquisitions of equipment under this section
    during the fiscal year in which the Secretary makes the
    determination described in paragraph (1) with respect to such
    equipment, the Secretary may use any funds available to the
    Department of Defense for that fiscal year.
      "(4) The Secretary of Defense shall notify the congressional
    defense committees [Committees on Armed Services and Appropriations
    of the Senate and the House of Representatives] within 15 days
    after each determination made under paragraph (1). Each such notice
    shall identify - 
        "(A) the equipment to be acquired;
        "(B) the amount anticipated to be expended for the acquisition;
      and
        "(C) the source of funds for the acquisition.
      "(5) Any acquisition initiated under this subsection shall
    transition to the normal acquisition system not later than two
    years after the date on which the Secretary makes the determination
    described in paragraph (1) with respect to that equipment.
      "(d) Waiver of Certain Statutes and Regulations. - (1) Upon a
    determination described in subsection (c)(1), the senior official
    designated in accordance with subsection (c)(2) with respect to
    that designation is authorized to waive any provision of law,
    policy, directive or regulation addressing - 
        "(A) the establishment of the requirement for the equipment;
        "(B) the research, development, test, and evaluation of the
      equipment; or
        "(C) the solicitation and selection of sources, and the award
      of the contract, for procurement of the equipment.
      "(2) Nothing in this subsection authorizes the waiver of - 
        "(A) the requirements of this section or the regulations
      implementing this section; or
        "(B) any provision of law imposing civil or criminal penalties.
      "(e) Testing Requirement. - (1) The process for demonstrating
    performance and evaluating for current operational purposes the
    existing capability of an item prescribed under subsection
    (b)(2)(A) shall include - 
        "(A) an operational assessment in accordance with procedures
      prescribed by the Director of Operational Test and Evaluation;
      and
        "(B) a requirement to provide information about any deficiency
      of the item in meeting the original requirements for the item (as
      stated in an operational requirements document or similar
      document) to the deployment decisionmaking authority.
      "(2) The process may not include a requirement for any deficiency
    of an item to be the determining factor in deciding whether to
    deploy the item.
      "(3) If items are deployed under the rapid acquisition and
    deployment procedures prescribed pursuant to this section, or under
    any other authority, before the completion of operational test and
    evaluation of the items, the Director of Operational Test and
    Evaluation shall have access to operational records and data
    relevant to such items in accordance with section 139(e)(3) of
    title 10, United States Code, for the purpose of completing
    operational test and evaluation of the items. The access to the
    operational records and data shall be provided in a time and manner
    determined by the Secretary of Defense consistent with requirements
    of operational security and other relevant operational
    requirements.
      "(f) Limitation. - The quantity of items of a system procured
    using the procedures prescribed pursuant to this section may not
    exceed the number established for low-rate initial production for
    the system. Any such items shall be counted for purposes of the
    number of items of the system that may be procured through low-rate
    initial production."

      PROCUREMENT OF ALTERNATIVE FUELED AND HYBRID LIGHT DUTY TRUCKS  
      Pub. L. 107-107, div. A, title III, Sec. 318, Dec. 28, 2001, 115
    Stat. 1055, provided that:
      "(a) Defense Fleets Not Covered by Requirement in Energy Policy
    Act of 1992. - (1) The Secretary of Defense shall coordinate with
    the Administrator of General Services to ensure that only hybrid
    vehicles are procured by the Administrator for the Department of
    Defense fleet of light duty trucks that is not in a fleet of
    vehicles to which section 303 of the Energy Policy Act of 1992 (42
    U.S.C. 13212) applies.
      "(2) The Secretary, in consultation with the Administrator, may
    waive the policy regarding the procurement of hybrid vehicles in
    paragraph (1) to the extent that the Secretary determines necessary
    - 
        "(A) in the case of trucks that are exempt from the
      requirements of section 303 of the Energy Policy Act of 1992 for
      national security reasons under subsection (b)(3)(E) of such
      section, to meet specific requirements of the Department of
      Defense for capabilities of light duty trucks;
        "(B) to procure vehicles consistent with the standards
      applicable to the procurement of fleet vehicles for the Federal
      Government; or
        "(C) to adjust to limitations on the commercial availability of
      light duty trucks that are hybrid vehicles.
      "(3) This subsection applies with respect to procurements of
    light duty trucks in fiscal year 2005 and subsequent fiscal years.
      "(b) Requirement To Exceed Requirement in Energy Policy Act of
    1992. - (1) The Secretary of Defense shall coordinate with the
    Administrator of General Services to ensure that, of the light duty
    trucks procured in fiscal years after fiscal year 2004 for the
    fleets of light duty vehicles of the Department of Defense to which
    section 303 of the Energy Policy Act of 1992 [42 U.S.C. 13212]
    applies - 
        "(A) five percent of the total number of such trucks that are
      procured in each of fiscal years 2005 and 2006 are alternative
      fueled vehicles or hybrid vehicles; and
        "(B) ten percent of the total number of such trucks that are
      procured in each fiscal year after fiscal year 2006 are
      alternative fueled vehicles or hybrid vehicles.
      "(2) Light duty trucks acquired for the Department of Defense
    that are counted to comply with section 303 of the Energy Policy
    Act of 1992 for a fiscal year shall be counted to determine the
    total number of light duty trucks procured for the Department of
    Defense for that fiscal year for the purposes of paragraph (1), but
    shall not be counted to satisfy the requirement in that paragraph.
      "(c) Report on Plans for Implementation. - At the same time that
    the President submits the budget for fiscal year 2003 to Congress
    under section 1105(a) of title 31, United States Code, the
    Secretary shall submit to Congress a report summarizing the plans
    for carrying out subsections (a) and (b).
      "(d) Definitions. - In this section:
        "(1) The term 'hybrid vehicle' means a motor vehicle that draws
      propulsion energy from onboard sources of stored energy that are
      both - 
          "(A) an internal combustion or heat engine using combustible
        fuel; and
          "(B) a rechargeable energy storage system.
        "(2) The term 'alternative fueled vehicle' has the meaning
      given that term in section 301 of the Energy Policy Act of 1992
      (42 U.S.C. 13211)."

    TEMPORARY EMERGENCY PROCUREMENT AUTHORITY TO FACILITATE THE DEFENSE
            AGAINST TERRORISM OR BIOLOGICAL OR CHEMICAL ATTACK
      Pub. L. 107-107, div. A, title VIII, Sec. 836, Dec. 28, 2001, 115
    Stat. 1192, provided special authorities relating to increased
    flexibility for use of streamlined procedures and commercial item
    treatment for procurements of biotechnology to facilitate the
    defense against terrorism or biological or chemical attack which
    would be applicable to procurements for which funds had been
    obligated during fiscal years 2002 and 2003, directed the Secretary
    of Defense to submit to committees of Congress, not later than Mar.
    1, 2002, a report containing the Secretary's recommendations for
    additional emergency procurement authority that the Secretary had
    determined necessary to support operations carried out to combat
    terrorism, and provided that no contract could be entered into
    pursuant to such authority after Sept. 30, 2003.

                 IMPROVEMENTS IN PROCUREMENTS OF SERVICES             
      Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 821], Oct.
    30, 2000, 114 Stat. 1654, 1654A-217, as amended by Pub. L. 108-136,
    div. A, title XIV, Sec. 1431(c), Nov. 24, 2003, 117 Stat. 1672,
    provided that:
      "(a) Preference for Performance-Based Service Contracting. - Not
    later than 180 days after the date of the enactment of this Act
    [Oct. 30, 2000], the Federal Acquisition Regulation issued in
    accordance with sections 6 and 25 of the Office of Federal
    Procurement Policy Act (41 U.S.C. 405 and 421) shall be revised to
    establish a preference for use of contracts and task orders for the
    purchase of services in the following order of precedence:
        "(1) A performance-based contract or performance-based task
      order that contains firm fixed prices for the specific tasks to
      be performed.
        "(2) Any other performance-based contract or performance-based
      task order.
        "(3) Any contract or task order that is not a performance-based
      contract or a performance-based task order.
      "[(b) Repealed. Pub. L. 108-136, div. A, title XIV, Sec. 1431(c),
    Nov. 24, 2003, 117 Stat. 1672.]
      "(c) Centers of Excellence in Service Contracting. - Not later
    than 180 days after the date of the enactment of this Act [Oct. 30,
    2000], the Secretary of each military department shall establish at
    least one center of excellence in contracting for services. Each
    center of excellence shall assist the acquisition community by
    identifying, and serving as a clearinghouse for, best practices in
    contracting for services in the public and private sectors.
      "(d) Enhanced Training in Service Contracting. - (1) The
    Secretary of Defense shall ensure that classes focusing
    specifically on contracting for services are offered by the Defense
    Acquisition University and the Defense Systems Management College
    and are otherwise available to contracting personnel throughout the
    Department of Defense.
      "(2) The Secretary of each military department and the head of
    each Defense Agency shall ensure that the personnel of the
    department or agency, as the case may be, who are responsible for
    the awarding and management of contracts for services receive
    appropriate training that is focused specifically on contracting
    for services.
      "(e) Definitions. - In this section:
        "(1) The term 'performance-based', with respect to a contract,
      a task order, or contracting, means that the contract, task
      order, or contracting, respectively, includes the use of
      performance work statements that set forth contract requirements
      in clear, specific, and objective terms with measurable outcomes.
        "(2) The term 'commercial item' has the meaning given the term
      in section 4(12) of the Office of Federal Procurement Policy Act
      (41 U.S.C. 403(12)).
        "(3) The term 'Defense Agency' has the meaning given the term
      in section 101(a)(11) of title 10, United States Code."

      PROGRAM TO INCREASE BUSINESS INNOVATION IN DEFENSE ACQUISITION
                                 PROGRAMS
      Pub. L. 106-65, div. A, title VIII, Sec. 812(a)-(c), (e), Oct. 5,
    1999, 113 Stat. 709, 710, provided that:
      "(a) Requirement To Develop Plan. - Not later than March 1, 2000,
    the Secretary of Defense shall publish in the Federal Register for
    public comment a plan to provide for increased innovative
    technology for acquisition programs of the Department of Defense
    from commercial private sector entities, including small-business
    concerns.
      "(b) Implementation of Plan. - Not later than March 1, 2001, the
    Secretary of Defense shall implement the plan required by
    subsection (a), subject to any modifications the Secretary may
    choose to make in response to comments received.
      "(c) Elements of Plan. - The plan required by subsection (a)
    shall include, at a minimum, the following elements:
        "(1) Procedures through which commercial private sector
      entities, including small-business concerns, may submit proposals
      recommending cost-saving and innovative ideas to acquisition
      program managers.
        "(2) A review process designed to make recommendations on the
      merit and viability of the proposals submitted under paragraph
      (1) at appropriate times during the acquisition cycle.
        "(3) Measures to limit potential disruptions to existing
      contracts and programs from proposals accepted and incorporated
      into acquisition programs of the Department of Defense.
        "(4) Measures to ensure that research and development efforts
      of small-business concerns are considered as early as possible in
      a program's acquisition planning process to accommodate potential
      technology insertion without disruption to existing contracts and
      programs.
      "(e) Small-Business Concern Defined. - In this section, the term
    'small-business concern' has the same meaning as the meaning of
    such term as used in the Small Business Act (15 U.S.C. 631 et
    seq.)."

                       YEAR 2000 SOFTWARE CONVERSION                   
      Pub. L. 104-201, div. A, title VIII, Sec. 831, Sept. 23, 1996,
    110 Stat. 2615, directed the Secretary of Defense to ensure that
    all information technology acquired by the Department of Defense
    pursuant to contracts entered into after Sept. 30, 1996, would have
    the capabilities to process date and date-related data in 2000, and
    directed the Secretary to assess all information technology within
    the Department to determine the extent to which such technology
    would have the capabilities to operate effectively, and to submit
    to Congress a detailed plan for eliminating any deficiencies not
    later than Jan. 1, 1997.

                    DEFENSE FACILITY-WIDE PILOT PROGRAM                
      Section 822 of Pub. L. 104-106, as amended by Pub. L. 106-65,
    div. A, title X, Sec. 1067(6), Oct. 5, 1999, 113 Stat. 774,
    provided that:
      "(a) Authority To Conduct Defense Facility-Wide Pilot Program. -
    The Secretary of Defense may conduct a pilot program, to be known
    as the 'defense facility-wide pilot program', for the purpose of
    determining the potential for increasing the efficiency and
    effectiveness of the acquisition process in facilities by using
    commercial practices on a facility-wide basis.
      "(b) Designation of Participating Facilities. - (1) Subject to
    paragraph (2), the Secretary may designate up to two facilities as
    participants in the defense facility-wide pilot program.
      "(2) The Secretary may designate for participation in the pilot
    program only those facilities that are authorized to be so
    designated in a law authorizing appropriations for national defense
    programs that is enacted after the date of the enactment of this
    Act [Feb. 10, 1996].
      "(c) Scope of Program. - At a facility designated as a
    participant in the pilot program, the pilot program shall consist
    of the following:
        "(1) All contracts and subcontracts for defense supplies and
      services that are performed at the facility.
        "(2) All Department of Defense contracts and all subcontracts
      under Department of Defense contracts performed elsewhere that
      the Secretary determines are directly and substantially related
      to the production of defense supplies and services at the
      facility and are necessary for the pilot program.
      "(d) Criteria for Designation of Participating Facilities. - The
    Secretary shall establish criteria for selecting a facility for
    designation as a participant in the pilot program. In developing
    such criteria, the Secretary shall consider the following:
        "(1) The number of existing and anticipated contracts and
      subcontracts performed at the facility - 
          "(A) for which contractors are required to provide certified
        cost or pricing data pursuant to section 2306a of title 10,
        United States Code; and
          "(B) which are administered with the application of cost
        accounting standards under section 26(f) of the Office of
        Federal Procurement Policy Act (41 U.S.C. 422(f)).
        "(2) The relationship of the facility to other organizations
      and facilities performing under contracts with the Department of
      Defense and subcontracts under such contracts.
        "(3) The impact that the participation of the facility under
      the pilot program would have on competing domestic manufacturers.
        "(4) Such other factors as the Secretary considers appropriate.
      "(e) Notification. - (1) The Secretary shall transmit to the
    Committee on Armed Services of the Senate and the Committee on
    Armed Services of the House of Representatives a written
    notification of each facility proposed to be designated by the
    Secretary for participation in the pilot program.
      "(2) The Secretary shall include in the notification regarding a
    facility designated for participation in the program a management
    plan addressing the following:
        "(A) The proposed treatment of research and development
      contracts or subcontracts to be performed at the facility during
      the pilot program.
        "(B) The proposed treatment of the cost impact of the use of
      commercial practices on the award and administration of contracts
      and subcontracts performed at the facility.
        "(C) The proposed method for reimbursing the contractor for
      existing and new contracts.
        "(D) The proposed method for measuring the performance of the
      facility for meeting the management goals of the Secretary.
        "(E) Estimates of the annual amount and the total amount of the
      contracts and subcontracts covered under the pilot program.
      "(3)(A) The Secretary shall ensure that the management plan for a
    facility provides for attainment of the following objectives:
        "(i) A significant reduction of the cost to the Government for
      programs carried out at the facility.
        "(ii) A reduction of the schedule associated with programs
      carried out at the facility.
        "(iii) An increased use of commercial practices and procedures
      for programs carried out at the facility.
        "(iv) Protection of a domestic manufacturer competing for
      contracts at such facility from being placed at a significant
      competitive disadvantage by the participation of the facility in
      the pilot program.
      "(B) The management plan for a facility shall also require that
    all or substantially all of the contracts to be awarded and
    performed at the facility after the designation of that facility
    under subsection (b), and all or substantially all of the
    subcontracts to be awarded under those contracts and performed at
    the facility after the designation, be - 
        "(i) for the production of supplies or services on a firm-fixed
      price basis;
        "(ii) awarded without requiring the contractors or
      subcontractors to provide certified cost or pricing data pursuant
      to section 2306a of title 10, United States Code; and
        "(iii) awarded and administered without the application of cost
      accounting standards under section 26(f) of the Office of Federal
      Procurement Policy Act (41 U.S.C. 422(f)).
      "(f) Exemption From Certain Requirements. - In the case of a
    contract or subcontract that is to be performed at a facility
    designated for participation in the defense facility-wide pilot
    program and that is subject to section 2306a of title 10, United
    States Code, or section 26(f) of the Office of Federal Procurement
    Policy Act (41 U.S.C. 422(f)), the Secretary of Defense may exempt
    such contract or subcontract from the requirement to obtain
    certified cost or pricing data under such section 2306a or the
    requirement to apply mandatory cost accounting standards under such
    section 26(f) if the Secretary determines that the contract or
    subcontract - 
        "(1) is within the scope of the pilot program (as described in
      subsection (c)); and
        "(2) is fairly and reasonably priced based on information other
      than certified cost and pricing data.
      "(g) Special Authority. - The authority provided under subsection
    (a) includes authority for the Secretary of Defense - 
        "(1) to apply any amendment or repeal of a provision of law
      made in this Act [see Tables for classification] to the pilot
      program before the effective date of such amendment or repeal;
      and
        "(2) to apply to a procurement of items other than commercial
      items under such program - 
          "(A) the authority provided in section 34 of the Office of
        Federal Procurement Policy Act (41 U.S.C. 430) to waive a
        provision of law in the case of commercial items, and
          "(B) any exception applicable under this Act or the Federal
        Acquisition Streamlining Act of 1994 (Public Law 103-355) [see
        Tables for classification] (or an amendment made by a provision
        of either Act) in the case of commercial items,
      before the effective date of such provision (or amendment) to the
      extent that the Secretary determines necessary to test the
      application of such waiver or exception to procurements of items
      other than commercial items.
      "(h) Applicability. - (1) Subsections (f) and (g) apply to the
    following contracts, if such contracts are within the scope of the
    pilot program at a facility designated for the pilot program under
    subsection (b):
        "(A) A contract that is awarded or modified during the period
      described in paragraph (2).
        "(B) A contract that is awarded before the beginning of such
      period, that is to be performed (or may be performed), in whole
      or in part, during such period, and that may be modified as
      appropriate at no cost to the Government.
      "(2) The period referred to in paragraph (1), with respect to a
    facility designated under subsection (b), is the period that - 
        "(A) begins 45 days after the date of the enactment of the Act
      authorizing the designation of that facility in accordance with
      paragraph (2) of such subsection; and
        "(B) ends on September 30, 2000.
      "(i) Commercial Practices Encouraged. - With respect to contracts
    and subcontracts within the scope of the defense facility-wide
    pilot program, the Secretary of Defense may, to the extent the
    Secretary determines appropriate and in accordance with applicable
    law, adopt commercial practices in the administration of contracts
    and subcontracts. Such commercial practices may include the
    following:
        "(1) Substitution of commercial oversight and inspection
      procedures for Government audit and access to records.
        "(2) Incorporation of commercial oversight, inspection, and
      acceptance procedures.
        "(3) Use of alternative dispute resolution techniques
      (including arbitration).
        "(4) Elimination of contract provisions authorizing the
      Government to make unilateral changes to contracts."

    ELIMINATION OF USE OF CLASS I OZONE-DEPLETING SUBSTANCES IN CERTAIN
                      MILITARY PROCUREMENT CONTRACTS
      Section 326 of Pub. L. 102-484, as amended by Pub. L. 104-106,
    div. A, title XV, Secs. 1502(c)(2)(A), 1504(c)(1), Feb. 10, 1996,
    110 Stat. 506, 514; Pub. L. 106-65, div. A, title X, Sec. 1067(8),
    Oct. 5, 1999, 113 Stat. 774, provided that:
      "(a) Elimination of Use of Class I Ozone-Depleting Substances. -
    (1) No Department of Defense contract awarded after June 1, 1993,
    may include a specification or standard that requires the use of a
    class I ozone-depleting substance or that can be met only through
    the use of such a substance unless the inclusion of the
    specification or standard in the contract is approved by the senior
    acquisition official for the procurement covered by the contract.
    The senior acquisition official may grant the approval only if the
    senior acquisition official determines (based upon the
    certification of an appropriate technical representative of the
    official) that a suitable substitute for the class I ozone-
    depleting substance is not currently available.
      "(2)(A)(i) Not later than 60 days after the completion of the
    first modification, amendment, or extension after June 1, 1993, of
    a contract referred to in clause (ii), the senior acquisition
    official (or the designee of that official) shall carry out an
    evaluation of the contract in order to determine - 
        "(I) whether the contract includes a specification or standard
      that requires the use of a class I ozone-depleting substance or
      can be met only through the use of such a substance; and
        "(II) in the event of a determination that the contract
      includes such a specification or standard, whether the contract
      can be carried out through the use of an economically feasible
      substitute for the ozone-depleting substance or through the use
      of an economically feasible alternative technology for a
      technology involving the use of the ozone-depleting substance.
      "(ii) A contract referred to in clause (i) is any contract in an
    amount in excess of $10,000,000 that - 
        "(I) was awarded before June 1, 1993; and
        "(II) as a result of the modification, amendment, or extension
      described in clause (i), will expire more than 1 year after the
      effective date of the modification, amendment, or extension.
      "(iii) A contract under evaluation under clause (i) may not be
    further modified, amended, or extended until the evaluation
    described in that clause is complete.
      "(B) If the acquisition official (or designee) determines that an
    economically feasible substitute substance or alternative
    technology is available for use in a contract under evaluation, the
    appropriate contracting officer shall enter into negotiations to
    modify the contract to require the use of the substitute substance
    or alternative technology.
      "(C) A determination that a substitute substance or technology is
    not available for use in a contract under evaluation shall be made
    in writing by the senior acquisition official (or designee).
      "(D) The Secretary of Defense may, consistent with the Federal
    Acquisition Regulation, adjust the price of a contract modified
    under subparagraph (B) to take into account the use by the
    contractor of a substitute substance or alternative technology in
    the modified contract.
      "(3) The senior acquisition official authorized to grant an
    approval under paragraph (1) and the senior acquisition official
    and designees authorized to carry out an evaluation and make a
    determination under paragraph (2) shall be determined under
    regulations prescribed by the Secretary of Defense. A senior
    acquisition official may not delegate the authority provided in
    paragraph (1).
      "(4) Each official who grants an approval authorized under
    paragraph (1) or makes a determination under paragraph (2)(B) shall
    submit to the Secretary of Defense a report on that approval or
    determination, as the case may be, as follows:
        "(A) Beginning on October 1, 1993, and continuing for 8
      calendar quarters thereafter, by submitting a report on the
      approvals granted or determinations made under such authority
      during the preceding quarter not later than 30 days after the end
      of such quarter.
        "(B) Beginning on January 1, 1997, and continuing for 4 years
      thereafter, by submitting a report on the approvals granted or
      determinations made under such authority during the preceding
      year not later than 30 days after the end of such year.
      "(5) The Secretary shall promptly transmit to the Committee on
    Armed Services of the Senate and the Committee on Armed Services of
    the House of Representatives each report submitted to the Secretary
    under paragraph (4). The Secretary shall transmit the report in
    classified and unclassified forms.
      "(b) Cost Recovery. - In any case in which a Department of
    Defense contract is modified or a specification or standard for
    such a contract is waived at the request of a contractor in order
    to permit the contractor to use in the performance of the contract
    a substitute for a class I ozone-depleting substance or an
    alternative technology for a technology involving the use of a
    class I ozone-depleting substance, the Secretary of Defense may
    adjust the price of the contract in a manner consistent with the
    Federal Acquisition Regulation.
      "(c) Definitions. - In this section:
        "(1) The term 'class I ozone-depleting substance' means any
      substance listed under section 602(a) of the Clean Air Act (42
      U.S.C. 7671a(a)).
        "(2) The term 'Federal Acquisition Regulation' means the single
      Government-wide procurement regulation issued under section 25(c)
      of the Office of Federal Procurement Policy Act (41 U.S.C.
      421(c))."

           PAYMENT PROTECTIONS FOR SUBCONTRACTORS AND SUPPLIERS       
      Pub. L. 102-190, div. A, title VIII, Sec. 806, Dec. 5, 1991, 105
    Stat. 1417, as amended by Pub. L. 102-484, div. A, title X, Sec.
    1053(5), Oct. 23, 1992, 106 Stat. 2502; Pub. L. 103-355, title II,
    Sec. 2091, title VIII, Sec. 8105(k), Oct. 13, 1994, 108 Stat. 3306,
    3393, provided that:
      "(a) Regulations. - The Secretary of Defense shall prescribe in
    regulations the following requirements:
        "(1) Information provided by department of defense relating to
      payment. - (A) Subject to section 552(b)(1) of title 5, United
      States Code, upon the request of a subcontractor or supplier of a
      contractor performing a Department of Defense contract, the
      Department of Defense shall promptly make available to such
      subcontractor or supplier the following information:
          "(i) Whether requests for progress payments or other payments
        have been submitted by the contractor to the Department of
        Defense in connection with that contract.
          "(ii) Whether final payment to the contractor has been made
        by the Department of Defense in connection with that contract.
        "(B) This paragraph shall apply with respect to any Department
      of Defense contract that is in effect on the date which is 270
      days after the date of enactment of this Act [Dec. 5, 1991] or
      that is awarded after such date.
        "(2) Information provided by department of defense relating to
      payment bonds. - (A) Upon the request of a subcontractor or
      supplier described in subparagraph (B), the Department of Defense
      shall promptly make available to such subcontractor or supplier
      any of the following:
          "(i) The name and address of the surety or sureties on the
        payment bond.
          "(ii) The penal amount of the payment bond.
          "(iii) A copy of the payment bond.
        "(B) Subparagraph (A) applies to - 
          "(i) a subcontractor or supplier having a subcontract,
        purchase order, or other agreement to furnish labor or material
        for the performance of a Department of Defense contract with
        respect to which a payment bond has been furnished to the
        United States pursuant to the Miller Act; and
          "(ii) a prospective subcontractor or supplier offering to
        furnish labor or material for the performance of such a
        Department of Defense contract.
        "(C) With respect to the information referred to in
      subparagraphs (A)(i) and (A)(ii), the regulations shall include
      authority for such information to be provided verbally to the
      subcontractor or supplier.
        "(D) With respect to the information referred to in
      subparagraph (A)(iii), the regulations may impose reasonable fees
      to cover the cost of copying and providing requested bonds.
        "(E) This paragraph shall apply with respect to any Department
      of Defense contract covered by the Miller Act that is in effect
      on the date which is 270 days after the date of enactment of this
      Act [Dec. 5, 1991] or that is awarded after such date.
        "(3) Information provided by contractors relating to payment
      bonds. - (A) Upon the request of a prospective subcontractor or
      supplier offering to furnish labor or material for the
      performance of a Department of Defense contract with respect to
      which a payment bond has been furnished to the United States
      pursuant to the Miller Act, the contractor shall promptly make
      available to such prospective subcontractor or supplier a copy of
      the payment bond.
        "(B) This paragraph shall apply with respect to any Department
      of Defense contract covered by the Miller Act for which a
      solicitation is issued after the expiration of the 60-day period
      beginning on the effective date of the regulations promulgated
      under this subsection.
        "(4) Procedures relating to compliance with payment terms. -
      (A) Under procedures established in the regulations, upon the
      assertion by a subcontractor or supplier of a contractor
      performing a Department of Defense contract that the
      subcontractor or supplier has not been paid by the prime
      contractor in accordance with the payment terms of the
      subcontract, purchase order, or other agreement with the prime
      contractor, the contracting officer may determine the following:
          "(i) With respect to a construction contract, whether the
        contractor has made progress payments to the subcontractor or
        supplier in compliance with chapter 39 of title 31, United
        States Code.
          "(ii) With respect to a contract other than a construction
        contract, whether the contractor has made progress or other
        payments to the subcontractor or supplier in compliance with
        the terms of the subcontract, purchase order, or other
        agreement with the prime contractor.
          "(iii) With respect to either a construction contract or a
        contract other than a construction contract, whether the
        contractor has made final payment to the subcontractor or
        supplier in compliance with the terms of the subcontract,
        purchase order, or other agreement with the prime contractor.
          "(iv) With respect to either a construction contract or a
        contract other than a construction contract, whether any
        certification of payment of the subcontractor or supplier
        accompanying the contractor's payment request to the Government
        is accurate.
        "(B) If the contracting officer determines that the prime
      contractor is not in compliance with any matter referred to in
      clause (i), (ii), or (iii) of subparagraph (A), the contracting
      officer may, under procedures established in the regulations - 
          "(i) encourage the prime contractor to make timely payment to
        the subcontractor or supplier; or
          "(ii) reduce or suspend progress payments with respect to
        amounts due to the prime contractor.
        "(C) If the contracting officer determines that a certification
      referred to in clause (iv) of subparagraph (A) is inaccurate in
      any material respect, the contracting officer shall, under
      procedures established in the regulations, initiate appropriate
      administrative or other remedial action.
        "(D) This paragraph shall apply with respect to any Department
      of Defense contract that is in effect on the date of promulgation
      of the regulations under this subsection or that is awarded after
      such date.
      "(b) Inapplicability to Certain Contracts. - Regulations
    prescribed under this section shall not apply to a contract for the
    acquisition of commercial items (as defined in section 4(12) of the
    Office of Federal Procurement Policy Act [41 U.S.C. 403(12)]).
      "(c) Government-Wide Applicability. - The Federal Acquisition
    Regulatory Council (established by section 25(a) of the Office of
    Federal Procurement Policy Act) shall modify the Federal
    Acquisition Regulation (issued pursuant to section 25(c)(1) of the
    Office of Federal Procurement Policy Act (41 U.S.C. 421(c)(1)) to
    apply Government-wide the requirements that the Secretary is
    required under subsection (a) to prescribe in regulations
    applicable with respect to the Department of Defense contracts.
      "(d) Assistance to Small Business Concerns. - [Amended section
    15(k)(5) of the Small Business Act (15 U.S.C. 644(k)(5)).]
      "(e) GAO Report. - (1) The Comptroller General of the United
    States shall conduct an assessment of the matters described in
    paragraph (2) and submit a report pursuant to paragraph (3).
      "(2) In addition to such other related matters as the Comptroller
    General considers appropriate, the matters to be assessed pursuant
    to paragraph (1) are the following:
        "(A) Timely payment of progress or other periodic payments to
      subcontractors and suppliers by prime contractors on Federal
      contracts by - 
          "(i) identifying all existing statutory and regulatory
        provisions, categorized by types of contracts covered by such
        provisions;
          "(ii) evaluating the feasibility and desirability of
        requiring that a prime contractor (other than a construction
        prime contractor subject to the provisions of sections 3903(b)
        and 3905 of title 31, United States Code) be required to - 
            "(I) include in its subcontracts a payment term requiring
          payment within 7 days (or some other fixed term) after
          receiving payment from the Government; and
            "(II) submit with its payment request to the Government a
          certification that it has timely paid its subcontractors in
          accordance with their subcontracts from funds previously
          received as progress payments and will timely make required
          payments to such subcontractors from the proceeds of the
          progress payment covered by the certification;
          "(iii) evaluating the feasibility and desirability of
        requiring that all prime contractors (other than a construction
        prime contractor subject to the provisions of sections 3903(b)
        and 3905 of title 31, United States Code) furnish with its
        payment request to the Government proof of payment of the
        amounts included in such payment request for payments made to
        subcontractors and suppliers;
          "(iv) evaluating the feasibility and desirability of
        requiring a prime contractor to establish an escrow account at
        a federally insured financial institution and requiring direct
        disbursements to subcontractors and suppliers of amounts
        certified by the prime contractor in its payment request to the
        Government as being payable to such subcontractors and
        suppliers in accordance with their subcontracts; and
          "(v) evaluating the feasibility and desirability of requiring
        direct disbursement of amounts certified by a prime contractor
        as being payable to its subcontractors and suppliers in
        accordance with their subcontracts (using techniques such as
        joint payee checks, escrow accounts, or direct payment by the
        Government), if the contracting officer has determined that the
        prime contractor is failing to make timely payments to its
        subcontractors and suppliers.
        "(B) Payment protection of subcontractors and suppliers through
      the use of payment bonds or alternatives methods by - 
          "(i) evaluating the effectiveness of the modifications to
        part 28.2 of the Federal Acquisition Regulation Part 28.2 (48
        C.F.R. 28.200) relating to the use of individual sureties,
        which became effective February 26, 1990;
          "(ii) evaluating the effectiveness of requiring payment bonds
        pursuant to the Miller Act as a means of affording protection
        to construction subcontractors and suppliers relating to
        receiving - 
            "(I) timely payment of progress payments due in accordance
          with their subcontracts; and
            "(II) ultimate payment of such amounts due;
          "(iii) evaluating the feasibility and desirability of
        increasing the payment bond amounts required under the Miller
        Act from the current maximum amounts to an amount equal to 100
        percent of the amount of the contract;
          "(iv) evaluating the feasibility and desirability of
        requiring payment bonds for supply and services contracts
        (other than construction), and, if feasible and desirable, the
        amounts of such bonds; and
          "(v) evaluating the feasibility and desirability of using
        letters of credit issued by federally insured financial
        institutions (or other alternatives) as substitutes for payment
        bonds in providing payment protection to subcontractors and
        suppliers on construction contracts (and other contracts).
        "(C) Any evaluation of feasibility and desirability carried out
      pursuant to subparagraph (A) or (B) shall include the
      appropriateness of - 
          "(i) any differential treatment of, or impact on, small
        business concerns as opposed to concerns other than small
        business concerns;
          "(ii) any differential treatment of subcontracts relating to
        commercial products entered into by the contractor in
        furtherance of its non-Government business, especially those
        subcontracts entered into prior to the award of a contract by
        the Government; and
          "(iii) extending the protections regarding payment to all
        tiers of subcontractors or restricting them to first-tier
        subcontractors and direct suppliers.
      "(3) The report required by paragraph (1) shall include a
    description of the results of the assessment carried out pursuant
    to paragraph (2) and may include recommendations pertaining to any
    of the following:
        "(A) Statutory and regulatory changes providing payment
      protections for subcontractors and suppliers (other than a
      construction prime contractor subject to the provisions of
      sections 3903(b) and 3905 of title 31, United States Code) that
      the Comptroller General believes to be desirable and feasible.
        "(B) Proposals to assess the desirability and utility of a
      specific payment protection on a test basis.
        "(C) Such other recommendations as the Comptroller General
      considers appropriate in light of the matters assessed pursuant
      to paragraph (2).
      "(4) The report required by paragraph (1) shall be submitted not
    later than by February 1, 1993, to the Committees on Armed Services
    and on Small Business [now the Committee on Small Business and
    Entrepreneurship of the Senate] of the Senate and House of
    Representatives.
      "(f) Inspector General Report. - (1) The Inspector General of the
    Department of Defense shall submit to the Secretary of Defense a
    report on payment protections for subcontractors and suppliers
    under contracts entered into with the Department of Defense. The
    report shall include an assessment of the extent to which available
    judicial and administrative remedies, as well as suspension and
    debarment procedures, have been used (or recommended for use) by
    officials of the Department to deter false statements relating to
    (A) payment bonds provided by individuals pursuant to the Miller
    Act, and (B) certifications pertaining to payment requests by
    construction contractors pursuant to section 3903(b) of title 31,
    United States Code. The assessment shall cover actions taken during
    the period beginning on October 1, 1989, and ending on September
    30, 1992.
      "(2) The report required by paragraph (1) shall be submitted to
    the Secretary of Defense not later than March 1, 1993. The report
    may include recommendations by the Inspector General on ways to
    improve the effectiveness of existing methods of preventing false
    statements.
      "(g) Miller Act Defined. - For purposes of this section, the term
    'Miller Act' means the Act of August 24, 1935 (40 U.S.C. 270a-270d)
    [now 40 U.S.C. 3131, 3133]."

       ADVISORY PANEL ON STREAMLINING AND CODIFYING ACQUISITION LAWS   
      Pub. L. 101-510, div. A, title VIII, Sec. 800, Nov. 5, 1990, 104
    Stat. 1587, as amended by Pub. L. 103-160, div. A, title IX, Sec.
    904(f), Nov. 30, 1993, 107 Stat. 1729, directed Under Secretary of
    Defense for Acquisition and Technology, not later than Jan. 15,
    1991, to establish under sponsorship of Defense Systems Management
    College an advisory panel on streamlining and codifying acquisition
    laws, to review the acquisition laws applicable to Department of
    Defense with a view toward streamlining the defense acquisition
    process, to make any recommendations for repeal or amendment of
    such laws that the panel considers necessary, as a result of such
    review, and to prepare a proposed code of relevant acquisition
    laws, directed the advisory panel, not later than Dec. 15, 1992, to
    transmit a final report on the actions of the panel to the Under
    Secretary of Defense for Acquisition and Technology, and directed
    the Secretary of Defense, not later than Jan. 15, 1993, to transmit
    the final report, together with such comments as he deems
    appropriate, to Congress.

                       MENTOR-PROTEGE PILOT PROGRAM                   
      Pub. L. 106-65, div. A, title VIII, Sec. 811(d)(2), (3), Oct. 5,
    1999, 113 Stat. 708, 709, as amended by Pub. L. 107-107, div. A,
    title X, Sec. 1048(g)(5), Dec. 28, 2001, 115 Stat. 1228, directed
    the Secretary of Defense to conduct a review of the Mentor-Protege
    Program established in Pub. L. 101-510, Sec. 831, set out below, to
    assess the feasibility of transitioning such program to operation
    without a specific appropriation or authority to provide
    reimbursement to a mentor firm and to assess additional incentives
    that could be extended to mentor firms to ensure adequate support
    and participation in the Program, directed the Secretary to submit
    to committees of Congress a report on the results of the review and
    recommendations not later than Sept. 30, 2000, and directed the
    Comptroller General to conduct a study on the implementation of the
    Program and the extent to which the Program was achieving its
    purposes in a cost-effective manner and to submit to committees of
    Congress a report on the results of the study not later than Jan.
    1, 2002.
      Pub. L. 102-484, div. A, title VIII, Sec. 807(a), Oct. 23, 1992,
    106 Stat. 2448, directed the Secretary of Defense, within 15 days
    after Oct. 23, 1992, to publish in the Department of Defense
    Supplement to the Federal Acquisition Regulation the Department of
    Defense policy for the pilot Mentor-Protege Program and the
    regulations, directives, and administrative guidance pertaining to
    such program as such policy, regulations, directives, and
    administrative guidance had existed on Dec. 6, 1991, and directed
    that proposed modifications to that policy and any amendments
    proposed in order to implement any of the amendments made by this
    section, amending Pub. L. 101-510, Sec. 831, set out below, were to
    be published in final form within 120 days after Oct. 23, 1992.

      Pub. L. 101-510, div. A, title VIII, Sec. 831, Nov. 5, 1990, 104
    Stat. 1607, as amended by Pub. L. 102-25, title VII, Sec. 704(c),
    Apr. 6, 1991, 105 Stat. 119; Pub. L. 102-172, title VIII, Sec.
    8064A, Nov. 26, 1991, 105 Stat. 1186; Pub. L. 102-190, div. A,
    title VIII, Sec. 814(b), Dec. 5, 1991, 105 Stat. 1425; Pub. L. 102-
    484, div. A, title VIII, Secs. 801(h)(4), 807(b)(1), title X, Sec.
    1054(d), Oct. 23, 1992, 106 Stat. 2445, 2448, 2503; Pub. L. 103-
    160, div. A, title VIII, Sec. 813(b)(1), (c), Nov. 30, 1993, 107
    Stat. 1703; Pub. L. 104-106, div. A, title VIII, Sec. 824, Feb. 10,
    1996, 110 Stat. 399; Pub. L. 104-201, div. A, title VIII, Sec. 802,
    Sept. 23, 1996, 110 Stat. 2604; Pub. L. 105-85, div. A, title VIII,
    Sec. 821(a), title X, Sec. 1073(c)(6), Nov. 18, 1997, 111 Stat.
    1840, 1904; Pub. L. 106-65, div. A, title VIII, Sec. 811(a)-(d)(1),
    (e), Oct. 5, 1999, 113 Stat. 706, 707, 709; Pub. L. 106-398, Sec. 1
    [[div. A], title VIII, Sec. 807], Oct. 30, 2000, 114 Stat. 1654,
    1654A-208; Pub. L. 107-107, div. A, title VIII, Sec. 812, Dec. 28,
    2001, 115 Stat. 1181; Pub. L. 108-375, div. A, title VIII, Secs.
    841(a), (b), 842, Oct. 28, 2004, 118 Stat. 2018, 2019, provided
    that:
      "(a) Establishment of Pilot Program. - The Secretary of Defense
    shall establish a pilot program to be known as the 'Mentor-Protege
    Program'.
      "(b) Purpose. - The purpose of the program is to provide
    incentives for major Department of Defense contractors to furnish
    disadvantaged small business concerns with assistance designed to
    enhance the capabilities of disadvantaged small business concerns
    to perform as subcontractors and suppliers under Department of
    Defense contracts and other contracts and subcontracts in order to
    increase the participation of such business concerns as
    subcontractors and suppliers under Department of Defense contracts,
    other Federal Government contracts, and commercial contracts.
      "(c) Program Participants. - (1) A business concern meeting the
    eligibility requirements set out in subsection (d) may enter into
    agreements under subsection (e) and furnish assistance to
    disadvantaged small business concerns upon making application to
    the Secretary of Defense and being approved for participation in
    the pilot program by the Secretary. A business concern
    participating in the pilot program pursuant to such an approval
    shall be known, for the purposes of the program, as a 'mentor
    firm'.
      "(2) A disadvantaged small business concern eligible for the
    award of Federal contracts may obtain assistance from a mentor firm
    upon entering into an agreement with the mentor firm as provided in
    subsection (e). A disadvantaged small business concern may not be a
    party to more than one agreement to receive such assistance at any
    time. A disadvantaged small business concern receiving such
    assistance shall be known, for the purposes of the program, as a
    'protege firm'.
      "(3) In entering into an agreement pursuant to subsection (e), a
    mentor firm may rely in good faith on a written representation of a
    business concern that such business concern is a disadvantaged
    small business concern. The Small Business Administration shall
    determine the status of such business concern as a disadvantaged
    small business concern in the event of a protest regarding the
    status of such business concern. If at any time the business
    concern is determined by the Small Business Administration not to
    be a disadvantaged small business concern, assistance furnished
    such business concern by the mentor firm after the date of the
    determination may not be considered assistance furnished under the
    program.
      "(d) Mentor Firm Eligibility. - Subject to subsection (c)(1), a
    mentor firm eligible for award of Federal contracts may enter into
    an agreement with one or more protege firms under subsection (e)
    and provide assistance under the program pursuant to that agreement
    if - 
        "(1) during the fiscal year preceding the fiscal year in which
      the mentor firm enters into the agreement, the total amount of
      the Department of Defense contracts awarded such mentor firm and
      the subcontracts awarded such mentor firm under Department of
      Defense contracts was equal to or greater than $100,000,000; or
        "(2) the mentor firm demonstrates the capability to assist in
      the development of protege firms, and is approved by the
      Secretary of Defense pursuant to criteria specified in the
      regulations prescribed pursuant to subsection (k).
      "(e) Mentor-Protege Agreement. - Before providing assistance to a
    protege firm under the program, a mentor firm shall enter into a
    mentor-protege agreement with the protege firm regarding the
    assistance to be provided by the mentor firm. The agreement shall
    include the following:
        "(1) A developmental program for the protege firm, in such
      detail as may be reasonable, including (A) factors to assess the
      protege firm's developmental progress under the program, and (B)
      the anticipated number and type of subcontracts to be awarded the
      protege firm.
        "(2) A program participation term for any period of not more
      than three years, except that the term may be a period of up to
      five years if the Secretary of Defense determines in writing that
      unusual circumstances justify a program participation term in
      excess of three years.
        "(3) Procedures for the protege firm to terminate the agreement
      voluntarily and for the mentor firm to terminate the agreement
      for cause.
      "(f) Forms of Assistance. - A mentor firm may provide a protege
    firm the following:
        "(1) Assistance, by using mentor firm personnel, in - 
          "(A) general business management, including organizational
        management, financial management, and personnel management,
        marketing, business development, and overall business planning;
          "(B) engineering and technical matters such as production,
        inventory control, and quality assurance; and
          "(C) any other assistance designed to develop the
        capabilities of the protege firm under the developmental
        program referred to in subsection (e).
        "(2) Award of subcontracts on a noncompetitive basis to the
      protege firm under the Department of Defense or other contracts.
        "(3) Payment of progress payments for performance of the
      protege firm under such a subcontract in amounts as provided for
      in the subcontract, but in no event may any such progress payment
      exceed 100 percent of the costs incurred by the protege firm for
      the performance.
        "(4) Advance payments under such subcontracts.
        "(5) Loans.
        "(6) Cash in exchange for an ownership interest in the protege
      firm, not to exceed 10 percent of the total ownership interest.
        "(7) Assistance obtained by the mentor firm for the protege
      firm from one or more of the following - 
          "(A) small business development centers established pursuant
        to section 21 of the Small Business Act (15 U.S.C. 648);
          "(B) entities providing procurement technical assistance
        pursuant to chapter 142 of title 10, United States Code; or
          "(C) a historically Black college or university or a minority
        institution of higher education.
      "(g) Incentives for Mentor Firms. - (1) The Secretary of Defense
    may provide to a mentor firm reimbursement for the total amount of
    any progress payment or advance payment made under the program by
    the mentor firm to a protege firm in connection with a Department
    of Defense contract awarded the mentor firm.
      "(2)(A) The Secretary of Defense may provide to a mentor firm
    reimbursement for the costs of the assistance furnished to a
    protege firm pursuant to paragraphs (1) and (7) of subsection (f)
    as provided for in a line item in a Department of Defense contract
    under which the mentor firm is furnishing products or services to
    the Department, subject to a maximum amount of reimbursement
    specified in such contract, except that this sentence does not
    apply in a case in which the Secretary of Defense determines in
    writing that unusual circumstances justify reimbursement using a
    separate contract.
      "(B) The determinations made in annual performance reviews of a
    mentor firm's mentor-protege agreement under subsection (l)(2)
    shall be a major factor in the determinations of amounts of
    reimbursement, if any, that the mentor firm is eligible to receive
    in the remaining years of the program participation term under the
    agreement.
      "(C) The total amount reimbursed under this paragraph to a mentor
    firm for costs of assistance furnished in a fiscal year to a
    protege firm may not exceed $1,000,000, except in a case in which
    the Secretary of Defense determines in writing that unusual
    circumstances justify a reimbursement of a higher amount.
      "(3)(A) Costs incurred by a mentor firm in providing assistance
    to a protege firm that are not reimbursed pursuant to paragraph (2)
    shall be recognized as credit in lieu of subcontract awards for
    purposes of determining whether the mentor firm attains a
    subcontracting participation goal applicable to such mentor firm
    under a Department of Defense contract, under a contract with
    another executive agency, or under a divisional or company-wide
    subcontracting plan negotiated with the Department of Defense or
    another executive agency.
      "(B) The amount of the credit given a mentor firm for any such
    unreimbursed costs shall be equal to - 
        "(i) four times the total amount of such costs attributable to
      assistance provided by entities described in subsection (f)(7);
        "(ii) three times the total amount of such costs attributable
      to assistance furnished by the mentor firm's employees; and
        "(iii) two times the total amount of any other such costs.
      "(C) Under regulations prescribed pursuant to subsection (k), the
    Secretary of Defense shall adjust the amount of credit given a
    mentor firm pursuant to subparagraphs (A) and (B) if the Secretary
    determines that the firm's performance regarding the award of
    subcontracts to disadvantaged small business concerns has declined
    without justifiable cause.
      "(4) A mentor firm shall receive credit toward the attainment of
    a subcontracting participation goal applicable to such mentor firm
    for each subcontract for a product or service awarded under such
    contract by a mentor firm to a business concern that, except for
    its size, would be a small business concern owned and controlled by
    socially and economically disadvantaged individuals, but only if - 
        "(A) the size of such business concern is not more than two
      times the maximum size specified by the Administrator of the
      Small Business Administration for purposes of determining whether
      a business concern furnishing such product or service is a small
      business concern; and
        "(B) the business concern formerly had a mentor-protege
      agreement with such mentor firm that was not terminated for
      cause.
      "(h) Relationship to Small Business Act. - (1) For purposes of
    the Small Business Act [15 U.S.C. 631 et seq.], no determination of
    affiliation or control (either direct or indirect) may be found
    between a protege firm and its mentor firm on the basis that the
    mentor firm has agreed to furnish (or has furnished) to its protege
    firm pursuant to a mentor-protege agreement any form of
    developmental assistance described in subsection (f).
      "(2) Notwithstanding section 8 of the Small Business Act (15
    U.S.C. 637), the Small Business Administration may not determine a
    disadvantaged small business concern to be ineligible to receive
    any assistance authorized under the Small Business Act on the basis
    that such business concern has participated in the Mentor-Protege
    Program or has received assistance pursuant to any developmental
    assistance agreement authorized under such program.
      "(3) The Small Business Administration may not require a firm
    that is entering into, or has entered into, an agreement under
    subsection (e) as a protege firm to submit the agreement, or any
    other document required by the Secretary of Defense in the
    administration of the Mentor-Protege Program, to the Small Business
    Administration for review, approval, or any other purpose.
      "(i) Participation in Mentor-Protege Program not To Be a
    Condition for Award of a Contract or Subcontract. - A mentor firm
    may not require a business concern to enter into an agreement with
    the mentor firm pursuant to subsection (e) as a condition for being
    awarded a contract by the mentor firm, including a subcontract
    under a contract awarded to the mentor firm.
      "(j) Expiration of Authority. - (1) No mentor-protege agreement
    may be entered into under subsection (e) after September 30, 2010.
      "(2) No reimbursement may be paid, and no credit toward the
    attainment of a subcontracting goal may be granted, under
    subsection (g) for any cost incurred after September 30, 2013.
      "(k) Regulations. - The Secretary of Defense shall prescribe
    regulations to carry out the pilot Mentor-Protege Program. Such
    regulations shall include the requirements set forth in section
    8(d) of the Small Business Act (15 U.S.C. 637(d)) and shall
    prescribe procedures by which mentor firms may terminate
    participation in the program. The Secretary shall publish the
    proposed regulations not later than the date 180 days after the
    date of the enactment of this Act [Nov. 5, 1990]. The Secretary
    shall promulgate the final regulations not later than the date 270
    days after the date of the enactment of this Act. The Department of
    Defense policy regarding the pilot Mentor-Protege Program shall be
    published and maintained as an appendix to the Department of
    Defense Supplement to the Federal Acquisition Regulation.
      "(l) Reports and Reviews. - (1) The mentor firm and protege firm
    under a mentor-protege agreement shall submit to the Secretary of
    Defense an annual report on the progress made by the protege firm
    in employment, revenues, and participation in Department of Defense
    contracts during the fiscal year covered by the report. The
    requirement for submission of an annual report applies with respect
    to each fiscal year covered by the program participation term under
    the agreement and each of the two fiscal years following the
    expiration of the program participation term. The Secretary shall
    prescribe the timing and form of the annual report.
      "(2)(A) The Secretary shall conduct an annual performance review
    of each mentor-protege agreement that provides for reimbursement of
    costs. The Secretary shall determine on the basis of the review
    whether - 
        "(i) all costs reimbursed to the mentor firm under the
      agreement were reasonably incurred to furnish assistance to the
      protege firm in accordance with the requirements of this section
      and applicable regulations; and
        "(ii) the mentor firm and protege firm accurately reported
      progress made by the protege firm in employment, revenues, and
      participation in Department of Defense contracts during the
      program participation term covered by the mentor-protege
      agreement and the two fiscal years following the expiration of
      the program participation term.
      "(B) The Secretary shall act through the Commander of the Defense
    Contract Management Command in carrying out the reviews and making
    the determinations under subparagraph (A).
      "(3) Not later than 6 months after the end of each of fiscal
    years 2000 through 2010, the Secretary of Defense shall submit to
    Congress an annual report on the Mentor-Protege Program for that
    fiscal year.
      "(4) The annual report for a fiscal year shall include, at a
    minimum, the following:
        "(A) The number of mentor-protege agreements that were entered
      into during the fiscal year.
        "(B) The number of mentor-protege agreements that were in
      effect during the fiscal year.
        "(C) The total amount reimbursed to mentor firms pursuant to
      subsection (g) during the fiscal year.
        "(D) Each mentor-protege agreement, if any, that was approved
      during the fiscal year in accordance with subsection (e)(2) to
      provide a program participation term in excess of 3 years,
      together with the justification for the approval.
        "(E) Each reimbursement of a mentor firm in excess of the
      limitation in subsection (g)(2)(C) that was made during the
      fiscal year pursuant to an approval granted in accordance with
      that subsection, together with the justification for the
      approval.
        "(F) Trends in the progress made in employment, revenues, and
      participation in Department of Defense contracts by the protege
      firms participating in the program during the fiscal year and the
      protege firms that completed or otherwise terminated
      participation in the program during the preceding two fiscal
      years.
      "(m) Definitions. - In this section:
        "(1) The term 'small business concern' means a business concern
      that meets the requirements of section 3(a) of the Small Business
      Act (15 U.S.C. 632(a)) and the regulations promulgated pursuant
      thereto.
        "(2) The term 'disadvantaged small business concern' means:
          "(A) a small business concern owned and controlled by
        socially and economically disadvantaged individuals;
          "(B) a business entity owned and controlled by an Indian
        tribe as defined by section 8(a)(13) of the Small Business Act
        (15 U.S.C. 637(a)(13));
          "(C) a business entity owned and controlled by a Native
        Hawaiian Organization as defined by section 8(a)(15) of the
        Small Business Act (15 U.S.C. 637(a)(15));
          "(D) a qualified organization employing the severely
        disabled;
          "(E) a small business concern owned and controlled by women,
        as defined in section 8(d)(3)(D) of the Small Business Act (15
        U.S.C. 637(d)(3)(D));
          "(F) a small business concern owned and controlled by service-
        disabled veterans (as defined in section 8(d)(3) of the Small
        Business Act [15 U.S.C. 637(d)(3)]); and
          "(G) a qualified HUBZone small business concern (as defined
        in section 3(p) of the Small Business Act [15 U.S.C. 632(p)]).
        "(3) The term 'small business concern owned and controlled by
      socially and economically disadvantaged individuals' has the
      meaning given such term in section 8(d)(3)(C) of the Small
      Business Act (15 U.S.C. 637(d)(3)(C)).
        "(4) The term 'historically Black college and university' means
      any of the historically Black colleges and universities referred
      to in section 2323 of title 10, United States Code.
        "(5) The term 'minority institution of higher education' means
      an institution of higher education with a student body that
      reflects the composition specified in section 312(b)(3), (4), and
      (5) of the Higher Education Act of 1965 (20 U.S.C. 1058(b)(3),
      (4), and (5)).
        "(6) The term 'subcontracting participation goal', with respect
      to a Department of Defense contract, means a goal for the extent
      of the participation by disadvantaged small business concerns in
      the subcontracts awarded under such contract, as established
      pursuant to section 2323 of title 10, United States Code, and
      section 8(d) of the Small Business Act (15 U.S.C. 637(d)).
        "(7) The term 'qualified organization employing the severely
      disabled' means a business entity operated on a for-profit or
      nonprofit basis that - 
          "(A) uses rehabilitative engineering to provide employment
        opportunities for severely disabled individuals and integrates
        severely disabled individuals into its workforce;
          "(B) employs severely disabled individuals at a rate that
        averages not less than 20 percent of its total workforce;
          "(C) employs each severely disabled individual in its
        workforce generally on the basis of 40 hours per week; and
          "(D) pays not less than the minimum wage prescribed pursuant
        to section 6 of the Fair Labor Standards Act (29 U.S.C. 206) to
        those employees who are severely disabled individuals.
        "(8) The term 'severely disabled individual' means an
      individual who has a physical or mental disability which
      constitutes a substantial handicap to employment and which, in
      accordance with criteria prescribed by the Committee for the
      Purchase From the Blind and Other Severely Handicapped
      established by the first section of the Act of June 25, 1938 (41
      U.S.C. 46; popularly known as the 'Wagner-O'Day Act') [now known
      as the "Javits-Wagner-O'Day Act"], is of such a nature that the
      individual is otherwise prevented from engaging in normal
      competitive employment."
      [Pub. L. 106-65, div. A, title VIII, Sec. 811(f), Oct. 5, 1999,
    113 Stat. 709, provided that:
      ["(1) The amendments made by this section [amending section 831
    of Pub. L. 101-510, set out above] shall take effect on October 1,
    1999, and shall apply with respect to mentor-protege agreements
    that are entered into under section 831(e) of the National Defense
    Authorization Act for Fiscal Year 1991 [Pub. L. 101-510, set out
    above] on or after that date.
      ["(2) Section 831 of the National Defense Authorization Act for
    Fiscal Year 1991, as in effect on September 30, 1999, shall
    continue to apply with respect to mentor-protege agreements entered
    into before October 1, 1999."]
      [Section 807(b)(2) of Pub. L. 102-484 provided that: "The
    amendment made by this subsection [amending section 831 of Pub. L.
    101-510, set out above] shall take effect as of November 5, 1990."]

         CREDIT FOR INDIAN CONTRACTING IN MEETING CERTAIN MINORITY
                           SUBCONTRACTING GOALS
      Pub. L. 101-189, div. A, title VIII, Sec. 832, Nov. 29, 1989, 103
    Stat. 1508, which provided credit for Indian contracting in meeting
    certain minority contracting goals, was repealed and restated in
    section 2323a of this title by Pub. L. 102-484, Sec. 801(g)(1)(B),
    (h)(5).

       EQUITABLE PARTICIPATION OF AMERICAN SMALL AND MINORITY-OWNED
            BUSINESS IN FURNISHING OF COMMODITIES AND SERVICES
      Pub. L. 101-165, title IX, Sec. 9004, Nov. 21, 1989, 103 Stat.
    1129, provided that: "During the current fiscal year and hereafter,
    the Secretary of Defense and each purchasing and contracting agency
    of the Department of Defense shall assist American small and
    minority-owned business to participate equitably in the furnishing
    of commodities and services financed with funds appropriated under
    this Act [see Tables for classification] by increasing, to an
    optimum level, the resources and number of personnel jointly
    assigned to promoting both small and minority business involvement
    in purchases financed with funds appropriated herein, and by making
    available or causing to be made available to such businesses,
    information, as far in advance as possible, with respect to
    purchases proposed to be financed with funds appropriated under
    this Act, and by assisting small and minority business concerns to
    participate equitably as subcontractors on contracts financed with
    funds appropriated herein, and by otherwise advocating and
    providing small and minority business opportunities to participate
    in the furnishing of commodities and services financed with funds
    appropriated by this Act."

    REQUIREMENT FOR SUBSTANTIAL PROGRESS ON MINORITY AND SMALL BUSINESS
                              CONTRACT AWARDS
      Pub. L. 100-180, div. A, title VIII, Sec. 806(a)-(c), Dec. 4,
    1987, 101 Stat. 1126, 1127, directed Secretary of Defense to issue
    regulations to ensure that substantial progress was made in
    increasing awards of Department of Defense contracts to small
    business concerns, historically Black colleges and universities,
    and minority institutions described in section 1207(a) of Pub. L.
    99-661 [formerly set out below], prior to repeal by Pub. L. 102-
    484, div. A, title VIII, Sec. 801(h)(7), Oct. 23, 1992, 106 Stat.
    2446.

     DEFINITIONS; RULE OF CONSTRUCTION FOR DUPLICATE AUTHORIZATION AND
    APPROPRIATION PROVISIONS OF PUBLIC LAWS 99-500, 99-591, AND 99-661
      Pub. L. 100-26, Secs. 2, 6, Apr. 21, 1987, 101 Stat. 273, 274,
    provided that:

      "SEC. 2. REFERENCES TO 99TH CONGRESS LAWS
      "For purposes of this Act [Pub. L. 100-26, see Short Title of
    1987 Amendment note set out under section 101 of this title]:
        "(1) The term 'Defense Authorization Act' means the Department
      of Defense Authorization Act, 1987 (division A of Public Law 99-
      661; 100 Stat. 3816 et seq.).
        "(2) The term 'Defense Appropriations Act' means the Department
      of Defense Appropriations Act, 1987 (as contained in identical
      form in section 101(c) of Public Law 99-500 (100 Stat. 1783-82 et
      seq.) and section 101(c) of Public Law 99-591 (100 Stat. 3341-82
      et seq.)).
        "(3) The term 'Defense Acquisition Improvement Act' means title
      X of the Defense Appropriations Act [100 Stat. 1783-130, 3341-
      130] and title IX of the Defense Authorization Act [100 Stat.
      3910] (as designated by the amendment made by section 3(5)
      [section 3(5) of Pub. L. 100-26]). Any reference in this Act to
      the Defense Acquisition Improvement Act shall be considered to be
      a reference to each such title."

      "SEC. 6. CONSTRUCTION OF DUPLICATE AUTHORIZATION AND
        APPROPRIATION PROVISIONS
      "(a) Rule for Construction of Duplicate Provisions. - (1) In
    applying the provisions of Public Laws 99-500, 99-591, and 99-661
    described in paragraph (2) - 
        "(A) the identical provisions of those public laws referred to
      in such paragraph shall be treated as having been enacted only
      once, and
        "(B) in executing to the United States Code and other statutes
      of the United States the amendments made by such identical
      provisions, such amendments shall be executed so as to appear
      only once in the law as amended.
      "(2) Paragraph (1) applies with respect to the provisions of the
    Defense Appropriations Act and the Defense Authorization Act (as
    amended by sections 3, 4, 5, and 10(a)) referred to across from
    each other in the following table:

     "Section 101(c) of       Section 101(c) of         Division A of   
      Public Law 99-500       Public Law 99-591       Public Law 99-661 
    --------------------------------------------------------------------
    "Title X                Title X                 Title IX            
    "Sec. 9122              Sec. 9122               Sec. 522            
    "Sec. 9036(b)           Sec. 9036(b)            Sec. 1203           
    "Sec. 9115              Sec. 9115               Sec. 1311           
    --------------------------------------------------------------------

      "(b) Rule for Date of Enactment. - (1) The date of the enactment
    of the provisions of law listed in the middle column, and in the
    right-hand column, of the table in subsection (a)(2) shall be
    deemed to be October 18, 1986 (the date of the enactment of Public
    Law 99-500).
      "(2) Any reference in a provision of law referred to in paragraph
    (1) to 'the date of the enactment of this Act' shall be treated as
    a reference to October 18, 1986."
      [For classification of provisions listed in the table, see
    Tables.]

                       CONTRACT GOAL FOR MINORITIES                   
      Section 1207 of Pub. L. 99-661, as amended by Pub. L. 100-180,
    div. A, title VIII, Sec. 806(d), 101 Stat. 1127; Pub. L. 100-456,
    div. A, title VIII, Sec. 844, Sept. 29, 1988, 102 Stat. 2027; Pub.
    L. 101-189, div. A, title VIII, Sec. 831, Nov. 29, 1989, 103 Stat.
    1507; Pub. L. 101-510, div. A, title VIII, Secs. 811, 832, title
    XIII, Secs. 1302(d), 1312(b), Nov. 5, 1990, 104 Stat. 1596, 1612,
    1669, 1670; Pub. L. 102-25, title VII, Secs. 704(a)(6), 705(e),
    Apr. 6, 1991, 105 Stat. 118, 120, which set contract goals for
    small disadvantaged businesses and certain institutions of higher
    education, was repealed and restated in section 2323 of this title
    by Pub. L. 102-484, Sec. 801(a)(1)(B), (h)(1).

              MINIMUM PERCENTAGE OF COMPETITIVE PROCUREMENTS          
      Pub. L. 99-145, title IX, Sec. 913, Nov. 8, 1985, 99 Stat. 687,
    as amended by Pub. L. 101-510, div. A, title XIII, Sec. 1322(d)(1),
    Nov. 5, 1990, 104 Stat. 1672, provided that:
      "(a) Annual Goal. - The Secretary of Defense shall establish for
    each fiscal year a goal for the percentage of defense procurements
    to be made during that year (expressed in total dollar value of
    contracts entered into) that are to be competitive procurements.
      "(b) Definition. - For the purposes of this section, the term
    'competitive procurements' means procurements made by the
    Department of Defense through the use of competitive procedures, as
    defined in section 2304 of title 10, United States Code."

       DEFENSE PROCUREMENT REFORM: CONGRESSIONAL FINDINGS AND POLICY   
      Section 1202 of Pub. L. 98-525, as amended by Pub. L. 99-500,
    Sec. 101(c) [title X, Sec. 953(c)], Oct. 18, 1986, 100 Stat. 1783-
    82, 1783-172, and Pub. L. 99-591, Sec. 101(c) [title X, Sec.
    953(c)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-172; Pub. L. 99-
    661, div. A, title IX, formerly title IV, Sec. 953(c), Nov. 14,
    1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100-26, Sec.
    3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "The Congress
    finds that recent disclosures of excessive payments by the
    Department of Defense for replenishment parts have undermined
    confidence by the public and Congress in the defense procurement
    system. The Secretary of Defense should make every effort to reform
    procurement practices relating to replenishment parts. Such efforts
    should, among other matters, be directed to the elimination of
    excessive pricing of replenishment spare parts and the recovery of
    unjustified payments. Specifically, the Secretary should - 
        "(1) direct that officials in the Department of Defense refuse
      to enter into contracts unless the proposed prices are fair and
      reasonable;
        "(2) continue and accelerate ongoing efforts to improve defense
      contracting procedures in order to encourage effective
      competition and assure fair and reasonable prices;
        "(3) direct that replenishment parts be acquired in economic
      order quantities and on a multiyear basis whenever feasible,
      practicable, and cost effective;
        "(4) direct that standard or commercial parts be used whenever
      such use is technically acceptable and cost effective; and
        "(5) vigorously continue reexamination of policies relating to
      acquisition, pricing, and management of replenishment parts and
      of technical data related to such parts."

    MODIFICATION OF REGULATIONS AND DIRECTIVES TO ACCOMMODATE A POLICY
                         OF MULTIYEAR PROCUREMENT
      Section 909(d) of Pub. L. 97-86 directed Secretary of Defense,
    not later than the end of the 90-day period beginning Dec. 1, 1981,
    to issue such modifications to existing regulations governing
    defense acquisitions as might be necessary to implement the
    amendments made by subsections (a), (b), and (c) [amending sections
    139, 2301, and 2306 of this title] and directed Director of the
    Office of Management and Budget to issue such modifications to
    existing Office of Management and Budget directives as might be
    necessary to take into account the amendments made by subsections
    (a) and (b) [amending sections 2301 and 2306 of this title].

      PROCUREMENT REQUIREMENTS FOR GOODS WHICH ARE NOT AMERICAN GOODS  
      Pub. L. 93-365, title VII, Sec. 707, Aug. 5, 1974, 88 Stat. 406,
    which prohibited contracts by the Department of Defense for other
    than American goods after Aug. 5, 1974, unless adequate
    consideration was first given to bids of firms in labor surplus
    areas of the United States, of small business firms, and of all
    other United States firms which had offered to furnish American
    goods, balance of payments, cost of shipping other than American
    goods, and any duty, tariff, or surcharge on such goods, was
    repealed and restated in section 2501 of this title by Pub. L. 100-
    370, Sec. 3(a), (c). Section 2501 of this title was renumbered
    section 2506 by Pub. L. 100-456, Sec. 821(b)(1)(A). Section 2506 of
    this title was renumbered section 2533 by Pub. L. 102-484, Sec.
    4202(a).

-End-

-CITE-
    10 USC Sec. 2302a                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2302a. Simplified acquisition threshold

-STATUTE-
      (a) Simplified Acquisition Threshold. - For purposes of
    acquisitions by agencies named in section 2303 of this title, the
    simplified acquisition threshold is as specified in section 4(11)
    of the Office of Federal Procurement Policy Act.
      (b) Inapplicable Laws. - No law properly listed in the Federal
    Acquisition Regulation pursuant to section 33 of the Office of
    Federal Procurement Policy Act shall apply to or with respect to a
    contract or subcontract that is not greater than the simplified
    acquisition threshold.

-SOURCE-
    (Added and amended Pub. L. 103-355, title IV, Secs. 4002(a),
    4102(a), Oct. 13, 1994, 108 Stat. 3338, 3340.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      Sections 4(11) and 33 of the Office of Federal Procurement Policy
    Act, referred to in subsecs. (a) and (b), respectively, are
    classified to sections 403(11) and 429, respectively, of Title 41,
    Public Contracts.

-MISC1-
                                AMENDMENTS                            
      1994 - Subsec. (b). Pub. L. 103-355, Sec. 4102(a), added subsec.
    (b).

                              EFFECTIVE DATE                          
      For effective date and applicability of section, see section
    10001 of Pub. L. 103-355, set out as an Effective Date of 1994
    Amendment note under section 251 of Title 41, Public Contracts.

-End-

-CITE-
    10 USC Sec. 2302b                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2302b. Implementation of simplified acquisition procedures

-STATUTE-
      The simplified acquisition procedures contained in the Federal
    Acquisition Regulation pursuant to section 31 of the Office of
    Federal Procurement Policy Act shall apply as provided in such
    section to the agencies named in section 2303(a) of this title.

-SOURCE-
    (Added Pub. L. 103-355, title IV, Sec. 4203(a)(1), Oct. 13, 1994,
    108 Stat. 3345.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 31 of the Office of Federal Procurement Policy Act,
    referred to in text, is classified to section 427 of Title 41,
    Public Contracts.

-MISC1-
                              EFFECTIVE DATE                          
      For effective date and applicability of section, see section
    10001 of Pub. L. 103-355, set out as an Effective Date of 1994
    Amendment note under section 251 of Title 41, Public Contracts.

-End-

-CITE-
    10 USC Sec. 2302c                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2302c. Implementation of electronic commerce capability

-STATUTE-
      (a) Implementation of Electronic Commerce Capability. - (1) The
    head of each agency named in paragraphs (1), (5), and (6) of
    section 2303(a) of this title shall implement the electronic
    commerce capability required by section 30 of the Office of Federal
    Procurement Policy Act (41 U.S.C. 426).
      (2) The Secretary of Defense shall act through the Under
    Secretary of Defense for Acquisition, Technology, and Logistics to
    implement the capability within the Department of Defense.
      (3) In implementing the electronic commerce capability pursuant
    to paragraph (1), the head of an agency referred to in paragraph
    (1) shall consult with the Administrator for Federal Procurement
    Policy.
      (b) Designation of Agency Official. - The head of each agency
    named in paragraph (5) or (6) of section 2303(a) of this title
    shall designate a program manager to implement the electronic
    commerce capability for that agency. The program manager shall
    report directly to an official at a level not lower than the senior
    procurement executive designated for the agency under section 16(c)
    of the Office of Federal Procurement Policy Act (41 U.S.C. 414(c)).

-SOURCE-
    (Added Pub. L. 103-355, title IX, Sec. 9002(a), Oct. 13, 1994, 108
    Stat. 3402; amended Pub. L. 105-85, div. A, title VIII, Sec.
    850(f)(3)(A), Nov. 18, 1997, 111 Stat. 1850; Pub. L. 105-129, Sec.
    1(a)(1), Dec. 1, 1997, 111 Stat. 2551; Pub. L. 106-65, div. A,
    title X, Sec. 1066(a)(18), Oct. 5, 1999, 113 Stat. 771; Pub. L. 107-
    107, div. A, title X, Sec. 1048(b)(2), Dec. 28, 2001, 115 Stat.
    1225; Pub. L. 109-364, div. A, title X, Sec. 1071(a)(2), Oct. 17,
    2006, 120 Stat. 2398.)

-MISC1-
                                AMENDMENTS                            
      2006 - Subsec. (b). Pub. L. 109-364 substituted "section 16(c) of
    the Office of Federal Procurement Policy Act (41 U.S.C. 414(c))"
    for "section 16(3) of the Office of Federal Procurement Policy Act
    (41 U.S.C. 414(3))".
      2001 - Subsec. (a)(2). Pub. L. 107-107 substituted "Under
    Secretary of Defense for Acquisition, Technology, and Logistics"
    for "Under Secretary of Defense for Acquisition and Technology".
      1999 - Subsec. (b). Pub. L. 106-65 substituted "section 2303(a)"
    for "section 2303".
      1997 - Pub. L. 105-85 substituted "electronic commerce" for
    "FACNET" in section catchline and amended text generally. Prior to
    amendment, text read as follows:
      "(a) Implementation of FACNET Capability. - (1) The head of each
    agency named in section 2303 of this title shall implement the
    Federal acquisition computer network ('FACNET') capability required
    by section 30 of the Office of Federal Procurement Policy Act. In
    the case of the Department of Defense, the implementation shall be
    by the Secretary of Defense, acting through the Under Secretary of
    Defense for Acquisition and Technology, for the Department of
    Defense as a whole. For purposes of this section, the term 'head of
    an agency' does not include the Secretaries of the military
    departments.
      "(2) In implementing the FACNET capability pursuant to paragraph
    (1), the head of an agency shall consult with the Administrator for
    Federal Procurement Policy.
      "(b) Designation of Agency Official. - The head of each agency
    named in paragraph (5) or (6) of section 2303 of this title shall
    designate a program manager to have responsibility for
    implementation of FACNET capability for that agency and otherwise
    to implement this section. Such program manager shall report
    directly to the senior procurement executive designated for the
    agency under section 16(3) of the Office of Federal Procurement
    Policy Act (41 U.S.C. 414(3))."
      Subsec. (a)(1). Pub. L. 105-129 inserted "of section 2303(a) of
    this title" after "paragraphs (1), (5), and (6)".

                     EFFECTIVE DATE OF 1997 AMENDMENTS                 
      Section 1(a)(2) of Pub. L. 105-129 provided that: "The amendment
    made by paragraph (1) [amending this section] shall take effect as
    if included in the amendment to section 2302c of title 10, United
    States Code, made by section 850(f)(3)(A) of the National Defense
    Authorization Act for Fiscal Year 1998 [Pub. L. 105-85] to which
    the amendment made by paragraph (1) relates."
      Section 850(g) of Pub. L. 105-85 provided that:
      "(1) Except as provided in paragraph (2), the amendments made by
    this section [amending this section, section 2304 of this title,
    section 637 of Title 15, Commerce and Trade, section 1501 of former
    Title 40, Public Buildings, Property, and Works, and sections 252c,
    253, 416, 426, and 427 of Title 41, Public Contracts, repealing
    section 426a of Title 41, amending provisions set out as a note
    under section 413 of Title 41, and repealing provisions set out as
    a note under section 426a of Title 41] shall take effect 180 days
    after the date of the enactment of this Act [Nov. 18, 1997].
      "(2) The repeal made by subsection (c) of this section [repealing
    provisions set out as a note under section 426a of Title 41] shall
    take effect on the date of the enactment of this Act."

                              EFFECTIVE DATE                          
      Section 9002(c) of Pub. L. 103-355 provided that: "A FACNET
    capability may be implemented and used in an agency before the
    promulgation of regulations implementing this section (as provided
    in section 10002) [set out as a Regulations note under section 251
    of Title 41, Public Contracts]. If such implementation and use
    occurs, the period for submission of bids or proposals under
    section 18(a)(3)(B) of the Office of Federal Procurement Policy Act
    [41 U.S.C. 416(a)(3)(B)], in the case of a solicitation through
    FACNET, may be less than the period otherwise applicable under that
    section, but shall be at least 10 days. The preceding sentence
    shall not be in effect after September 30, 1995."

-End-

-CITE-
    10 USC Sec. 2302d                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2302d. Major system: definitional threshold amounts

-STATUTE-
      (a) Department of Defense Systems. - For purposes of section
    2302(5) of this title, a system for which the Department of Defense
    is responsible shall be considered a major system if - 
        (1) the total expenditures for research, development, test, and
      evaluation for the system are estimated to be more than
      $115,000,000 (based on fiscal year 1990 constant dollars); or
        (2) the eventual total expenditure for procurement for the
      system is estimated to be more than $540,000,000 (based on fiscal
      year 1990 constant dollars).

      (b) Civilian Agency Systems. - For purposes of section 2302(5) of
    this title, a system for which a civilian agency is responsible
    shall be considered a major system if total expenditures for the
    system are estimated to exceed the greater of - 
        (1) $750,000 (based on fiscal year 1980 constant dollars); or
        (2) the dollar threshold for a "major system" established by
      the agency pursuant to Office of Management and Budget (OMB)
      Circular A-109, entitled "Major Systems Acquisitions".

      (c) Adjustment Authority. - (1) The Secretary of Defense may
    adjust the amounts and the base fiscal year provided in subsection
    (a) on the basis of Department of Defense escalation rates.
      (2) An amount, as adjusted under paragraph (1), that is not
    evenly divisible by $5,000,000 shall be rounded to the nearest
    multiple of $5,000,000. In the case of an amount that is evenly
    divisible by $2,500,000 but not evenly divisible by $5,000,000, the
    amount shall be rounded to the next higher multiple of $5,000,000.
      (3) An adjustment under this subsection shall be effective after
    the Secretary transmits to the Committee on Armed Services of the
    Senate and the Committee on Armed Services of the House of
    Representatives a written notification of the adjustment.

-SOURCE-
    (Added Pub. L. 104-201, div. A, title VIII, Sec. 805(a)(2), Sept.
    23, 1996, 110 Stat. 2605; amended Pub. L. 105-85, div. A, title X,
    Sec. 1073(a)(41), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 106-65,
    div. A, title X, Sec. 1067(1), Oct. 5, 1999, 113 Stat. 774.)

-MISC1-
                                AMENDMENTS                            
      1999 - Subsec. (c)(3). Pub. L. 106-65 substituted "and the
    Committee on Armed Services" for "and the Committee on National
    Security".
      1997 - Subsec. (a)(2). Pub. L. 105-85 substituted "procurement
    for the system is estimated to be" for "procurement of".

-End-

-CITE-
    10 USC Sec. 2303                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2303. Applicability of chapter

-STATUTE-
      (a) This chapter applies to the procurement by any of the
    following agencies, for its use or otherwise, of all property
    (other than land) and all services for which payment is to be made
    from appropriated funds:
        (1) The Department of Defense.
        (2) The Department of the Army.
        (3) The Department of the Navy.
        (4) The Department of the Air Force.
        (5) The Coast Guard.
        (6) The National Aeronautics and Space Administration.

      (b) The provisions of this chapter that apply to the procurement
    of property apply also to contracts for its installation or
    alteration.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85-568, title III,
    Sec. 301(b), July 29, 1958, 72 Stat. 432; Pub. L. 98-369, div. B,
    title VII, Sec. 2722(b), July 18, 1984, 98 Stat. 1187.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2303(a)      41:151(a).                    Feb. 19, 1948, ch. 65,   
                                                Secs. 2(a), 9 (clause   
                                                (b)), 62 Stat. 21, 24.  
    2303(b)                                                             
                 41:158 (clause (b), less                               
                  last 5 words).                                        
    2303(c)      41:158 (last 5 words of                                
                  clause (b)).                                          
    --------------------------------------------------------------------

      In subsection (a), the words "all property named in subsection
    (b), and all services" are substituted for the words "for supplies
    or services". The words "(each being hereinafter called the
    agency)", are omitted, since the revised sections of this chapter
    make specific reference to the agencies named in this revised
    section. The words "United States" before the words "Coast Guard"
    are omitted, since they are not a part of the official name of the
    Coast Guard under section 1 of title 14.
      In subsection (b), the introductory clause is substituted for the
    word "supplies". Throughout the revised chapter reference is made
    to "property or services covered by this chapter", instead of
    "supplies", since the word "supplies" is defined in section 101(26)
    of this title in its usual and narrower sense, rather than the
    sense of the source statute for this revised chapter. It is
    desirable to avoid a usage which conflicts with the definition in
    section 101(26) of this title. The word "ships" and the words "of
    every character, type, and description", after the word "vessels",
    are omitted as covered by the definition of "vessel" in section 1
    of title 1.

                                AMENDMENTS                            
      1984 - Subsec. (a). Pub. L. 98-369, Sec. 2722(b)(1)(A), (B),
    substituted in provisions preceding cl. (1) "procurement" for
    "purchase, and contract to purchase," and "(other than land) and
    all services" for "named in subsection (b), and all services,".
      Subsec. (a)(1) to (6). Pub. L. 98-369, Sec. 2722(b)(1)(C), (D),
    added cl. (1) and redesignated existing cls. (1) to (5) as (2) to
    (6), respectively.
      Subsecs. (b), (c). Pub. L. 98-369, Sec. 2722(b)(2), (3),
    redesignated subsec. (c) as (b). Former subsec. (b), which had
    provided that this chapter did not cover land but did cover public
    works, buildings, facilities, vessels, floating equipment,
    aircraft, parts, accessories, equipment, and machine tools, was
    struck out.
      1958 - Subsec. (a)(5). Pub. L. 85-568 substituted "The National
    Aeronautics and Space Administration" for "The National Advisory
    Committee for Aeronautics".

                     EFFECTIVE DATE OF 1984 AMENDMENT                 
      Amendment by Pub. L. 98-369 applicable with respect to any
    solicitation for bids or proposals issued after Mar. 31, 1985, see
    section 2751 of Pub. L. 98-369, set out as a note under section 251
    of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1958 AMENDMENT                 
      Amendment by Pub. L. 85-568 effective 90 days after July 29,
    1958, or on any earlier date on which the Administrator of the
    National Aeronautics and Space Administration determines, and
    announces by proclamation, that the Administration has been
    organized and is prepared to discharge the duties and exercise the
    powers conferred upon it, see note set out under section 2302 of
    this title.

-TRANS-
                           TRANSFER OF FUNCTIONS                       
      For transfer of authorities, functions, personnel, and assets of
    the Coast Guard, including the authorities and functions of the
    Secretary of Transportation relating thereto, to the Department of
    Homeland Security, and for treatment of related references, see
    sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
    Security, and the Department of Homeland Security Reorganization
    Plan of November 25, 2002, as modified, set out as a note under
    section 542 of Title 6.

-MISC2-
    ACQUISITION, LEASE, OR RENTAL FOR USE BY THE ARMED FORCES OF MOTOR
               BUSES MANUFACTURED OUTSIDE THE UNITED STATES
      Pub. L. 90-500, title IV, Sec. 404, Sept. 20, 1968, 82 Stat. 851,
    which provided that no funds for the armed forces were to be used
    to buy or lease buses other than those manufactured in the United
    States, except as regulation from the Secretary of Defense might
    authorize solely to avoid uneconomical procurement or one contrary
    to the national interest, was repealed and restated as section 2400
    of this title by Pub. L. 97-295, Secs. 1(29)(A), 6(b), Oct. 12,
    1982, 96 Stat. 1294, 1314.

-End-

-CITE-
    10 USC Sec. 2303a                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2303a. Repealed.

-MISC1-
    [Sec. 2303a. Repealed. Pub. L. 98-577, title III, Sec. 302(c)(1),
      Oct. 30, 1984, 98 Stat. 3077].
      Section, Pub. L. 98-525, title XII, Sec. 1212(a), Oct. 19, 1984,
    98 Stat. 2590, related to publication of proposed regulations. See
    section 418b of Title 41, Public Contracts.
      Section, pursuant to section 1212(b) of Pub. L. 98-525, was to
    have taken effect with respect to procurement policies,
    regulations, procedures, or forms first proposed to be issued by an
    agency on or after the date which was 30 days after the date of
    enactment of Pub. L. 98-525. Pub. L. 98-525 was approved Oct. 19,
    1984. However, before that effective date, the section was repealed
    by Pub. L. 98-577.

-End-

-CITE-
    10 USC Sec. 2304                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2304. Contracts: competition requirements

-STATUTE-
      (a)(1) Except as provided in subsections (b), (c), and (g) and
    except in the case of procurement procedures otherwise expressly
    authorized by statute, the head of an agency in conducting a
    procurement for property or services - 
        (A) shall obtain full and open competition through the use of
      competitive procedures in accordance with the requirements of
      this chapter and the Federal Acquisition Regulation; and
        (B) shall use the competitive procedure or combination of
      competitive procedures that is best suited under the
      circumstances of the procurement.

      (2) In determining the competitive procedure appropriate under
    the circumstances, the head of an agency - 
        (A) shall 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; and

        (B) shall request competitive proposals if sealed bids are not
      appropriate under clause (A).

      (b)(1) The head of an agency may provide for the procurement of
    property or services covered by this chapter using competitive
    procedures but excluding a particular source in order to establish
    or maintain an alternative source or sources of supply for that
    property or service if the head of the agency determines that to do
    so - 
        (A) would increase or maintain competition and would likely
      result in reduced overall costs for such procurement, or for any
      anticipated procurement, of property or services;
        (B) would 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) would 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) would ensure the continuous availability of a reliable
      source of supply of such property or service;
        (E) would satisfy projected needs for such property or service
      determined on the basis of a history of high demand for the
      property or service; or
        (F) in the case of medical supplies, safety supplies, or
      emergency supplies, would satisfy a critical need for such
      supplies.

      (2) The head of an agency may provide for the procurement of
    property or services covered by this section using competitive
    procedures, but excluding concerns other than small business
    concerns in furtherance of sections 9 and 15 of the Small Business
    Act (15 U.S.C. 638, 644) and concerns other than small business
    concerns, historically Black colleges and universities, and
    minority institutions in furtherance of section 2323 of this title.
      (3) A contract awarded pursuant to the competitive procedures
    referred to in paragraphs (1) and (2) shall not be subject to the
    justification and approval required by subsection (f)(1).
      (4) A determination under paragraph (1) may not be made for a
    class of purchases or contracts.
      (c) The head of an agency may use procedures other than
    competitive procedures only when - 
        (1) the property or services needed by the agency are available
      from only one responsible source or only from a limited number of
      responsible sources and no other type of property or services
      will satisfy the needs of the agency;
        (2) the agency's need for the property or services is of such
      an unusual and compelling urgency that the United States would be
      seriously injured unless the 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 or sources in order (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, or (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 any court, administrative tribunal, or
      agency, or 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 a treaty between
      the United States and a foreign government or international
      organization, or the written directions of a foreign government
      reimbursing the agency for the cost of the procurement of the
      property or services for such government, have the effect of
      requiring the use of procedures other than competitive
      procedures;
        (5) subject to subsection (k), a statute expressly authorizes
      or requires that the procurement be made through another agency
      or from a specified source, or the agency's need is for a brand-
      name commercial item for authorized resale;
        (6) the disclosure of the 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 agency - 
          (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 the Congress in writing of such determination
        not less than 30 days before the award of the contract.

      (d)(1) For the purposes of applying subsection (c)(1) - 
        (A) in the case of a contract for property or services to be
      awarded on the basis of acceptance of an unsolicited research
      proposal, the property or services shall be considered to be
      available from only one source if the source has submitted an
      unsolicited research proposal that demonstrates a concept - 
          (i) that is unique and innovative or, in the case of a
        service, for which the source demonstrates a unique capability
        of the source to provide the service; and
          (ii) the substance of which is not otherwise available to the
        United States, and does not resemble the substance of a pending
        competitive procurement; and

        (B) in the case of a follow-on contract for the continued
      development or production of a major system or highly specialized
      equipment, or the continued provision of highly specialized
      services, such property or services 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 - 
          (i) substantial duplication of cost to the United States
        which is not expected to be recovered through competition; or
          (ii) unacceptable delays in fulfilling the agency's needs.

      (2) The authority of the head of an agency under subsection
    (c)(7) may not be delegated.
      (e) The head of an agency using procedures other than competitive
    procedures to procure property or services by reason of the
    application of subsection (c)(2) or (c)(6) shall request offers
    from as many potential sources as is practicable under the
    circumstances.
      (f)(1) Except as provided in paragraph (2), the head of an agency
    may not award a contract using procedures other than competitive
    procedures unless - 
        (A) the contracting officer for the contract justifies the use
      of such procedures in writing and certifies the accuracy and
      completeness of the justification;
        (B) the justification is approved - 
          (i) in the case of a contract for an amount exceeding
        $500,000 (but equal to or less than $10,000,000), by the
        competition advocate for the procuring activity (without
        further delegation) or by an official referred to in clause
        (ii) or (iii);
          (ii) in the case of a contract for an amount exceeding
        $10,000,000 (but equal to or less than $75,000,000), by the
        head of the procuring activity (or the head of the procuring
        activity's delegate designated pursuant to paragraph (6)(A));
        or
          (iii) in the case of a contract for an amount exceeding
        $75,000,000, by the senior procurement executive of the agency
        designated pursuant to section 16(c) of the Office of Federal
        Procurement Policy Act (41 U.S.C. 414(c)) (without further
        delegation) or in the case of the Under Secretary of Defense
        for Acquisition, Technology, and Logistics, acting in his
        capacity as the senior procurement executive for the Department
        of Defense, the Under Secretary's delegate designated pursuant
        to paragraph (6)(B); and

        (C) any required notice has been published with respect to such
      contract pursuant to section 18 of the Office of Federal
      Procurement Policy Act (41 U.S.C. 416) and all bids or proposals
      received in response to that notice have been considered by the
      head of the agency.

      (2) In the case of a procurement permitted by subsection (c)(2),
    the justification and approval required by paragraph (1) may be
    made after the contract is awarded. The justification and approval
    required by paragraph (1) is not required - 
        (A) when a statute expressly requires that the procurement be
      made from a specified source;
        (B) when the agency's need is for a brand-name commercial item
      for authorized resale;
        (C) in the case of a procurement permitted by subsection
      (c)(7);
        (D) in the case of a procurement conducted under (i) the Javits-
      Wagner-O'Day Act (41 U.S.C. 46 et seq.), or (ii) section 8(a) of
      the Small Business Act (15 U.S.C. 637(a)); or
        (E) in the case of a procurement permitted by subsection
      (c)(4), but only if the head of the contracting activity prepares
      a document in connection with such procurement that describes the
      terms of an agreement or treaty, or the written directions,
      referred to in that subsection that have the effect of requiring
      the use of procedures other than competitive procedures.

      (3) The justification required by paragraph (1)(A) shall include -
     
        (A) a description of the agency's needs;
        (B) an identification of the statutory exception from the
      requirement to use competitive procedures and a demonstration,
      based on the proposed contractor's qualifications or the nature
      of the procurement, of the reasons for using that exception;
        (C) a determination that the anticipated cost will be fair and
      reasonable;
        (D) a description of the market survey conducted or a statement
      of the reasons a market survey was not conducted;
        (E) a listing of the sources, if any, that expressed in writing
      an interest in the procurement; and
        (F) a statement of the actions, if any, the agency may take to
      remove or overcome any barrier to competition before a subsequent
      procurement for such needs.

      (4) The justification required by paragraph (1)(A) and any
    related information, and any document prepared pursuant to
    paragraph (2)(E), shall be made available for inspection by the
    public consistent with the provisions of section 552 of title 5.
      (5) In no case may the head of an agency - 
        (A) 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 of
      funds available to the agency for procurement functions; or
        (B) procure property or services from another agency unless
      such other agency complies fully with the requirements of this
      chapter in its procurement of such property or services.

    The restriction contained in clause (B) is in addition to, and not
    in lieu of, any other restriction provided by law.
      (6)(A) The authority of the head of a procuring activity under
    paragraph (1)(B)(ii) may be delegated only to an officer or
    employee who - 
        (i) if a member of the armed forces, is a general or flag
      officer; or
        (ii) if a civilian, is serving in a position with a grade under
      the General Schedule (or any other schedule for civilian officers
      or employees) that is comparable to or higher than the grade of
      brigadier general or rear admiral (lower half).

      (B) The authority of the Under Secretary of Defense for
    Acquisition, Technology, and Logistics under paragraph (1)(B)(iii)
    may be delegated only to - 
        (i) an Assistant Secretary of Defense; or
        (ii) with respect to the element of the Department of Defense
      (as specified in section 111(b) of this title), other than a
      military department, carrying out the procurement action
      concerned, an officer or employee serving in or assigned or
      detailed to that element who - 
          (I) if a member of the armed forces, is serving in a grade
        above brigadier general or rear admiral (lower half); or
          (II) if a civilian, is serving in a position with a grade
        under the General Schedule (or any other schedule for civilian
        officers or employees) that is comparable to or higher than the
        grade of major general or rear admiral.

      (g)(1) In order to promote efficiency and economy in contracting
    and to avoid unnecessary burdens for agencies and contractors, the
    Federal Acquisition Regulation shall provide for - 
        (A) special simplified procedures for purchases of property and
      services for amounts not greater than the simplified acquisition
      threshold; and
        (B) special simplified procedures for purchases of property and
      services for amounts greater than the simplified acquisition
      threshold but not greater than $5,000,000 with respect to which
      the contracting officer reasonably expects, based on the nature
      of the property or services sought and on market research, that
      offers will include only commercial items.

      (2) A proposed purchase or contract for an amount above the
    simplified acquisition threshold may not be divided into several
    purchases or contracts for lesser amounts in order to use the
    simplified procedures required by paragraph (1).
      (3) In using simplified procedures, the head of an agency shall
    promote competition to the maximum extent practicable.
      (4) The head of an agency shall comply with the Federal
    Acquisition Regulation provisions referred to in section 31(f) of
    the Office of Federal Procurement Policy Act (41 U.S.C. 427).
      (h) For the purposes of the following, purchases or contracts
    awarded after using procedures other than sealed-bid procedures
    shall be treated as if they were made with sealed-bid procedures:
        (1) The Walsh-Healey Act (41 U.S.C. 35 et seq.).
        (2) Sections 3141-3144, 3146, and 3147 of title 40.

      (i)(1) The Secretary of Defense shall prescribe by regulation the
    manner in which the Department of Defense negotiates prices for
    supplies to be obtained through the use of procedures other than
    competitive procedures, as defined in section 2302(2) of this
    title.
      (2) The regulations required by paragraph (1) shall - 
        (A) specify the incurred overhead a contractor may
      appropriately allocate to supplies referred to in that paragraph;
      and
        (B) require the contractor to identify those supplies which it
      did not manufacture or to which it did not contribute significant
      value.

      (3) Such regulations shall not apply to an item of supply
    included in a contract or subcontract for which the price is based
    on established catalog or market prices of commercial items sold in
    substantial quantities to the general public.
      (j) The Federal Acquisition Regulation shall ensure that the
    requirement to obtain full and open competition is implemented in a
    manner that is consistent with the need to efficiently fulfill the
    Government's requirements.
      (k)(1) It is the policy of Congress that an agency named in
    section 2303(a) of this title should not be required by legislation
    to award a new contract to a specific non-Federal Government
    entity. It is further the policy of Congress that any program,
    project, or technology identified in legislation be procured
    through merit-based selection procedures.
      (2) A provision of law may not be construed as requiring a new
    contract to be awarded to a specified non-Federal Government entity
    unless that provision of law - 
        (A) specifically refers to this subsection;
        (B) specifically identifies the particular non-Federal
      Government entity involved; and
        (C) specifically states that the award to that entity is
      required by such provision of law in contravention of the policy
      set forth in paragraph (1).

      (3) For purposes of this subsection, 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 preceding
    contract.
      (4) This subsection shall not apply with respect to any contract
    that calls upon the National Academy of Sciences to investigate,
    examine, or experiment upon any subject of science or art of
    significance to an agency named in section 2303(a) of this title
    and to report on such matters to the Congress or any agency of the
    Federal Government.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 128; Pub. L. 85-800, Sec. 8,
    Aug. 28, 1958, 72 Stat. 967; Pub. L. 85-861, Sec. 33(a)(12), Sept.
    2, 1958, 72 Stat. 1565; Pub. L. 87-653, Sec. 1(a)-(c), Sept. 10,
    1962, 76 Stat. 528; Pub. L. 90-268, Sec. 5, Mar. 16, 1968, 82 Stat.
    50; Pub. L. 90-500, title IV, Sec. 405, Sept. 20, 1968, 82 Stat.
    851; Pub. L. 93-356, Sec. 4, July 25, 1974, 88 Stat. 390; Pub. L.
    96-513, title V, Sec. 511(76), Dec. 12, 1980, 94 Stat. 2926; Pub.
    L. 97-86, title IX, Sec. 907(a), Dec. 1, 1981, 95 Stat. 1117; Pub.
    L. 97-295, Sec. 1(24), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 97-
    375, title I, Sec. 114, Dec. 21, 1982, 96 Stat. 1821; Pub. L. 98-
    369, div. B, title VII, Secs. 2723(a), 2727(b), July 18, 1984, 98
    Stat. 1187, 1194; Pub. L. 98-577, title V, Sec. 504(b)(1), (2),
    Oct. 30, 1984, 98 Stat. 3086; Pub. L. 99-145, title IX, Sec.
    961(a)(1), title XIII, Sec. 1303(a)(13), Nov. 8, 1985, 99 Stat.
    703, 739; Pub. L. 99-500, Sec. 101(c) [title X, Secs. 923(a)-(c),
    927(a)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-152, 1783-155, and
    Pub. L. 99-591, Sec. 101(c) [title X, Secs. 923(a)-(c), 927(a)],
    Oct. 30, 1986, 100 Stat. 3341-82, 3341-152, 3341-155; Pub. L. 99-
    661, div. A, title IX, formerly title IV, Secs. 923(a)-(c),
    927(a), title XIII, Sec. 1343(a)(14), Nov. 14, 1986, 100 Stat.
    3932, 3935, 3993, renumbered title IX, Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273; Pub. L. 100-26, Sec. 7(d)(3), Apr.
    21, 1987, 101 Stat. 281; Pub. L. 100-456, div. A, title VIII, Sec.
    803, Sept. 29, 1988, 102 Stat. 2008; Pub. L. 101-189, div. A, title
    VIII, Secs. 812, 817, 818, 853(d), Nov. 29, 1989, 103 Stat. 1493,
    1501, 1502, 1519; Pub. L. 101-510, div. A, title VIII, Sec. 806(b),
    Nov. 5, 1990, 104 Stat. 1592; Pub. L. 102-25, title VII, Sec.
    701(d)(2), Apr. 6, 1991, 105 Stat. 114; Pub. L. 102-484, div. A,
    title VIII, Secs. 801(h)(2), 816, title X, Sec. 1052(23), Oct. 23,
    1992, 106 Stat. 2445, 2454, 2500; Pub. L. 103-160, div. A, title
    IX, Sec. 904(d)(1), Nov. 30, 1993, 107 Stat. 1728; Pub. L. 103-355,
    title I, Secs. 1001-1003, 1004(b), 1005, title IV, Sec. 4401(a),
    title VII, Sec. 7203(a)(1), Oct. 13, 1994, 108 Stat. 3249, 3253,
    3254, 3347, 3379; Pub. L. 104-106, div. D, title XLI, Secs.
    4101(a), 4102(a), title XLII, Sec. 4202(a)(1), title XLIII, Sec.
    4321(b)(4), (5), Feb. 10, 1996, 110 Stat. 642, 643, 652, 672; Pub.
    L. 104-320, Secs. 7(a)(1), 11(c)(1), Oct. 19, 1996, 110 Stat. 3871,
    3873; Pub. L. 105-85, div. A, title VIII, Secs. 841(b),
    850(f)(3)(B), title X, Sec. 1073(a)(42), (43), Nov. 18, 1997, 111
    Stat. 1843, 1850, 1902; Pub. L. 107-107, div. A, title X, Sec.
    1048(b)(2), Dec. 28, 2001, 115 Stat. 1225; Pub. L. 107-217, Sec.
    3(b)(3), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108-375, div. A,
    title VIII, Sec. 815, Oct. 28, 2004, 118 Stat. 2015; Pub. L. 109-
    364, div. A, title X, Sec. 1071(a)(2), Oct. 17, 2006, 120 Stat.
    2398.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
                                 1956 ACT                             
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2304(a)      41:151(c) (less proviso       Feb. 19, 1948, ch. 65,   
                  of clause (11) and            Secs. 2(b) (less 1st    
                  proviso of clause (16)).      sentence), (c), (e),    
                                                7(d), 8, 62 Stat. 21,   
                                                22, 24.                 
                                                                        
                                                                        
    2304(b)                                                             
                 41:156(d).                                             
    2304(c)      41:151(e).                                             
    2304(d)      41:151(b) (less 1st                                    
                  sentence).                                            
    2304(e)      41:151(c) (proviso of                                  
                  clause (11) and proviso                               
                  of clause (16)).                                      
    2304(f)      41:157.                                                
    --------------------------------------------------------------------

      In subsection (a)(1), the words "the period of" are omitted as
    surplusage.
      In subsections (a)(4)-(10), and (12)-(15), the words "the
    purchase or contract is" are inserted for clarity.
      In subsection (a)(5), the words "to be rendered" are omitted as
    surplusage.
      In subsection (a)(6), the words "its Territories" are inserted
    for clarity. The words "the limits of" are omitted as surplusage.
      In subsection (a)(14), the words "and for which" are substituted
    for the word "when".
      In subsection (a)(15), the words "and for which" are substituted
    for 41:151(c)(15) (1st 22 words of proviso).
      In subsection (a)(16), the words "to have" are substituted for
    the words "be made or kept".
      In subsection (a)(17), the first 7 words are inserted for
    clarity.
      In subsection (b), the words "shall be kept" are substituted for
    the words "shall be preserved in the files". The words "six years
    after the date" are substituted for the words "a period of six
    years following".
      In subsection (c), the words "but such authorization shall be
    required in the same manner as heretofore" and "continental", in
    41:151(e), are omitted as surplusage.
      In subsection (d), the words "before making" are substituted for
    the words "Whenever it is proposed to make".
      In subsection (e), the words "beginning six months after the
    effective date of this chapter" are omitted as executed. The words
    "on May 19 and November 19 of each year" are substituted for the
    words "and at the end of each six-month period thereafter", since
    the effective date of the source statute was May 19, 1948, and the
    first report was made on November 19, 1948. The words "property and
    services covered by each contract" are substituted for the words
    "work required to be performed thereunder".

                                 1958 ACT                             
      The change is necessary to reflect the present Commonwealth
    status of Puerto Rico.

                                 1982 ACT                             
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2304(a)      10:2304 (note).               Mar. 16, 1967, Pub. L.   
     (1st                                       90-5, Sec. 304, 81 Stat.
     sentence)                                   6.                      
    2304(f)(     10:2304(f)(1).                                         
     1)                                                                 
    2304(i)      10:2304 (note).               Sept. 21, 1977, Pub. L.  
                                                95-111, Sec. 836, 91    
                                                Stat. 906.              
    --------------------------------------------------------------------

      In subsection (a), the words "The Secretary of Defense is hereby
    directed that insofar as practicable all contracts shall be
    formally advertised" are omitted as unnecessary because of
    10:2304(a) (1st sentence).
      Subsection (f)(1) is amended to correct a mistake in spelling.
      In subsection (i)(1)(B), the words "or States" are omitted
    because of 1:1.

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Javits-Wagner-O'Day Act, referred to in subsec. (f)(2)(D), is
    act June 25, 1938, ch. 697, 52 Stat. 1196, as amended, which is
    classified to sections 46 to 48c of Title 41, Public Contracts. For
    complete classification of this Act to the Code, see Short Title
    note set out under section 46 of Title 41 and Tables.
      The Walsh-Healey Act, referred to in subsec. (h)(1), is act June
    30, 1936, ch. 881, 49 Stat. 2036, as amended, which is classified
    generally to sections 35 et seq. of Title 41, Public Contracts. For
    complete classification of this Act to the Code, see Short Title
    note set out under section 35 of Title 41 and Tables. See also
    section 262 of Title 29, Labor.

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.

-MISC2-
                                AMENDMENTS                            
      2006 - Subsec. (f)(1)(B)(iii). Pub. L. 109-364 substituted
    "section 16(c) of the Office of Federal Procurement Policy Act (41
    U.S.C. 414(c))" for "section 16(3) of the Office of Federal
    Procurement Policy Act (41 U.S.C. 414(3))".
      2004 - Subsec. (f)(1)(B)(ii), (iii). Pub. L. 108-375 substituted
    "$75,000,000" for "$50,000,000".
      2002 - Subsec. (h). Pub. L. 107-217, Sec. 3(b)(3)(A), struck out
    "laws" after "following" in introductory provisions.
      Subsec. (h)(2). Pub. L. 107-217, Sec. 3(b)(3)(B), substituted
    "Sections 3141-3144, 3146, and 3147 of title 40" for "The Act
    entitled 'An Act relating to the rate of wages for laborers and
    mechanics employed on public buildings of the United States and the
    District of Columbia by contractors and subcontractors, and for
    other purposes', approved March 3, 1931 (commonly referred to as
    the 'Davis-Bacon Act') (40 U.S.C. 276a - 276a-5)".
      2001 - Subsec. (f)(1)(B)(iii), (6)(B). Pub. L. 107-107
    substituted "Under Secretary of Defense for Acquisition,
    Technology, and Logistics" for "Under Secretary of Defense for
    Acquisition and Technology".
      1997 - Subsec. (c)(5). Pub. L. 105-85, Sec. 1073(a)(42),
    substituted "subsection (k)" for "subsection (j)".
      Subsec. (f)(1)(B)(iii). Pub. L. 105-85, Sec. 1073(a)(43)(A),
    substituted "(6)(B)" for "(6)(C)".
      Subsec. (f)(2)(E). Pub. L. 105-85, Sec. 841(b), struck out "and
    such document is approved by the competition advocate for the
    procuring activity" after "requiring the use of procedures other
    than competitive procedures".
      Subsec. (f)(6)(B), (C). Pub. L. 105-85, Sec. 1073(a)(43)(B),
    redesignated subpar. (C) as (B), substituted "paragraph
    (1)(B)(iii)" for "paragraph (1)(B)(iv)" in introductory provisions,
    and struck out former subpar. (B), which read as follows: "The
    authority of the senior procurement executive under paragraph
    (1)(B)(iii) may be delegated only to an officer or employee within
    the senior procurement executive's organization who - 
        "(i) if a member of the armed forces, is a general or flag
      officer; or
        "(ii) if a civilian, is serving in a position in grade GS-16 or
      above (or in a comparable or higher position under any other
      schedule for civilian officers or employees)."
      Subsec. (g)(4). Pub. L. 105-85, Sec. 850(f)(3)(B), substituted
    "31(f)" for "31(g)".
      1996 - Subsec. (c)(3)(C). Pub. L. 104-320 substituted "agency, or
    to procure the services of an expert or neutral for use" for
    "agency, or" and inserted "or negotiated rulemaking" after
    "alternative dispute resolution".
      Subsec. (f)(1)(B)(i). Pub. L. 104-106, Sec. 4102(a)(1),
    substituted "$500,000 (but equal to or less than $10,000,000)" for
    "$100,000 (but equal to or less than $1,000,000)" and "(ii) or
    (iii)" for "(ii), (iii), or (iv)".
      Subsec. (f)(1)(B)(ii). Pub. L. 104-106, Sec. 4102(a)(2),
    substituted "$10,000,000 (but equal to or less than $50,000,000)"
    for "$1,000,000 (but equal to or less than $10,000,000)" and
    inserted "or" at end.
      Subsec. (f)(1)(B)(iii), (iv). Pub. L. 104-106, Sec. 4102(a)(3),
    (4), redesignated cl. (iv) as (iii) and struck out former cl. (iii)
    which read as follows: "in the case of a contract for an amount
    exceeding $10,000,000 (but equal to or less than $50,000,000), by
    the senior procurement executive of the agency designated pursuant
    to section 16(3) of the Office of Federal Procurement Policy Act
    (41 U.S.C. 414(3)) or the senior procurement executive's delegate
    designated pursuant to paragraph (6)(B), or in the case of the
    Under Secretary of Defense for Acquisition and Technology, acting
    in his capacity as the senior procurement executive for the
    Department of Defense, the Under Secretary's delegate designated
    pursuant to paragraph (6)(C); or".
      Subsec. (f)(2)(D). Pub. L. 104-106, Sec. 4321(b)(4), substituted
    "the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.)," for "the Act
    of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as
    the Wagner-O'Day Act,".
      Subsec. (g)(1). Pub. L. 104-106, Sec. 4202(a)(1)(A), substituted
    "shall provide for - " and subpars. (A) and (B) for "shall provide
    for special simplified procedures for purchases of property and
    services for amounts not greater than the simplified acquisition
    threshold."
      Subsec. (g)(4). Pub. L. 104-106, Sec. 4202(a)(1)(B), added par.
    (4).
      Subsec. (h)(1). Pub. L. 104-106, Sec. 4321(b)(5), added par. (1)
    and struck out former par. (1) which read as follows: "The Act
    entitled 'An Act to provide conditions for the purchase of supplies
    and the making of contracts by the United States, and for other
    purposes', approved June 30, 1936 (commonly referred to as the
    'Walsh-Healey Act') (41 U.S.C. 35-45)."
      Subsecs. (j), (k). Pub. L. 104-106, Sec. 4101(a), added subsec.
    (j) and redesignated former subsec. (j) as (k).
      1994 - Subsec. (a)(1)(A). Pub. L. 103-355, Sec. 1001(1),
    substituted "Federal Acquisition Regulation" for "modifications to
    regulations promulgated pursuant to section 2752 of the Competition
    in Contracting Act of 1984 (41 U.S.C. 403 note)".
      Subsec. (b)(1)(D) to (F). Pub. L. 103-355, Sec. 1002(a), added
    subpars. (D) to (F).
      Subsec. (b)(4). Pub. L. 103-355, Sec. 1002(b), added par. (4).
      Subsec. (c)(3)(C). Pub. L. 103-355, Sec. 1005, added subpar. (C).
      Subsec. (c)(5). Pub. L. 103-355, Sec. 7203(a)(1)(A), inserted
    "subject to subsection (j)," after "(5)".
      Subsec. (f)(1)(B)(i). Pub. L. 103-355, Sec. 1003, inserted before
    semicolon at end "or by an official referred to in clause (ii),
    (iii), or (iv)".
      Subsec. (g)(1). Pub. L. 103-355, Secs. 1001(2), 4401(a)(1),
    substituted "Federal Acquisition Regulation" for "regulations
    modified in accordance with section 2752 of the Competition in
    Contracting Act of 1984 (41 U.S.C. 403 note)" and "purchases of
    property and services for amounts not greater than the simplified
    acquisition threshold" for "small purchases of property and
    services".
      Subsec. (g)(2). Pub. L. 103-355, Sec. 4401(a)(4), substituted
    "simplified acquisition threshold" for "small purchase threshold"
    and "simplified procedures" for "small purchase procedures".
      Pub. L. 103-355, Sec. 4401(a)(2), (3), redesignated par. (3) as
    (2) and struck out former par. (2) which read as follows: "For the
    purposes of this subsection, a small purchase is a purchase or
    contract for an amount which does not exceed the small purchase
    threshold."
      Subsec. (g)(3). Pub. L. 103-355, Sec. 4401(a)(5), substituted
    "simplified procedures" for "small purchase procedures".
      Pub. L. 103-355, Sec. 4401(a)(3), redesignated par. (4) as (3).
    Former par. (3) redesignated (2).
      Subsec. (g)(4). Pub. L. 103-355, Sec. 4401(a)(3), redesignated
    par. (4) as (3).
      Subsec. (j). Pub. L. 103-355, Sec. 7203(a)(1)(B), added subsec.
    (j).
      Pub. L. 103-355, Sec. 1004(b), struck out subsec. (j) which
    related to authority of Secretary of Defense to enter into master
    agreements for advisory and assistance services.
      1993 - Subsec. (f)(1)(B)(iii), (iv), (6)(C). Pub. L. 103-160
    substituted "Under Secretary of Defense for Acquisition and
    Technology" for "Under Secretary of Defense for Acquisition".
      1992 - Subsec. (b)(2). Pub. L. 102-484, Sec. 801(h)(2),
    substituted "section 2323 of this title" for "section 1207 of the
    National Defense Authorization Act for Fiscal Year 1987 (10 U.S.C.
    2301 note)".
      Subsec. (j)(3)(A). Pub. L. 102-484, Sec. 1052(23), substituted
    "section 8(d) of the Small Business Act (15 U.S.C. 637(d))" for
    "section 8(e) of the Small Business Act (15 U.S.C. 637(e))".
      Subsec. (j)(5). Pub. L. 102-484, Sec. 816, substituted "on
    September 30, 1994." for "at the end of the three-year period
    beginning on the date on which final regulations prescribed to
    carry out this subsection take effect."
      1991 - Subsec. (g)(2). Pub. L. 102-25, Sec. 701(d)(2)(A)(i),
    substituted "subsection" for "chapter".
      Subsec. (g)(5). Pub. L. 102-25, Sec. 701(d)(2)(A)(ii), struck out
    par. (5) which provided that in this subsection, the term "small
    purchase threshold" has the meaning given such term in section
    403(11) of title 41. See section 2302(7) of this title.
      Subsec. (j)(3)(A). Pub. L. 102-25, Sec. 701(d)(2)(B), substituted
    "the small purchase threshold" for "$25,000".
      1990 - Subsec. (g). Pub. L. 101-510 substituted "the small
    purchase threshold" for "$25,000" in pars. (2) and (3) and added
    par. (5).
      1989 - Subsec. (b)(2). Pub. L. 101-189, Sec. 853(d), substituted
    "The head of an agency" for "An executive agency" and "concerns
    other than" for "other than" and inserted before period at end "and
    concerns other than small business concerns, historically Black
    colleges and universities, and minority institutions in furtherance
    of section 1207 of the National Defense Authorization Act for
    Fiscal Year 1987 (10 U.S.C. 2301 note)".
      Subsec. (f)(1)(B)(iii). Pub. L. 101-189, Sec. 818(a)(1), (3),
    added cl. (iii). Former cl. (iii) redesignated (iv).
      Subsec. (f)(1)(B)(iv). Pub. L. 101-189, Sec. 818(a)(2), (c)(1),
    redesignated cl. (iii) as (iv) and substituted "$50,000,000" for
    "$10,000,000" and "paragraph (6)(C)" for "paragraph (6)(B)".
      Subsec. (f)(2)(E). Pub. L. 101-189, Sec. 817(a), added subpar.
    (E).
      Subsec. (f)(4). Pub. L. 101-189, Sec. 817(b), inserted ", and any
    document prepared pursuant to paragraph (2)(E)," after "any related
    information".
      Subsec. (f)(6)(B). Pub. L. 101-189, Sec. 818(b)(2), added subpar.
    (B). Former subpar. (B) redesignated (C).
      Subsec. (f)(6)(C). Pub. L. 101-189, Sec. 818(b)(1), (c)(2),
    redesignated subpar. (B) as (C) and substituted "paragraph
    (1)(B)(iv)" for "paragraph (1)(B)(iii)".
      Subsec. (j). Pub. L. 101-189, Sec. 812, added subsec. (j).
      1988 - Subsec. (f)(1)(B)(ii). Pub. L. 100-456, Sec. 803(1),
    substituted "(or the head of the procuring activity's delegate
    designated pursuant to paragraph (6)(A));" for "or 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 grade GS-16 or above
    under the General Schedule (or in a comparable or higher position
    under another schedule);".
      Subsec. (f)(1)(B)(iii). Pub. L. 100-456, Sec. 803(2), inserted
    "or in the case of the Under Secretary of Defense for Acquisition,
    acting in his capacity as the senior procurement executive for the
    Department of Defense, the Under Secretary's delegate designated
    pursuant to paragraph (6)(B)" before semicolon at end.
      Subsec. (f)(6). Pub. L. 100-456, Sec. 803(3), added par. (6).
      1987 - Subsec. (a)(1)(A). Pub. L. 100-26, Sec. 7(d)(3)(A),
    inserted "(41 U.S.C. 403 note)" after "Competition in Contracting
    Act of 1984".
      Subsec. (f)(1)(C). Pub. L. 100-26, Sec. 7(d)(3)(B), inserted "(41
    U.S.C. 416)" after "Policy Act".
      Subsec. (g)(1). Pub. L. 100-26, Sec. 7(d)(3)(A), inserted "(41
    U.S.C. 403 note)" after "Act of 1984".
      1986 - Subsec. (b)(2). Pub. L. 99-661, Sec. 1343(a)(14),
    substituted "15 U.S.C. 638," for "15 U.S.C. 639;".
      Subsec. (c)(1). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
    [Sec. 923(a)], Pub. L. 99-661, Sec. 923(a), amended par. (1)
    identically, inserting "or only from a limited number of
    responsible sources".
      Subsec. (d)(1)(A). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
    [Sec. 923(b)], Pub. L. 99-661, Sec. 923(b), amended subpar. (A)
    identically, substituting "a concept - " for "a unique and
    innovative concept", adding cl. (i), and designating provision
    relating to nonavailability to the United States and nonresemblance
    to a pending competitive procurement as cl. (ii).
      Subsec. (d)(1)(B). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
    [Sec. 923(c)], Pub. L. 99-661, Sec. 923(c), amended subpar. (B)
    identically, inserting ", or the continued provision of highly
    specialized services, such property or services may be deemed to be
    available only from the original source and may be procured through
    procedures other than competitive procedures" after "highly
    specialized equipment", inserted a one-em dash after "would result
    in", paragraphed cls. (i) and (ii), in cl. (i) substituted
    "competition;" for "competition,", and in cl. (ii) struck out ",
    such property may be deemed to be available only from the original
    source and may be procured through procedures other than
    competitive procedures" after "agency's needs".
      Subsec. (i). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec.
    927(a)], Pub. L. 99-661, Sec. 927(a), amended section identically,
    adding subsec. (i).
      1985 - Subsec. (a)(1)(B). Pub. L. 99-145, Sec. 1303(a)(13),
    substituted "procedures" for "krocedures".
      Subsec. (f)(2). Pub. L. 99-145, Sec. 961(a)(1), amended second
    sentence generally. Prior to amendment, second sentence read as
    follows: "The justification and approval required by paragraph (1)
    is not required in the case of a procurement permitted by
    subsection (c)(7) or in the case of a procurement conducted under -
    
        "(A) the Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly
      referred to as the Wagner-O'Day Act; or
        "(B) the authority of section 8(a) of the Small Business Act
      (15 U.S.C. 637)."
      1984 - Pub. L. 98-369, Sec. 2723(a), substituted "Contracts:
    competition requirements" for "Purchases and contracts: formal
    advertising; exceptions" in section catchline and struck out
    subsecs. (a) to (e) and (g) to (i), redesignated subsec. (f) as
    (h), and added new subsecs. (a) through (g), thereby removing the
    prior statutory preference for formal advertising and installing
    instead more competitive procurement procedures, including dual
    sourcing, but with provision for the use of other than competitive
    procedures in specified situations.
      Subsec. (b)(2). Pub. L. 98-577, Sec. 504(b)(1), substituted
    provisions to the effect that executive agencies may provide for
    procurement of property or services covered by this section using
    competitive procedures but excluding other than small business
    concerns for provisions which provided that executive agencies
    shall use competitive procedures but may restrict a solicitation to
    allow only small business concerns to compete.
      Subsec. (b)(3). Pub. L. 98-577, Sec. 504(b)(1), added par. (3).
      Subsec. (f)(2). Pub. L. 98-577, Sec. 504(b)(2), designated
    existing provisions as subpar. (A) and added subpar. (B).
      Subsec. (h). Pub. L. 98-369, Sec. 2727(b), substituted "contracts
    awarded after using procedures other than sealed-bid procedures
    shall be treated as if they were made with sealed bid procedures"
    for "contracts negotiated under this section shall be treated as if
    they were made with formal advertising".
      Pub. L. 98-369, Sec. 2723(a)(1)(B), redesignated subsec. (f) as
    (h).
      1982 - Subsec. (a). Pub. L. 97-295, Sec. 1(24)(A), inserted ",
    and shall be awarded on a competitive bid basis to the lowest
    responsible bidder," after "formal advertising".
      Subsec. (e). Pub. L. 97-375 repealed subsec. (e) which directed
    that a report be made on May and November 19 of each year of
    purchases and contracts under cls. (11) and (16) of subsec. (a)
    since the last report, and that the report name each contractor,
    state the amount of each contract, and describe, with consideration
    of the national security, the property and services covered by each
    contract.
      Subsec. (f)(1). Pub. L. 97-295, Sec. 1(24)(B), substituted
    "Healey" for "Healy" after "Walsh-".
      Subsec. (i). Pub. L. 97-295, Sec. 1(24)(C), added subsec. (i).
      1981 - Subsecs. (a)(3), (g). Pub. L. 97-86 substituted "$25,000"
    for "$10,000".
      1980 - Subsec. (f). Pub. L. 96-513 substituted "(1) The Act
    entitled 'An Act to provide conditions for the purchase of supplies
    and the making of contracts by the United States, and for other
    purposes', approved June 30, 1936 (commonly referred to as the
    'Walsh-Healy Act') (41 U.S.C. 35-45).", for "(1) Sections 35-45 of
    title 41.", and "(2) The Act entitled 'An Act relating to the rate
    of wages for laborers and mechanics employed on public buildings of
    the United States and the District of Columbia by contractors and
    subcontractors, and for other purposes', approved March 3, 1931
    (commonly referred to as the 'Davis-Bacon Act') (40 U.S.C. 276a -
    276a-5)." for "(2) Sections 276a - 276a-5 of title 40.", and struck
    out "(3) Sections 324 and 325a of title 40".
      1974 - Subsec. (a)(3). Pub. L. 93-356, Sec. 4(a), substituted
    "$10,000" for "$2,500".
      Subsec. (g). Pub. L. 93-356, Sec. 4(b), substituted "$10,000" for
    "$2,500".
      1968 - Subsec. (g). Pub. L. 90-500 required that the proposals
    solicited from the maximum number of qualified sources, consistent
    with the nature and requirements of the supplies or services to be
    procured, include price.
      Subsec. (h). Pub. L. 90-268 added subsec. (h).
      1962 - Subsec. (a). Pub. L. 87-653, Sec. 1(a), (b), provided that
    formal advertising be used where feasible and practicable under
    existing conditions and circumstances, subjected the agency head to
    the requirements of section 2310 of this title before negotiating a
    contract where formal advertising is not feasible and practicable
    and, in par. (14), substituted "would be likely to result in
    additional cost to the Government by reason of duplication of
    investment or would result in duplication of necessary preparation
    which would unduly delay the procurement of the property;" for "and
    competitive bidding might require duplication of investment or
    preparation already made or would unduly delay the procurement of
    that property; or".
      Subsec. (g). Pub. L. 87-653, Sec. 1(c), added subsec. (g).
      1958 - Subsec. (a). Pub. L. 85-861 included Commonwealths in cl.
    (6).
      Pub. L. 85-800 substituted "$2,500" for "$1,000" in cl. (3) and
    inserted "or nonperishable" in cl. (9).

                     EFFECTIVE DATE OF 1997 AMENDMENT                 
      Amendment by section 850(f)(3)(B) of Pub. L. 105-85 effective 180
    days after Nov. 18, 1997, see section 850(g) of Pub. L. 105-85, set
    out as a note under section 2302c of this title.

                     EFFECTIVE DATE OF 1996 AMENDMENT                 
      For effective date and applicability of amendments by Pub. L. 104-
    106, see section 4401 of Pub. L. 104-106, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1986 AMENDMENT                 
      Section 101(c) [title X, Sec. 923(d)] of Pub. L. 99-500 and Pub.
    L. 99-591, and section 923(d) of title IX, formerly title IV of
    Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273, provided that:
      "(1) The amendment made by subsection (a) [amending this section]
    shall apply with respect to contracts for which solicitations are
    issued after the end of the 180-day period beginning on the date of
    the enactment of this Act [Oct. 18, 1986].
      "(2) The amendment made by subsection (b) [amending this section]
    shall apply with respect to contracts awarded on the basis of
    unsolicited research proposals after the end of the 180-day period
    beginning on the date of the enactment of this Act.
      "(3) The amendments made by subsection (c) [amending this
    section] shall apply with respect to follow-on contracts awarded
    after the end of the 180-day period beginning on the date of the
    enactment of this Act."

                     EFFECTIVE DATE OF 1985 AMENDMENT                 
      Section 961(e) of Pub. L. 99-145 provided that: "The amendments
    made by subsections (a) [amending this section and section 253 of
    Title 41, Public Contracts], (b) [amending section 2323 (now
    section 2343) of this title], and (c) [amending section 759 of
    former Title 40, Public Buildings, Property, and Works] shall take
    effect as if included in the enactment of the Competition in
    Contracting Act of 1984 (title VII of division B of Public Law 98-
    369) [see Effective Date of 1985 Amendment note set out under
    section 251 of Title 41]."

                     EFFECTIVE DATE OF 1984 AMENDMENT                 
      Amendment by Pub. L. 98-369 applicable with respect to any
    solicitation for bids or proposals issued after Mar. 31, 1985, see
    section 2751 of Pub. L. 98-369, set out as a note under section 251
    of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1980 AMENDMENT                 
      Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section
    701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of
    this title.

                     EFFECTIVE DATE OF 1962 AMENDMENT                 
      Section 1(h) of Pub. L. 87-653 provided that: "The amendments
    made by this Act [amending this section and sections 2306, 2310,
    and 2311 of this title] shall take effect on the first day of the
    third calendar month which begins after the date of enactment of
    this Act [Sept. 10, 1962]."

                     EFFECTIVE DATE OF 1958 AMENDMENT                 
      Amendment by Pub. L. 85-861 effective Aug. 10, 1956, see section
    33(g) of Pub. L. 85-861, set out as a note under section 101 of
    this title.

                      CONSTRUCTION OF 1994 AMENDMENT                  
      Repeal of prior subsec. (j) of this section by section 1004(b) of
    Pub. L. 103-355 not to be construed as modifying or superseding, or
    as intended to impair or restrict, authorities or responsibilities
    under former section 759 or former subchapter VI (Sec. 541 et seq.)
    of chapter 10 of Title 40 [now chapter 11 of Title 40, Public
    Buildings, Property, and Works], see section 1004(d) of Pub. L. 103-
    355, set out as a note under section 2304a of this title.

                      CONSTRUCTION OF 1984 AMENDMENT                  
      Section 2723(c) of Pub. L. 98-369 provided that: "The amendments
    made by this section [amending this section and section 2305 of
    this title] do not supersede or affect the provisions of section
    8(a) of the Small Business Act (15 U.S.C. 637(a))."

     INTERNAL CONTROLS FOR PROCUREMENTS ON BEHALF OF THE DEPARTMENT OF
                                  DEFENSE
      Pub. L. 109-364, div. A, title VIII, Sec. 817, Oct. 17, 2006, 120
    Stat. 2326, provided that:
      "(a) Inspector General Reviews and Determinations. - 
        "(1) In general. - For each covered non-defense agency, the
      Inspector General of the Department of Defense and the Inspector
      General of such non-defense agency shall, not later than March
      15, 2007, jointly - 
          "(A) review - 
            "(i) the procurement policies, procedures, and internal
          controls of such non-defense agency that are applicable to
          the procurement of property and services on behalf of the
          Department by such non-defense agency; and
            "(ii) the administration of those policies, procedures, and
          internal controls; and
          "(B) determine in writing whether - 
            "(i) such non-defense agency is compliant with defense
          procurement requirements;
            "(ii) such non-defense agency is not compliant with defense
          procurement requirements, but has a program or initiative to
          significantly improve compliance with defense procurement
          requirements;
            "(iii) neither of the conclusions stated in clauses (i) and
          (ii) is correct in the case of such non-defense agency; or
            "(iv) such non-defense agency is not compliant with defense
          procurement requirements to such an extent that the interests
          of the Department of Defense are at risk in procurements
          conducted by such non-defense agency.
        "(2) Actions following certain determinations. - If the
      Inspectors General determine under paragraph (1) that a
      conclusion stated in clause (ii), (iii), or (iv) of subparagraph
      (B) of that paragraph is correct in the case of a covered non-
      defense agency, such Inspectors General shall, not later than
      June 15, 2008, jointly - 
          "(A) conduct a second review, as described in subparagraph
        (A) of that paragraph, regarding such non-defense agency's
        procurement of property or services on behalf of the Department
        of Defense in fiscal year 2007; and
          "(B) determine in writing whether such non-defense agency is
        or is not compliant with defense procurement requirements.
      "(b) Compliance With Defense Procurement Requirements. - For the
    purposes of this section, a covered non-defense agency is compliant
    with defense procurement requirements if such non-defense agency's
    procurement policies, procedures, and internal controls applicable
    to the procurement of products and services on behalf of the
    Department of Defense, and the manner in which they are
    administered, are adequate to ensure such non-defense agency's
    compliance with the requirements of laws and regulations that apply
    to procurements of property and services made directly by the
    Department of Defense.
      "(c) Memoranda of Understanding Between Inspectors General. - 
        "(1) In general. - Not later than 60 days after the date of the
      enactment of this Act [Oct. 17, 2006], the Inspector General of
      the Department of Defense and the Inspector General of each
      covered non-defense agency shall enter into a memorandum of
      understanding with each other to carry out the reviews and make
      the determinations required by this section.
        "(2) Scope of memoranda. - The Inspector General of the
      Department of Defense and the Inspector General of a covered non-
      defense agency may by mutual agreement conduct separate reviews
      of the procurement of property and services on behalf of the
      Department of Defense that are conducted by separate business
      units, or under separate governmentwide acquisition contracts, of
      such non-defense agency. In any case where such separate reviews
      are conducted, the Inspectors General shall make separate
      determinations under paragraph (1) or (2) of subsection (a), as
      applicable, with respect to each such separate review.
      "(d) Limitations on Procurements on Behalf of Department of
    Defense. - 
        "(1) Limitation during review period. - After March 15, 2007,
      and before June 16, 2008, no official of the Department of
      Defense may, except as provided in subsection (e) or (f), order,
      purchase, or otherwise procure property or services in an amount
      in excess of $100,000 through a covered non-defense agency for
      which a determination described in clause (iii) or (iv) of
      paragraph (1)(B) of subsection (a) has been made under subsection
      (a).
        "(2) Limitation after review period. - After June 15, 2008, no
      official of the Department of Defense may, except as provided in
      subsection (e) or (f), order, purchase, or otherwise procure
      property or services in an amount in excess of $100,000 through a
      covered non-defense agency that, having been subject to review
      under this section, has not been determined under this section as
      being compliant with defense procurement requirements.
        "(3) Limitation following failure to reach mou. - Commencing on
      the date that is 60 days after the date of the enactment of this
      Act [Oct. 17, 2006], if a memorandum of understanding between the
      Inspector General of the Department of Defense and the Inspector
      General of a covered non-defense agency cannot be attained
      causing the review required by this section to not be performed,
      no official of the Department of Defense, except as provided in
      subsection (e) or (f), may order, purchase or otherwise procure
      property or services in an amount in excess of $100,000 through
      such non-defense agency.
      "(e) Exception From Applicability of Limitations. - 
        "(1) Exception. - No limitation applies under subsection (d)
      with respect to the procurement of property and services on
      behalf of the Department of Defense by a covered non-defense
      agency during any period that there is in effect a determination
      of the Under Secretary of Defense for Acquisition, Technology,
      and Logistics, made in writing, that it is necessary in the
      interest of the Department of Defense to continue to procure
      property and services through such non-defense agency.
        "(2) Applicability of determination. - A written determination
      with respect to a covered non-defense agency under paragraph (1)
      is in effect for the period, not in excess of one year, that the
      Under Secretary shall specify in the written determination. The
      Under Secretary may extend from time to time, for up to one year
      at a time, the period for which the written determination remains
      in effect.
      "(f) Termination of Applicability of Limitations. - Subsection
    (d) shall cease to apply to a covered non-defense agency on the
    date on which the Inspector General of the Department of Defense
    and the Inspector General of such non-defense agency jointly - 
        "(1) determine that such non-defense agency is compliant with
      defense procurement requirements; and
        "(2) notify the Secretary of Defense of that determination.
      "(g) Identification of Procurements Made During a Particular
    Fiscal Year. - For the purposes of subsection (a), a procurement
    shall be treated as being made during a particular fiscal year to
    the extent that funds are obligated by the Department of Defense
    for that procurement in that fiscal year.
      "(h) Resolution of Disagreements. - If the Inspector General of
    the Department of Defense and the Inspector General of a covered
    non-defense agency are unable to agree on a joint determination
    under subsection (a) or (f), a determination by the Inspector
    General of the Department of Defense under such subsection shall be
    conclusive for the purposes of this section.
      "(i) Definitions. - In this section:
        "(1) The term 'covered non-defense agency' means each of the
      following:
          "(A) The Department of Veterans Affairs.
          "(B) The National Institutes of Health.
        "(2) The term 'governmentwide acquisition contract', with
      respect to a covered non-defense agency, means a task or delivery
      order contract that - 
          "(A) is entered into by the non-defense agency; and
          "(B) may be used as the contract under which property or
        services are procured for one or more other departments or
        agencies of the Federal Government."
      Pub. L. 109-163, div. A, title VIII, Sec. 811, Jan. 6, 2006, 119
    Stat. 3374, provided that:
      "(a) Inspector General Reviews and Determinations. - 
        "(1) In general. - For each covered non-defense agency, the
      Inspector General of the Department of Defense and the Inspector
      General of such non-defense agency shall, not later than March
      15, 2006, jointly - 
          "(A) review - 
            "(i) the procurement policies, procedures, and internal
          controls of such non-defense agency that are applicable to
          the procurement of property and services on behalf of the
          Department by such non-defense agency; and
            "(ii) the administration of those policies, procedures, and
          internal controls; and
          "(B) determine in writing whether - 
            "(i) such non-defense agency is compliant with defense
          procurement requirements;
            "(ii) such non-defense agency is not compliant with defense
          procurement requirements, but has a program or initiative to
          significantly improve compliance with defense procurement
          requirements; or
            "(iii) neither of the conclusions stated in clauses (i) and
          (ii) is correct in the case of such non-defense agency.
        "(2) Actions following certain determinations. - If the
      Inspectors General determine under paragraph (1) that the
      conclusion stated in clause (ii) or (iii) of subparagraph (B) of
      that paragraph is correct in the case of a covered non-defense
      agency, such Inspectors General shall, not later than June 15,
      2007, jointly - 
          "(A) conduct a second review, as described in subparagraph
        (A) of that paragraph, regarding such non-defense agency's
        procurement of property or services on behalf of the Department
        of Defense in fiscal year 2006; and
          "(B) determine in writing whether such non-defense agency is
        or is not compliant with defense procurement requirements.
      "(b) Compliance With Defense Procurement Requirements. - For the
    purposes of this section, a covered non-defense agency is compliant
    with defense procurement requirements if such non-defense agency's
    procurement policies, procedures, and internal controls applicable
    to the procurement of products and services on behalf of the
    Department of Defense, and the manner in which they are
    administered, are adequate to ensure such non-defense agency's
    compliance with the requirements of laws and regulations that apply
    to procurements of property and services made directly by the
    Department of Defense.
      "(c) Memoranda of Understanding Between Inspectors General. - 
        "(1) In general. - Not later than 60 days after the date of the
      enactment of this Act [Jan. 6, 2006], the Inspector General of
      the Department of Defense and the Inspector General of each
      covered non-defense agency shall enter into a memorandum of
      understanding with each other to carry out the reviews and make
      the determinations required by this section.
        "(2) Scope of memoranda. - The Inspector General of the
      Department of Defense and the Inspector General of a covered non-
      defense agency may by mutual agreement conduct separate reviews
      of the procurement of property and services on behalf of the
      Department of Defense that are conducted by separate business
      units, or under separate governmentwide acquisition contracts, of
      such non-defense agency. In any case where such separate reviews
      are conducted, the Inspectors General shall make separate
      determinations under paragraph (1) or (2) of subsection (a), as
      applicable, with respect to each such separate review.
      "(d) Limitations on Procurements on Behalf of Department of
    Defense. - 
        "(1) Limitation during review period. - After March 15, 2006,
      and before June 16, 2007, no official of the Department of
      Defense may, except as provided in subsection (e) or (f), order,
      purchase, or otherwise procure property or services in an amount
      in excess of $100,000 through a covered non-defense agency for
      which a determination described in paragraph (1)(B)(iii) of
      subsection (a) has been made under that subsection.
        "(2) Limitation after review period. - After June 15, 2007, no
      official of the Department of Defense may, except as provided in
      subsection (e) or (f), order, purchase, or otherwise procure
      property or services in an amount in excess of $100,000 through a
      covered non-defense agency that, having been subject to review
      under this section, has not been determined under this section as
      being compliant with defense procurement requirements.
        "(3) Limitation following failure to reach mou. - Commencing on
      the date that is 60 days after the date of the enactment of this
      Act [Jan. 6, 2006], if a memorandum of understanding between the
      Inspector General of the Department of Defense and the Inspector
      General of a covered non-defense agency cannot be attained
      causing the review required by this section to not be performed,
      no official of the Department of Defense, except as provided in
      subsection (e) or (f), may order, purchase or otherwise procure
      property or services in an amount in excess of $100,000 through
      such non-defense agency.
      "(e) Exception From Applicability of Limitations. - 
        "(1) Exception. - No limitation applies under subsection (d)
      with respect to the procurement of property and services on
      behalf of the Department of Defense by a covered non-defense
      agency during any period that there is in effect a determination
      of the Under Secretary of Defense for Acquisition, Technology,
      and Logistics, made in writing, that it is necessary in the
      interest of the Department of Defense to continue to procure
      property and services through such non-defense agency.
        "(2) Applicability of determination. - A written determination
      with respect to a covered non-defense agency under paragraph (1)
      is in effect for the period, not in excess of one year, that the
      Under Secretary shall specify in the written determination. The
      Under Secretary may extend from time to time, for up to one year
      at a time, the period for which the written determination remains
      in effect.
      "(f) Termination of Applicability of Limitations. - Subsection
    (d) shall cease to apply to a covered non-defense agency on the
    date on which the Inspector General of the Department of Defense
    and the Inspector General of such non-defense agency jointly - 
        "(1) determine that such non-defense agency is compliant with
      defense procurement requirements; and
        "(2) notify the Secretary of Defense of that determination.
      "(g) Identification of Procurements Made During a Particular
    Fiscal Year. - For the purposes of subsection (a), a procurement
    shall be treated as being made during a particular fiscal year to
    the extent that funds are obligated by the Department of Defense
    for that procurement in that fiscal year.
      "(h) Definitions. - In this section:
        "(1) The term 'covered non-defense agency' means each of the
      following:
          "(A) The Department of the Treasury.
          "(B) The Department of the Interior.
          "(C) The National Aeronautics and Space Administration.
        "(2) The term 'governmentwide acquisition contract', with
      respect to a covered non-defense agency, means a task or delivery
      order contract that - 
          "(A) is entered into by the non-defense agency; and
          "(B) may be used as the contract under which property or
        services are procured for 1 or more other departments or
        agencies of the Federal Government."

    EMPLOYMENT OF STATE RESIDENTS IN STATES HAVING UNEMPLOYMENT RATE IN
                        EXCESS OF NATIONAL AVERAGE
      Pub. L. 109-289, div. A, title VIII, Sec. 8048, Sept. 29, 2006,
    120 Stat. 1284, provided that: "Notwithstanding any other provision
    of law, each contract awarded by the Department of Defense during
    the current fiscal year and hereafter for construction or service
    performed in whole or in part in a State (as defined in section
    381(d) of title 10, United States Code) which is not contiguous
    with another State and has an unemployment rate in excess of the
    national average rate of unemployment as determined by the
    Secretary of Labor, shall include a provision requiring the
    contractor to employ, for the purpose of performing that portion of
    the contract in such State that is not contiguous with another
    State, individuals who are residents of such State and who, in the
    case of any craft or trade, possess or would be able to acquire
    promptly the necessary skills: Provided, That the Secretary of
    Defense may waive the requirements of this section, on a case-by-
    case basis, in the interest of national security."

     REVIEW AND DEMONSTRATION PROJECT RELATING TO CONTRACTOR EMPLOYEES 
      Pub. L. 108-375, div. A, title VIII, Sec. 851, Oct. 28, 2004, 118
    Stat. 2019, provided that:
      "(a) General Review. - (1) The Secretary of Defense shall conduct
    a review of policies, procedures, practices, and penalties of the
    Department of Defense relating to employees of defense contractors
    for purposes of ensuring that the Department of Defense is in
    compliance with Executive Order No. 12989 [8 U.S.C. 1324a note]
    (relating to a prohibition on entering into contracts with
    contractors that are not in compliance with the Immigration and
    Nationality Act [8 U.S.C. 1101 et seq.]).
      "(2) In conducting the review, the Secretary shall - 
        "(A) identify potential weaknesses and areas for improvement in
      existing policies, procedures, practices, and penalties;
        "(B) develop and implement reforms to strengthen, upgrade, and
      improve policies, procedures, practices, and penalties of the
      Department of Defense and its contractors; and
        "(C) review and analyze reforms developed pursuant to this
      paragraph to identify for purposes of national implementation
      those which are most efficient and effective.
      "(3) The review under this subsection shall be completed not
    later than 180 days after the date of the enactment of this Act
    [Oct. 28, 2004].
      "(b) Demonstration Project. - The Secretary of Defense shall
    conduct a demonstration project in accordance with this section, in
    one or more regions selected by the Secretary, for purposes of
    promoting greater contracting opportunities for contractors
    offering effective, reliable staffing plans to perform defense
    contracts that ensure all contract personnel employed for such
    projects, including management employees, professional employees,
    craft labor personnel, and administrative personnel, are lawful
    residents or persons properly authorized to be employed in the
    United States and properly qualified to perform services required
    under the contract. The demonstration project shall focus on
    contracts for construction, renovation, maintenance, and repair
    services for military installations.
      "(c) Demonstration Project Procurement Procedures. - As part of
    the demonstration project under subsection (b), the Secretary of
    Defense may conduct a competition in which there is a provision in
    contract solicitations and request for proposal documents to
    require significant weight or credit be allocated to - 
        "(1) reliable, effective workforce programs offered by
      prospective contractors that provide background checks and other
      measures to ensure the contractor is in compliance with the
      Immigration and Nationality Act; and
        "(2) reliable, effective project staffing plans offered by
      prospective contractors that specify for all contract employees
      (including management employees, professionals, and craft labor
      personnel) the skills, training, and qualifications of such
      persons and the labor supply sources and hiring plans or
      procedures used for employing such persons.
      "(d) Implementation of Demonstration Project. - The Secretary of
    Defense shall begin operation of the demonstration project required
    under this section after completion of the review under subsection
    (a), but in no event later than 270 days after the date of the
    enactment of this Act.
      "(e) Report on Demonstration Project. - Not later than six months
    after award of a contract under the demonstration project, the
    Secretary of Defense shall submit to the Committees on Armed
    Services of the Senate and House of Representatives a report
    setting forth a review of the demonstration project and
    recommendations on the actions, if any, that can be implemented to
    ensure compliance by the Department of Defense with Executive Order
    No. 12989.
      "(f) Definition. - In this section, the term 'military
    installation' means a base, camp, post, station, yard, center,
    homeport facility for any ship, or other activity under the
    jurisdiction of the Department of Defense, including any leased
    facility, which is located within any of the several States, the
    District of Columbia, the Commonwealth of Puerto Rico, American
    Samoa, the Virgin Islands, or Guam. Such term does not include any
    facility used primarily for civil works, rivers and harbors
    projects, or flood control projects."

       DEFENSE PROCUREMENTS MADE THROUGH CONTRACTS OF OTHER AGENCIES   
      Pub. L. 108-375, div. A, title VIII, Sec. 854, Oct. 28, 2004, 118
    Stat. 2022, provided that:
      "(a) Limitation. - The head of an agency may not procure goods or
    services (under section 1535 of title 31, United States Code,
    pursuant to a designation under section 11302(e) of title 40,
    United States Code, or otherwise) through a contract entered into
    by an agency outside the Department of Defense for an amount
    greater than the simplified acquisition threshold referred to in
    section 2304(g) of title 10, United States Code, unless the
    procurement is done in accordance with procedures prescribed by
    that head of an agency for reviewing and approving the use of such
    contracts.
      "(b) Effective Date. - The limitation in subsection (a) shall
    apply only with respect to orders for goods or services that are
    issued by the head of an agency to an agency outside the Department
    of Defense on or after the date that is 180 days after the date of
    the enactment of this Act [Oct. 28, 2004].
      "(c) Inapplicability to Contracts for Certain Services. - This
    section does not apply to procurements of the following services:
        "(1) Printing, binding, or blank-book work to which section 502
      of title 44, United States Code, applies.
        "(2) Services available under programs pursuant to section 103
      of the Library of Congress Fiscal Operations Improvement Act of
      2000 (Public Law 106-481; 114 Stat. 2187; 2 U.S.C. 182c).
      "(d) Annual Report. - (1) For each of fiscal years 2005 and 2006,
    each head of an agency shall submit to the Secretary of Defense a
    report on the service charges imposed on purchases made for an
    amount greater than the simplified acquisition threshold during
    such fiscal year through a contract entered into by an agency
    outside the Department of Defense.
      "(2) In the case of procurements made on orders issued by the
    head of a Defense Agency, Department of Defense Field Activity, or
    any other organization within the Department of Defense (other than
    a military department) under the authority of the Secretary of
    Defense as the head of an agency, the report under paragraph (1)
    shall be submitted by the head of that Defense Agency, Department
    of Defense Field Activity, or other organization, respectively.
      "(3) The report for a fiscal year under this subsection shall be
    submitted not later than December 31 of the calendar year in which
    such fiscal year ends.
      "(e) Definitions. - In this section:
        "(1) The term 'head of an agency' means the Secretary of
      Defense, the Secretary of the Army, the Secretary of the Navy,
      the Secretary of the Air Force.
        "(2) The term 'Defense Agency' has the meaning given such term
      in section 101(a)(11) of title 10, United States Code.
        "(3) The term 'Department of Defense Field Activity' has the
      meaning given such term in section 101(a)(12) of such title."

        RESOURCES-BASED SCHEDULES FOR COMPLETION OF PUBLIC-PRIVATE
      COMPETITIONS FOR PERFORMANCE OF DEPARTMENT OF DEFENSE FUNCTIONS
      Pub. L. 108-136, div. A, title III, Sec. 334, Nov. 24, 2003, 117
    Stat. 1443, provided that:
      "(a) Application of Timeframes. - Any interim or final deadline
    or other schedule-related milestone for the completion of a
    Department of Defense public-private competition shall be
    established solely on the basis of considered research and sound
    analysis regarding the availability of sufficient personnel,
    training, and technical resources to the Department of Defense to
    carry out such competition in a timely manner.
      "(b) Extension of Timeframes. - (1) The Department of Defense
    official responsible for managing a Department of Defense public-
    private competition shall extend any interim or final deadline or
    other schedule-related milestone established (consistent with
    subsection (a)) for the completion of the competition if the
    official determines that the personnel, training, or technical
    resources available to the Department of Defense to carry out the
    competition in a timely manner are insufficient.
      "(2) A determination under this subsection shall be made pursuant
    to procedures prescribed by the Secretary of Defense."

       COMPETITION REQUIREMENT FOR PURCHASE OF SERVICES PURSUANT TO
                         MULTIPLE AWARD CONTRACTS
      Pub. L. 107-107, div. A, title VIII, Sec. 803, Dec. 28, 2001, 115
    Stat. 1178, provided that:
      "(a) Regulations Required. - Not later than 180 days after the
    date of the enactment of this Act [Dec. 28, 2001], the Secretary of
    Defense shall promulgate in the Department of Defense Supplement to
    the Federal Acquisition Regulation regulations requiring
    competition in the purchase of services by the Department of
    Defense pursuant to multiple award contracts.
      "(b) Content of Regulations. - (1) The regulations required by
    subsection (a) shall provide, at a minimum, that each individual
    purchase of services in excess of $100,000 that is made under a
    multiple award contract shall be made on a competitive basis unless
    a contracting officer of the Department of Defense - 
        "(A) waives the requirement on the basis of a determination
      that - 
          "(i) one of the circumstances described in paragraphs (1)
        through (4) of section 2304c(b) of title 10, United States
        Code, applies to such individual purchase; or
          "(ii) a statute expressly authorizes or requires that the
        purchase be made from a specified source; and
        "(B) justifies the determination in writing.
      "(2) For purposes of this subsection, an individual purchase of
    services is made on a competitive basis only if it is made pursuant
    to procedures that - 
        "(A) require fair notice of the intent to make that purchase
      (including a description of the work to be performed and the
      basis on which the selection will be made) to be provided to all
      contractors offering such 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) Notwithstanding paragraph (2), notice may be provided to
    fewer than all contractors offering such services under a multiple
    award contract described in subsection (c)(2)(A) if notice is
    provided to as many contractors as practicable.
      "(4) A purchase may not be made pursuant to a notice that is
    provided to fewer than all contractors under paragraph (3) unless -
    
        "(A) offers were received from at least three qualified
      contractors; or
        "(B) a contracting officer of the Department of Defense
      determines in writing that no additional qualified contractors
      were able to be identified despite reasonable efforts to do so.
      "(c) Definitions. - In this section:
        "(1) The term 'individual purchase' means a task order,
      delivery order, or other purchase.
        "(2) The term 'multiple award contract' means - 
          "(A) a contract that is entered into by the Administrator of
        General Services under the multiple award schedule program
        referred to in section 2302(2)(C) of title 10, United States
        Code;
          "(B) a multiple award task order contract that is entered
        into under the authority of sections 2304a through 2304d of
        title 10, United States Code, or sections 303H through 303K of
        the Federal Property and Administrative Services Act of 1949
        (41 U.S.C. 253h through 253k); and
          "(C) any other indefinite delivery, indefinite quantity
        contract that is entered into by the head of a Federal agency
        with two or more sources pursuant to the same solicitation.
        "(3) The term 'Defense Agency' has the meaning given that term
      in section 101(a)(11) of title 10, United States Code.
      "(d) Applicability. - The regulations promulgated by the
    Secretary pursuant to subsection (a) shall take effect not later
    than 180 days after the date of the enactment of this Act [Dec. 28,
    2001] and shall apply to all individual purchases of services that
    are made under multiple award contracts on or after the effective
    date, without regard to whether the multiple award contracts were
    entered into before, on, or after such effective date."

     REQUIREMENT TO DISREGARD CERTAIN AGREEMENTS IN AWARDING CONTRACTS
                  FOR PURCHASE OF FIREARMS OR AMMUNITION
      Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 826], Oct.
    30, 2000, 114 Stat. 1654, 1654A-220, provided that: "In accordance
    with the requirements contained in the amendments enacted in the
    Competition in Contracting Act of 1984 (title VII of division B of
    Public Law 98-369; 98 Stat. 1175) [see Short Title of 1984
    Amendments note set out under section 251 of Title 41, Public
    Contracts], the Secretary of Defense may not, in awarding a
    contract for the purchase of firearms or ammunition, take into
    account whether a manufacturer or vendor of firearms or ammunition
    is a party to an agreement under which the manufacturer or vendor
    agrees to adopt limitations with respect to importing,
    manufacturing, or dealing in firearms or ammunition in the
    commercial market."

                                GAO REPORT                            
      Pub. L. 106-65, div. A, title VIII, Sec. 806(b), Oct. 5, 1999,
    113 Stat. 705, directed the Comptroller General, not later than
    Mar. 1, 2001, to submit to Congress an evaluation of the test
    program authorized by the provisions in Pub. L. 104-106, Sec. 4202
    (amending this section and section 2305 of this title and sections
    253, 253a, 416, and 427 of Title 41, Public Contracts, and enacting
    provisions set out as a note below), together with any
    recommendations that the Comptroller General considered appropriate
    regarding the test program or the use of special simplified
    procedures for purchases of commercial items in excess of the
    simplified acquisition threshold.

                  PROCUREMENT OF CONVENTIONAL AMMUNITION              
      Pub. L. 105-261, div. A, title VIII, Sec. 806, Oct. 17, 1998, 112
    Stat. 2084, provided that:
      "(a) Authority. - The official in the Department of Defense
    designated as the single manager for conventional ammunition in the
    Department shall have the authority to restrict the procurement of
    conventional ammunition to sources within the national technology
    and industrial base in accordance with the authority in section
    2304(c) of title 10, United States Code.
      "(b) Requirement. - The official in the Department of Defense
    designated as the single manager for conventional ammunition in the
    Department of Defense shall limit a specific procurement of
    ammunition to sources within the national technology and industrial
    base in accordance with section 2304(c)(3) of title 10, United
    States Code, in any case in which that manager determines that such
    limitation is necessary to maintain a facility, producer,
    manufacturer, or other supplier available for furnishing an
    essential item of ammunition or ammunition component in cases of
    national emergency or to achieve industrial mobilization.
      "(c) Conventional Ammunition Defined. - For purposes of this
    section, the term 'conventional ammunition' has the meaning given
    that term in Department of Defense Directive 5160.65, dated March
    8, 1995."

                  WARRANTY CLAIMS RECOVERY PILOT PROGRAM              
      Pub. L. 105-85, div. A, title III, Sec. 391, Nov. 18, 1997, 111
    Stat. 1716, as amended by Pub. L. 106-65, div. A, title III, Sec.
    382, Oct. 5, 1999, 113 Stat. 583; Pub. L. 107-107, div. A, title
    III, Sec. 364, Dec. 28, 2001, 115 Stat. 1068; Pub. L. 107-314, div.
    A, title III, Sec. 368, Dec. 2, 2002, 116 Stat. 2524; Pub. L. 108-
    375, div. A, title III, Sec. 343, Oct. 28, 2004, 118 Stat. 1857,
    provided that:
      "(a) Pilot Program Required. - The Secretary of Defense may carry
    out a pilot program to use commercial sources of services to
    improve the collection of Department of Defense claims under
    aircraft engine warranties.
      "(b) Contracts. - Exercising the authority provided in section
    3718 of title 31, United States Code, the Secretary of Defense may
    enter into contracts under the pilot program to provide for the
    following services:
        "(1) Collection services.
        "(2) Determination of amounts owed the Department of Defense
      for repair of aircraft engines for conditions covered by
      warranties.
        "(3) Identification and location of the sources of information
      that are relevant to collection of Department of Defense claims
      under aircraft engine warranties, including electronic data bases
      and document filing systems maintained by the Department of
      Defense or by the manufacturers and suppliers of the aircraft
      engines.
        "(4) Services to define the elements necessary for an effective
      training program to enhance and improve the performance of
      Department of Defense personnel in collecting and organizing
      documents and other information that are necessary for efficient
      filing, processing, and collection of Department of Defense
      claims under aircraft engine warranties.
      "(c) Contractor Fee. - Under the authority provided in section
    3718(d) of title 31, United States Code, a contract entered into
    under the pilot program shall provide for the contractor to be
    paid, out of the amount recovered by the contractor under the
    program, such percentages of the amount recovered as the Secretary
    of Defense determines appropriate.
      "(d) Retention of Recovered Funds. - Subject to any obligation to
    pay a fee under subsection (c), any amount collected for the
    Department of Defense under the pilot program for a repair of an
    aircraft engine for a condition covered by a warranty shall be
    credited to an appropriation available for repair of aircraft
    engines for the fiscal year in which collected and shall be
    available for the same purposes and same period as the
    appropriation to which credited.
      "(e) Regulations. - The Secretary of Defense shall prescribe
    regulations to carry out this section.
      "(f) Termination of Authority. - The pilot program shall
    terminate on September 30, 2006, and contracts entered into under
    this section shall terminate not later than that date.
      "(g) Reporting Requirement. - Not later than February 1, 2006,
    the Secretary of Defense shall submit to Congress a report on the
    pilot program, including - 
        "(1) a description of the extent to which commercial firms have
      been used to provide the services specified in subsection (b) and
      the type of services procured;
        "(2) a description of any problems that have limited the
      ability of the Secretary to utilize the pilot program to procure
      such services; and
        "(3) the recommendation of the Secretary regarding whether the
      pilot program should be made permanent or extended beyond
      September 30, 2006."

                 REQUIREMENTS RELATING TO MICRO-PURCHASES             
      Section 848 of Pub. L. 105-85 provided that:
      "(a) Requirement. - (1) Not later than October 1, 1998, at least
    60 percent of all eligible purchases made by the Department of
    Defense for an amount less than the micro-purchase threshold shall
    be made through streamlined micro-purchase procedures.
      "(2) Not later than October 1, 2000, at least 90 percent of all
    eligible purchases made by the Department of Defense for an amount
    less than the micro-purchase threshold shall be made through
    streamlined micro-purchase procedures.
      "(b) Eligible Purchases. - The Secretary of Defense shall
    establish which purchases are eligible for purposes of subsection
    (a). In establishing which purchases are eligible, the Secretary
    may exclude those categories of purchases determined not to be
    appropriate or practicable for streamlined micro-purchase
    procedures.
      "(c) Plan. - Not later than March 1, 1998, the Secretary of
    Defense shall provide to the Committee on Armed Services of the
    Senate and the Committee on National Security of the House of
    Representatives a plan to implement this section.
      "(d) Report. - Not later than March 1 in each of the years 1999,
    2000, and 2001, the Secretary of Defense shall submit to the
    congressional defense committees [Committees on Armed Services and
    Appropriations of Senate and House of Representatives] a report on
    the implementation of this section. Each report shall include - 
        "(A) the total dollar amount of all Department of Defense
      purchases for an amount less than the micro-purchase threshold in
      the fiscal year preceding the year in which the report is
      submitted;
        "(B) the total dollar amount of such purchases that were
      considered to be eligible purchases;
        "(C) the total amount of such eligible purchases that were made
      through a streamlined micro-purchase method; and
        "(D) a description of the categories of purchases excluded from
      the definition of eligible purchases established under subsection
      (b).
      "(e) Definitions. - In this section:
        "(1) The term 'micro-purchase threshold' has the meaning
      provided in section 32 of the Office of Federal Procurement
      Policy Act (41 U.S.C. 428).
        "(2) The term 'streamlined micro-purchase procedures' means
      procedures providing for the use of the Government-wide
      commercial purchase card or any other method for carrying out
      micro-purchases that the Secretary of Defense prescribes in the
      regulations implementing this subsection."

     TERMINATION OF AUTHORITY TO ISSUE SOLICITATIONS FOR PURCHASES OF
      COMMERCIAL ITEMS IN EXCESS OF SIMPLIFIED ACQUISITION THRESHOLD
      Pub. L. 104-106, div. D, title XLII, Sec. 4202(e), Feb. 10, 1996,
    110 Stat. 654, as amended by Pub. L. 106-65, div. A, title VIII,
    Sec. 806(a), Oct. 5, 1999, 113 Stat. 705; Pub. L. 107-107, div. A,
    title VIII, Sec. 823, Dec. 28, 2001, 115 Stat. 1183; Pub. L. 107-
    314, div. A, title VIII, Sec. 812(a), Dec. 2, 2002, 116 Stat.
    2609; Pub. L. 108-136, div. A, title XIV, Sec. 1443(b), Nov. 24,
    2003, 117 Stat. 1676; Pub. L. 108-375, div. A, title VIII, Sec.
    817, Oct. 28, 2004, 118 Stat. 2015, provided that: "The authority
    to issue solicitations for purchases of commercial items in excess
    of the simplified acquisition threshold pursuant to the special
    simplified procedures authorized by section 2304(g)(1) of title 10,
    United States Code, section 303(g)(1) of the Federal Property and
    Administrative Services Act of 1949 [41 U.S.C. 253(g)(1)], and
    section 31(a) of the Office of Federal Procurement Policy Act [41
    U.S.C. 427(a)], as amended by this section, shall expire January 1,
    2008. Contracts may be awarded pursuant to solicitations that have
    been issued before such authority expires, notwithstanding the
    expiration of such authority."

          REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES      
      References in laws to the rates of pay for GS-16, 17, or 18, or
    to maximum rates of pay under the General Schedule, to be
    considered references to rates payable under specified sections of
    Title 5, Government Organization and Employees, see section 529
    [title I, Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note
    under section 5376 of Title 5.

       AUTHORITY OF BASE COMMANDERS OVER CONTRACTING FOR COMMERCIAL
                                ACTIVITIES
      Pub. L. 100-180, div. A, title XI, Sec. 1111, Dec. 4, 1987, 101
    Stat. 1146, directed the Secretary of Defense to authorize the
    commander of each military installation to (1) prepare an inventory
    each fiscal year of commercial activities carried out by Government
    personnel on the military installation, (2) decide which commercial
    activities were to be reviewed pursuant to Office of Management and
    Budget Circular A-76 or any successor administrative regulation or
    policy, (3) conduct a solicitation for contracts for those
    commercial activities selected for conversion to contractor
    performance under the Circular A-76 process, and (4) assist in
    finding suitable employment for any employee of the Department of
    Defense who had been displaced because of a contract entered into
    with a contractor for performance of a commercial activity on the
    military installation; directed the Secretary to prescribe
    regulations required by the preceding authority no later than 60
    days after Dec. 4, 1987; and provided for termination of the
    authority on Oct. 1, 1989.

      EVALUATION OF CONTRACTS FOR PROFESSIONAL AND TECHNICAL SERVICES  
      Section 804 of Pub. L. 100-456, as amended by Pub. L. 103-160,
    div. A, title IX, Sec. 904(f), Nov. 30, 1993, 107 Stat. 1729,
    directed Secretary of Defense, within 120 days after Sept. 29,
    1988, to establish criteria to ensure that proposals for contracts
    for professional and technical services be evaluated on a basis
    which does not encourage contractors to propose mandatory
    uncompensated overtime for professional and technical employees
    and, within 30 days after Sept. 29, 1988, to establish an advisory
    committee to make recommendations on the criteria.

          REGULATIONS ON USE OF FIXED-PRICE DEVELOPMENT CONTRACTS      
      Pub. L. 100-456, div. A, title VIII, Sec. 807, Sept. 29, 1988,
    102 Stat. 2011, as amended by Pub. L. 103-160, div. A, title IX,
    Sec. 904(f), Nov. 30, 1993, 107 Stat. 1729, which provided that not
    later than 120 days after Sept. 29, 1988, the Secretary of Defense
    was to make certain revisions to Department of Defense regulations
    that provide for the use of fixed-price type contracts in a
    development program, was repealed by Pub. L. 109-364, div. A, title
    VIII, Sec. 818(a), Oct. 17, 2006, 120 Stat. 2329.

        PROHIBITION OF PURCHASE OF ANGOLAN PETROLEUM PRODUCTS FROM
                     COMPANIES PRODUCING OIL IN ANGOLA
      Section 842 of Pub. L. 102-484 provided that: "The prohibition in
    section 316 of the National Defense Authorization Act for Fiscal
    Year 1987 [Pub. L. 99-661] (100 Stat. 3855; 10 U.S.C. 2304 note)
    shall cease to be effective on the date on which the President
    certifies to Congress that free, fair, and democratic elections
    have taken place in Angola."
      Determination of President of the United States, No. 93-32, July
    19, 1993, 58 F.R. 40309, provided:
      Pursuant to the authority vested in me by Public Law 102-484,
    section 842 [set out as a note above], I hereby certify that free,
    fair, and democratic elections have taken place in Angola.
      You are authorized and directed to report this determination to
    the Congress and publish it in the Federal Register.
                                                     William J. Clinton.

      Section 316 of Pub. L. 99-661 provided that:
      "(a) General Rule. - The Secretary of Defense may not enter into
    a contract with a company for the purchase of petroleum products
    which originated in Angola if the company (or a subsidiary or
    partnership of the company) is engaged in the production of
    petroleum products in Angola.
      "(b) Waiver Authority. - The Secretary of Defense may waive the
    limitation in subsection (a) if the Secretary determines that such
    action is in the best interest of the United States.
      "(c) Petroleum Product Defined. - For purposes of this section,
    the term 'petroleum product' means - 
        "(1) natural or synthetic crude;
        "(2) blends of natural or synthetic crude; and
        "(3) products refined or derived from natural or synthetic
      crude or from such blends.
      "(d) Effective Date. - This section shall take effect six months
    after the date of the enactment of this Act [Nov. 14, 1986]."

                   DEADLINE FOR PRESCRIBING REGULATIONS               
      Section 101(c) [title X, Sec. 927(b)] of Pub. L. 99-500 and Pub.
    L. 99-591, and section 927(b) of title IX, formerly title IV, of
    Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273, provided that: "The Secretary of
    Defense shall prescribe the regulations required by section 2304(i)
    of such title (as added by subsection (a)) not later than 180 days
    after the date of the enactment of this Act [Oct. 18, 1986]."

                    ONE-YEAR SECURITY-GUARD PROHIBITION                
      Section 1222(b) of Pub. L. 99-661 provided that:
      "(1) Except as provided in paragraph (2), funds appropriated to
    the Department of Defense may not be obligated or expended before
    October 1, 1987, for the purpose of entering into a contract for
    the performance of security-guard functions at any military
    installation or facility.
      "(2) The prohibition in paragraph (1) does not apply - 
        "(A) to a contract to be carried out at a location outside the
      United States (including its commonwealths, territories, and
      possessions) at which military personnel would have to be used
      for the performance of the function described in paragraph (1) at
      the expense of unit readiness;
        "(B) to a contract to be carried out on a Government-owned but
      privately operated installation;
        "(C) to a contract (or the renewal of a contract) for the
      performance of a function under contract on September 24, 1983;
      or
        "(D) to a contract for the performance of security-guard
      functions if (i) the requirement for the functions arises after
      the date of the enactment of this Act [Nov. 14, 1986], and (ii)
      the Secretary of Defense determines the functions can be
      performed by contractor personnel without adversely affecting
      installation security, safety, or readiness."

      CONTRACTING OUT PERFORMANCE OF DEPARTMENT OF DEFENSE SUPPLY AND
                             SERVICE FUNCTIONS
      Section 1223 of Pub. L. 99-661, which required Secretary to
    contract for Department of Defense supplies and services from
    private sector after a cost comparison demonstrates lower cost than
    Department of Defense can provide, and to ensure that overhead
    costs considered are realistic and fair, was repealed and restated
    in section 2462 of this title by Pub. L. 100-370, Sec. 2(a)(1),
    (c)(3), July 19, 1988, 102 Stat. 853, 854.

        REPORTS ON SAVINGS OR COSTS FROM INCREASED USE OF CIVILIAN
                                 PERSONNEL
      Section 1224 of Pub. L. 99-661, which required Secretary to
    maintain cost comparison data on performance of a commercial or
    industrial type activity taken over by Department of Defense
    comparing performance by employees of private contractor to that of
    civilian employees of Department of Defense, and to submit semi-
    annual report on savings or loss to United States, was repealed
    and restated in section 2463 of this title by Pub. L. 100-370, Sec.
    2(a)(1), (c)(3), July 19, 1988, 102 Stat. 853, 854.

            LIMITATIONS ON CONTRACTING PERFORMED BY COAST GUARD        
      Pub. L. 101-225, title II, Sec. 205, Dec. 12, 1989, 103 Stat.
    1912, provided that: "Notwithstanding any other provision of law,
    an officer or employee of the United States may not enter into a
    contract for procurement of performance of any function being
    performed by Coast Guard personnel as of January 1, 1989, before - 
        "(1) a study has been performed by the Secretary of
      Transportation under the Office of Management and Budget Circular
      A-76 with respect to that procurement;
        "(2) the Secretary of Transportation has performed a study, in
      addition to the study required by paragraph (1) of this
      subsection, to determine the impact of that procurement on the
      multimission capabilities of the Coast Guard; and
        "(3) copies of the studies required by paragraphs (1) and (2)
      of this subsection are submitted to the Committee on Merchant
      Marine and Fisheries [now Committee on Transportation and
      Infrastructure] of the House of Representatives and the Committee
      on Commerce, Science, and Transportation of the Senate."
      Pub. L. 100-448, Sec. 5, Sept. 28, 1988, 102 Stat. 1837, as
    amended by Pub. L. 104-66, title I, Sec. 1121(b), Dec. 21, 1995,
    109 Stat. 724, provided that:
      "(a) Maintenance of Logistics Capability. - 
        "(1) Statement of national interest. - It is in the national
      interest for the Coast Guard to maintain a logistics capability
      (including personnel, equipment, and facilities) to provide a
      ready and controlled source of technical competence and resources
      necessary to ensure the effective and timely performance of Coast
      Guard missions in behalf of the security, safety, and economic
      and environmental well-being of the United States.
        "[(2) Repealed. Pub. L. 104-66, title I, Sec. 1121(b), Dec. 21,
      1995, 109 Stat. 724.]
      "[(b) Repealed. Pub. L. 104-66, title I, Sec. 1121(b), Dec. 21,
    1995, 109 Stat. 724.]
      "(c) Submisison [sic] of List of Activities Contracted for
    Performance. - At least 30 days before the beginning of each fiscal
    year, the Secretary shall submit to the Committee on Commerce,
    Science, and Transportation of the Senate and the Committee on
    Merchant Marine and Fisheries [now Committee on Transportation and
    Infrastructure] of the House of Representatives a list of
    activities that will be contracted for performance by non-
    Government personnel under the procedures of Office of Management
    and Budget Circular A-76 during that fiscal year.
      "(d) Employment of Local Residents To Perform Contracts. - 
        "(1) In general. - Notwithstanding any other provision of law,
      each contract awarded by the Coast Guard in fiscal years 1988 and
      1989 for construction or services to be performed in whole or in
      part in a State which has an unemployment rate in excess of the
      national average rate of unemployment (as determined by the
      Secretary of Labor) shall include a provision requiring the
      contractor to employ, for the purpose of performing that portion
      of the contract in that State, individuals who are local
      residents and who, in the case of any craft or trade, possess or
      would be able to acquire promptly the necessary skills. The
      Secretary of the department in which the Coast Guard is operating
      may waive this subsection in the interest of national security or
      economic efficiency.
        "(2) Local resident defined. - As used in this subsection, the
      term 'local resident' means a resident of a State described in
      paragraph (1), and any individual who commutes daily to a State
      described in paragraph (1)."
      [For transfer of authorities, functions, personnel, and assets of
    the Coast Guard, including the authorities and functions of the
    Secretary of Transportation relating thereto, to the Department of
    Homeland Security, and for treatment of related references, see
    sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
    Security, and the Department of Homeland Security Reorganization
    Plan of November 25, 2002, as modified, set out as a note under
    section 542 of Title 6.]
      Similar provisions were contained in the following prior
    authorization act:
      Pub. L. 99-640, Sec. 5, Nov. 10, 1986, 100 Stat. 3546.

                CONTRACTED ADVISORY AND ASSISTANCE SERVICES            
      Section 918 of Pub. L. 99-145, which provided that Secretary of
    Defense require each military department to establish accounting
    procedure to aid in control of expenditures for contracted advisory
    and assistance services, prescribe regulations to identify such
    services and which services are in direct support of a weapons
    system, consider specific list of factors in prescribing
    regulations, and identify total amount requested and separate
    category amount requested in budget documents for Department of
    Defense presented to Congress, was repealed and restated in section
    2212 of this title by Pub. L. 100-370, Sec. 1(d)(2), July 19, 1988,
    102 Stat. 842.

               ASSIGNMENT OF PRINCIPAL CONTRACTING OFFICERS           
      Section 925 of Pub. L. 99-145 required Secretary of Defense to
    develop a policy regarding mobility and regular rotation of
    principal administrative and corporate administrative contracting
    officers in Department of Defense and to report to Committees on
    Armed Services of Senate and House of Representatives not later
    than January 1, 1986, on such policy, prior to repeal by Pub. L.
    101-510, div. A, title XII, Sec. 1207(a), Nov. 5, 1990, 104 Stat.
    1665.

        PROHIBITION ON FELONS CONVICTED OF DEFENSE-CONTRACT-RELATED
       FELONIES AND PENALTY ON EMPLOYMENT OF SUCH PERSONS BY DEFENSE
                                CONTRACTORS
      Pub. L. 99-145, title IX, Sec. 932, Nov. 8, 1985, 99 Stat. 699,
    prohibited certain felons from working on defense contracts and
    penalized employment of such persons by defense contractors, prior
    to repeal by Pub. L. 99-500, Sec. 101(c) [title X, Sec. 941(b)],
    Oct. 18, 1986, 100 Stat. 1783-82, 1783-162, and Pub. L. 99-591,
    Sec. 101(c) [title X, Sec. 941(b)], Oct. 30, 1986, 100 Stat. 3341-
    82, 3341-162; Pub. L. 99-661, div. A, title IX, formerly title IV,
    Sec. 941(b), Nov. 14, 1986, 100 Stat. 3942, renumbered title IX,
    Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273.

    REIMBURSEMENT, INTEREST CHARGES, AND PENALTIES FOR OVERPAYMENTS DUE
                         TO COST AND PRICING DATA
      Pub. L. 99-145, title IX, Sec. 934(a), Nov. 8, 1985, 99 Stat.
    700, which provided for interest payments and penalties for
    overpayments due to faulty cost and pricing data, was repealed by
    Pub. L. 99-500, Sec. 101(c) [title X, Sec. 952(b)(2), (d)], Oct.
    18, 1986, 100 Stat. 1783-82, 1783-169, and Pub. L. 99-591, Sec.
    101(c) [title X, Sec. 952(b)(2), (d)], Oct. 30, 1986, 100 Stat.
    3341-82, 3341-169; Pub. L. 99-661, div. A, title IX, formerly title
    IV, Sec. 952(b)(2), (d), Nov. 14, 1986, 100 Stat. 3949, renumbered
    title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273,
    effective with respect to contracts or modifications on contracts
    entered into after the end of the 120-day period beginning on Oct.
    18, 1986.

           PERSONNEL FOR PERFORMANCE OF SERVICES AND ACTIVITIES       
      Pub. L. 99-145, title XII, Sec. 1233, Nov. 8, 1985, 99 Stat. 734,
    related to services and activities to be performed by non-
    Government personnel, prior to repeal by Pub. L. 99-661, div. A,
    title XII, Sec. 1222(c), Nov. 14, 1986, 100 Stat. 3977.

          LIMITATION ON CONTRACTING-OUT CORE LOGISTICS FUNCTIONS      
      Section 1231(a)-(e) of Pub. L. 99-145 declared that certain
    specifically described functions of the Department of Defense shall
    be deemed logistics activities necessary to maintain the logistics
    capability described in section 307(a)(1) of Pub. L. 98-525,
    formerly set out below; contained a description of the functions,
    i.e., depot-level maintenance of mission-essential materiel at
    specifically located activities of the Army, the Navy, the Marine
    Corps, the Air Force, the Defense Logistics Agency, and the Defense
    Mapping Agency; included certain matters within the specified
    functions and excluded certain functions; and defined "mission-
    essential materiel" as related to such functions.
      Section 307 of Pub. L. 98-525, as amended by Pub. L. 99-145,
    title XII, Sec. 1231(f), Nov. 8, 1985, 99 Stat. 733, which
    prohibited contracting to non-Government personnel of logistics
    activities necessary for effective response to national emergencies
    unless Secretary waives such prohibition after a determination that
    Government performance of such activity is no longer required for
    national defense reasons, and reports to Congress on waiver, was
    repealed and restated in section 2464 of this title by Pub. L. 100-
    370, Sec. 2(a)(1), (c)(2), July 19, 1988, 102 Stat. 853, 854.

            SHIPBUILDING CLAIMS FOR CONTRACT PRICE ADJUSTMENTS        
      Pub. L. 98-473, title I, Sec. 101(h) [title VIII, Sec. 8078],
    Oct. 12, 1984, 98 Stat. 1904, 1938, prohibited expenditure of funds
    to adjust any contract price in any shipbuilding claim, request for
    equitable adjustment, or demand for payment incurred due to the
    preparation, submission, or adjudication of any such shipbuilding
    claim, request, or demand under a contract entered into after Oct.
    12, 1984, arising out of events occurring more than eighteen months
    prior to the submission of such shipbuilding claim, request, or
    demand, prior to repeal by Pub. L. 100-370, Sec. 1(p)(2), July 19,
    1988, 102 Stat. 851.
      Pub. L. 98-212, title VII, Sec. 787, Dec. 8, 1983, 97 Stat. 1453,
    which contained similar provisions relating to shipbuilding claims
    for contract price adjustments, was repealed and restated in
    section 2405 of this title by Pub. L. 98-525, title XII, Sec.
    1234(a), (b)(2), Oct. 19, 1984, 98 Stat. 2604, effective Oct. 19,
    1984.

     WEAPON SYSTEM GUARANTEES; GOVERNMENT-AS-SOURCE EXCEPTION; WAIVER 
      Pub. L. 98-212, title VII, Sec. 794, Dec. 8, 1983, 97 Stat. 1454,
    provided for weapon system guarantees, Government-as-Source
    exception, and waiver, prior to repeal by Pub. L. 98-525, title
    XII, Sec. 1234(b)(1), Oct. 19, 1984, 98 Stat. 2604, effective Jan.
    1, 1985.

                     FIGHTER AIRCRAFT ENGINE WARRANTY                 
      Pub. L. 97-377, title I, Sec. 101(c) [title VII, Sec. 797], Dec.
    21, 1982, 96 Stat. 1865, provided that: "None of the funds made
    available in the Act or any subsequent Act shall be available for
    the purchase of the alternate or new model fighter aircraft engine
    that does not have a written warranty or guarantee attesting that
    it will perform not less than 3,000 tactical cycles. The warranty
    will provide that the manufacturer must perform the necessary
    improvements or replace any parts to achieve the required
    performance at no cost to the Government."

        INSURANCE TO PROTECT GOVERNMENT CONTRACTORS AGAINST COST OF
       CORRECTING CONTRACTOR'S OWN DEFECTS; REIMBURSEMENT PROHIBITED
      Pub. L. 97-12, title I, Sec. 100, June 5, 1981, 95 Stat. 29, and
    Pub. L. 97-114, title VII, Sec. 770, Dec. 29, 1981, 95 Stat. 1590,
    which provided that no funds authorized for the Department of
    Defense in fiscal year 1981 and thereafter would be available to
    reimburse a contractor for the cost of commercial insurance, except
    for that normally maintained in the conduct of his business, that
    would protect against the cost for correction for the contractor's
    own defects in materials or workmanship such as were not a
    fortuitous casualty or loss, were repealed and restated in section
    2399 of this title by Pub. L. 97-295, Secs. 1(29)(A), 6(b), Oct.
    12, 1982, 96 Stat. 1293, 1315.

        RESTRICTIONS ON CONVERSION OF PERFORMANCE OF COMMERCIAL AND
     INDUSTRIAL TYPE FUNCTIONS FROM DEPARTMENT OF DEFENSE PERSONNEL TO
              PRIVATE CONTRACTORS; ANNUAL REPORT TO CONGRESS
      Pub. L. 96-342, title V, Sec. 502, Sept. 8, 1980, 94 Stat. 1086,
    as amended by Pub. L. 97-252, title XI, Sec. 1112(a), Sept. 8,
    1982, 96 Stat. 747; Pub. L. 99-145, title XII, Sec. 1234(a), Nov.
    8, 1985, 99 Stat. 734; Pub. L. 99-661, div. A, title XII, Sec.
    1221, Nov. 14, 1986, 100 Stat. 3976, which provided that no
    commercial or industrial type function of the Department of Defense
    that on October 1, 1980, was being performed by Department of
    Defense civilian employees could be converted to performance by a
    private contractor to circumvent any civilian personnel ceiling
    unless Secretary of Defense submitted favorable cost comparisons
    and certifications, and reported annually to Congress with regard
    to such conversions, was repealed and restated in section 2461 of
    this title by Pub. L. 100-370, Sec. 2(a)(1), (c)(1), July 19, 1988,
    102 Stat. 851, 854.
      Similar provisions for fiscal year 1980 were contained in Pub. L.
    96-107, title VIII, Sec. 806, Nov. 9, 1979, 93 Stat. 813.

      CONTRACT CLAIMS; REQUEST FOR EQUITABLE ADJUSTMENT; REQUEST FOR
                           RELIEF; CERTIFICATION
      Pub. L. 95-485, title VIII, Sec. 813, Oct. 20, 1978, 92 Stat.
    1624, which prohibited payment of a contract claim, request for
    equitable adjustment, or request for relief which exceeded $100,000
    unless a senior company official certified that request was made in
    good faith and that supporting data was accurate and complete, was
    repealed and restated in section 2410 of this title by Pub. L. 100-
    370, Sec. 1(h)(2), (p)(4), July 19, 1988, 102 Stat. 847, 851.

     REPORT TO CONGRESS BY SECRETARY OF DEFENSE; CHANGES IN POLICY OR
    REGULATIONS CONCERNING USE OF PRIVATE CONTRACTORS FOR COMMERCIAL OR
     INDUSTRIAL TYPE FUNCTION AT DEPARTMENT OF DEFENSE INSTALLATIONS;
                               RESTRICTIONS
      Pub. L. 95-485, title VIII, Sec. 814, Oct. 20, 1978, 92 Stat.
    1625, directed the Secretary of Defense to report to the House and
    Senate Committees on Armed Services any proposed change in policy
    or regulations from those in effect before June 30, 1976, as to
    whether commercial or industrial functions at Defense Department
    installations in the United States, Puerto Rico, and Guam should be
    performed by Department of Defense personnel or by private
    contractors during the period Oct. 1, 1978 to Sept. 30, 1979;
    prohibited such functions to be performed privately unless such
    contractor performance began before Oct. 20, 1978 or performance
    would have been allowed by policy and regulations in effect before
    June 30, 1976; and provided that such prohibition would apply until
    the end of the 60 day period beginning on the date the report by
    the Secretary of Defense is received by the House and Senate
    Committees.

         REPORTING REQUIREMENTS FOR SECRETARY OF DEFENSE AND PRIME
       CONTRACTORS CONCERNING PAYMENTS BY PRIME CONTRACTORS FOR WORK
                        PERFORMED BY SUBCONTRACTORS
      Pub. L. 95-111, title VIII, Sec. 836, Sept. 21, 1977, 91 Stat.
    906, which directed the Secretary of Defense to require all prime
    contractors with more than $500,000 of defense contract awards to
    report in dollars at the end of each year the amount of work done
    in that year and the State where performed, and requiring the
    Secretary of Defense to report annually to Congress the amount of
    funds spent for such work in each State, was repealed and restated
    in subsec. (i) of this section by Pub. L. 97-295, Secs. 1(24)(C),
    6(b), Oct. 12, 1982, 96 Stat. 1291, 1315.

         PERFORMANCE REVIEW OF DEPARTMENT OF DEFENSE COMMERCIAL OR
                           INDUSTRIAL FUNCTIONS
      Pub. L. 95-79, title VIII, Sec. 809, July 30, 1977, 91 Stat. 334,
    directed the Secretary of Defense and the Director of the Office of
    Management and Budget to review criteria used in determining
    whether commercial or industrial type functions at Department of
    Defense installations within the United States, Puerto Rico, and
    Guam should be performed by Department of Defense personnel or by
    private contractors and to report to the House and Senate Armed
    Services Committees before Jan. 1, 1978, the results of the review;
    prohibited commercial or industrial type functions being performed
    on July 30, 1977 by Department of Defense personnel from being
    converted to performance by private contractors before the earlier
    of Mar. 15, 1978 or the end of the 90-day period beginning on the
    date the report is received by the House and Senate Committees;
    exempted from such prohibition the conversion to performance by
    private contractors of industrial or commercial type functions if
    the conversion would have been made under policies and regulations
    in effect before June 30, 1976; and required the Secretary of
    Defense to report to the House and Senate Committees on Armed
    Services before Jan. 1, 1978, detailing the Department's rationale
    for establishing goals for the percentage of work at defense
    research installations to be performed by private contractors and
    for any direction in effect on July 30, 1977 establishing a minimum
    or maximum percentage for the allocation of work at any defense
    research installation to be performed by private contractors or
    directing a change in any such allocation in effect on July 30,
    1977.

     DISCRIMINATION IN PETROLEUM SUPPLIES TO ARMED FORCES PROHIBITED;
               ENFORCEMENT PROCEDURE; PENALTIES; EXPIRATION
      Pub. L. 94-106, title VIII, Sec. 816, Oct. 7, 1975, 89 Stat. 540,
    as amended by Pub. L. 98-620, title IV, Sec. 402(8), Nov. 8, 1984,
    98 Stat. 3357, provided a remedy for discrimination by citizens of
    nationals of the United States or corporations organized or
    operating within the United States, and by organizations controlled
    by them, against the Department of Defense in the supply of
    petroleum products for two years after Oct. 7, 1975.

       ANNOUNCEMENTS OF AWARD OF CONTRACTS BY DEPARTMENT OF DEFENSE;
        DISCLOSURE OF IDENTITY OF CONTRACTOR PRIOR TO ANNOUNCEMENT
                                PROHIBITED
      Pub. L. 91-441, title V, Sec. 507, Oct. 7, 1970, 84 Stat. 913,
    which had provided that the identity or location of a recipient of
    a contract from the Department of Defense may not be revealed prior
    to the public announcement of such identity by the Secretary of
    Defense, was repealed and restated in section 2316 of this title by
    Pub. L. 97-295, Secs. 1(26)(A), 6(b), Oct. 12, 1982, 96 Stat. 1291,
    1314.

       AWARD OF CONTRACTS THROUGH FORMAL ADVERTISING AND COMPETITIVE
                         BIDDING WHERE PRACTICABLE
      Pub. L. 90-5, title III, Sec. 304, Mar. 16, 1967, 81 Stat. 6,
    which had provided that the Secretary of Defense was directed,
    insofar as practicable, that all contracts be formally advertised
    and awarded on a competitive bid basis to the lowest responsible
    bidder, was repealed and restated in subsec. (a) of this section by
    Pub. L. 97-295, Secs. 1(24)(A), 6(b), Oct. 12, 1982, 96 Stat. 1290,
    1314.

               NON-APPLICABILITY OF NATIONAL EMERGENCIES ACT           
      Provisions of the National Emergencies Act not applicable to the
    powers and authorities conferred by subsec. (a)(1) of this section
    and actions taken hereunder, see section 1651(a)(5) of Title 50,
    War and National Defense.

-End-

-CITE-
    10 USC Sec. 2304a                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2304a. Task and delivery order contracts: general authority

-STATUTE-
      (a) Authority To Award. - Subject to the requirements of this
    section, section 2304c of this title, and other applicable law, the
    head of an agency may enter into a task or delivery order contract
    (as defined in section 2304d of this title) for procurement of
    services or property.
      (b) Solicitation. - The solicitation for a task or delivery order
    contract shall include the following:
        (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, if any.
        (2) The maximum quantity or dollar value of the services or
      property to be procured under the contract.
        (3) A statement of work, specifications, or other description
      that reasonably describes the general scope, nature, complexity,
      and purposes of the services or property to be procured under the
      contract.

      (c) Applicability of Restriction on Use of Noncompetitive
    Procedures. - The head of an agency may use procedures other than
    competitive procedures to enter into a task or delivery order
    contract under this section only if an exception in subsection (c)
    of section 2304 of this title applies to the contract and the use
    of such procedures is approved in accordance with subsection (f) of
    such section.
      (d) Single and Multiple Contract Awards. - (1) The head of an
    agency may exercise the authority provided in this section - 
        (A) to award a single task or delivery order contract; or
        (B) if the solicitation states that the head of the agency has
      the option to do so, to award separate task or delivery order
      contracts for the same or similar services or property to two or
      more sources.

      (2) No determination under section 2304(b) of this title is
    required for award of multiple task or delivery order contracts
    under paragraph (1)(B).
      (3) The regulations implementing this subsection shall - 
        (A) establish a preference for awarding, to the maximum extent
      practicable, multiple task or delivery order contracts for the
      same or similar services or property under the authority of
      paragraph (1)(B); and
        (B) establish criteria for determining when award of multiple
      task or delivery order contracts would not be in the best
      interest of the Federal Government.

      (e) Contract Modifications. - A task or delivery order may not
    increase the scope, period, or maximum value of the task or
    delivery order contract under which the order is issued. The scope,
    period, or maximum value of the contract may be increased only by
    modification of the contract.
      (f) Contract Period. - The head of an agency entering into a task
    or delivery order contract under this section may provide for the
    contract to cover any period up to five years and may extend the
    contract period for one or more successive periods pursuant to an
    option provided in the contract or a modification of the contract.
    The total contract period as extended may not exceed 10 years
    unless such head of an agency determines in writing that
    exceptional circumstances necessitate a longer contract period.
      (g) Inapplicability to Contracts for Advisory and Assistance
    Services. - Except as otherwise specifically provided in section
    2304b of this title, this section does not apply to a task or
    delivery order contract for the procurement of advisory and
    assistance services (as defined in section 1105(g) of title 31).
      (h) Relationship to Other Contracting Authority. - Nothing in
    this section may be construed to limit or expand any authority of
    the head of an agency or the Administrator of General Services to
    enter into schedule, multiple award, or task or delivery order
    contracts under any other provision of law.

-SOURCE-
    (Added Pub. L. 103-355, title I, Sec. 1004(a)(1), Oct. 13, 1994,
    108 Stat. 3249; amended Pub. L. 108-136, div. A, title VIII, Sec.
    843(b), Nov. 24, 2003, 117 Stat. 1553; Pub. L. 108-375, div. A,
    title VIII, Sec. 813(a), Oct. 28, 2004, 118 Stat. 2014.)

-COD-
                               CODIFICATION                           
      Another section 2304a was renumbered section 2304e of this title.

-MISC1-
                                AMENDMENTS                            
      2004 - Subsec. (f). Pub. L. 108-375 substituted "any period up to
    five years and may extend the contract period for one or more
    successive periods pursuant to an option provided in the contract
    or a modification of the contract. The total contract period as
    extended may not exceed 10 years unless such head of an agency
    determines in writing that exceptional circumstances necessitate a
    longer contract period" for "a total period of not more than five
    years".
      2003 - Subsecs. (f) to (h). Pub. L. 108-136 added subsec. (f) and
    redesignated former subsecs. (f) and (g) as (g) and (h),
    respectively.

                              EFFECTIVE DATE                          
      For effective date and applicability of section, see section
    10001 of Pub. L. 103-355, set out as an Effective Date of 1994
    Amendment note under section 251 of Title 41, Public Contracts.

                PROVISIONS NOT AFFECTED BY PUB. L. 103-355            
      Section 1004(d) of Pub. L. 103-355, as amended by Pub. L. 108-
    136, div. A, title X, Sec. 1045(f), Nov. 24, 2003, 117 Stat. 1613,
    provided that: "Nothing in section 2304a, 2304b, 2304c, or 2304d of
    title 10, United States Code, as added by subsection (a), and
    nothing in the amendments made by subsections (b) and (c) [amending
    sections 2304 and 2331 of this title], shall be construed as
    modifying or superseding, or as intended to impair or restrict,
    authorities or responsibilities under chapter 11 of title 40,
    United States Code."

-End-

-CITE-
    10 USC Sec. 2304b                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2304b. Task order contracts: advisory and assistance services

-STATUTE-
      (a) Authority To Award. - (1) Subject to the requirements of this
    section, section 2304c of this title, and other applicable law, the
    head of an agency may enter into a task order contract (as defined
    in section 2304d of this title) for procurement of advisory and
    assistance services.
      (2) The head of an agency may enter into a task order contract
    for procurement of advisory and assistance services only under the
    authority of this section.
      (b) Limitation on Contract Period. - The period of a task order
    contract entered into under this section, including all periods of
    extensions of the contract under options, modifications, or
    otherwise, may not exceed five years unless a longer period is
    specifically authorized in a law that is applicable to such
    contract.
      (c) Content of Notice. - The notice required by section 18 of the
    Office of Federal Procurement Policy Act (41 U.S.C. 416) and
    section 8(e) of the Small Business Act (15 U.S.C. 637(e)) shall
    reasonably and fairly describe the general scope, magnitude, and
    duration of the proposed task order contract in a manner that would
    reasonably enable a potential offeror to decide whether to request
    the solicitation and consider submitting an offer.
      (d) Required Content of Solicitation and Contract. - (1) The
    solicitation for the proposed task order contract shall include the
    information (regarding services) described in section 2304a(b) of
    this title.
      (2) A task order contract entered into under this section shall
    contain the same information that is required by paragraph (1) to
    be included in the solicitation of offers for that contract.
      (e) Multiple Awards. - (1) The head of an agency may, on the
    basis of one solicitation, award separate task order contracts
    under this section for the same or similar services to two or more
    sources if the solicitation states that the head of the agency has
    the option to do so.
      (2) If, in the case of a task order contract for advisory and
    assistance services to be entered into under this section, the
    contract period is to exceed three years and the contract amount is
    estimated to exceed $10,000,000 (including all options), the
    solicitation shall - 
        (A) provide for a multiple award authorized under paragraph
      (1); and
        (B) include a statement that the head of the agency may also
      elect to award only one task order contract if the head of the
      agency determines in writing that only one of the offerers is
      capable of providing the services required at the level of
      quality required.

      (3) Paragraph (2) does not apply in the case of a solicitation
    for which the head of the agency concerned determines in writing
    that, because the services required under the task order contract
    are unique or highly specialized, it is not practicable to award
    more than one contract.
      (f) Contract Modifications. - (1) A task order may not increase
    the scope, period, or maximum value of the task order contract
    under which the order is issued. The scope, period, or maximum
    value of the contract may be increased only by modification of the
    contract.
      (2) Unless use of procedures other than competitive procedures is
    authorized by an exception in subsection (c) of section 2304 of
    this title and approved in accordance with subsection (f) of such
    section, competitive procedures shall be used for making such a
    modification.
      (3) Notice regarding the modification shall be provided in
    accordance with section 18 of the Office of Federal Procurement
    Policy Act (41 U.S.C. 416) and section 8(e) of the Small Business
    Act (15 U.S.C. 637(e)).
      (g) Contract Extensions. - (1) Notwithstanding the limitation on
    the contract period set forth in subsection (b) or in a
    solicitation or contract pursuant to subsection (e), a task order
    contract entered into by the head of an agency under this section
    may be extended on a sole-source basis for a period not exceeding
    six months if the head of such agency determines that - 
        (A) the award of a follow-on contract has been delayed by
      circumstances that were not reasonably foreseeable at the time
      the initial contract was entered into; and
        (B) the extension is necessary in order to ensure continuity of
      the receipt of services pending the award of, and commencement of
      performance under, the follow-on contract.

      (2) A task order contract may be extended under the authority of
    paragraph (1) only once and only in accordance with the limitations
    and requirements of this subsection.
      (h) Inapplicability to Certain Contracts. - This section does not
    apply to a contract for the acquisition of property or services
    that includes acquisition of advisory and assistance services if
    the head of an agency entering into such contract determines that,
    under the contract, advisory and assistance services are
    necessarily incident to, and not a significant component of, the
    contract.
      (i) Advisory and Assistance Services Defined. - In this section,
    the term "advisory and assistance services" has the meaning given
    such term in section 1105(g) of title 31.

-SOURCE-
    (Added Pub. L. 103-355, title I, Sec. 1004(a)(1), Oct. 13, 1994,
    108 Stat. 3251.)

-MISC1-
                              EFFECTIVE DATE                          
      For effective date and applicability of section, see section
    10001 of Pub. L. 103-355, set out as an Effective Date of 1994
    Amendment note under section 251 of Title 41, Public Contracts.

                PROVISIONS NOT AFFECTED BY PUB. L. 103-355            
      This section not to be construed as modifying or superseding, or
    as intended to impair or restrict, authorities or responsibilities
    under former 40 U.S.C. 759 or chapter 11 of Title 40, Public
    Buildings, Property, and Works, see section 1004(d) of Pub. L. 103-
    355, set out as a note under section 2304a of this title.

    WAIVERS TO EXTEND TASK ORDER CONTRACTS FOR ADVISORY AND ASSISTANCE
                                 SERVICES
      For authority of head of an agency to issue a waiver to extend a
    task order contract entered into under this section for a period
    not exceeding 10 years, through five one-year options, see section
    834 of Pub. L. 109-364, set out as a note under section 253i of
    Title 41, Public Contracts.

-End-

-CITE-
    10 USC Sec. 2304c                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2304c. Task and delivery order contracts: orders

-STATUTE-
      (a) Issuance of Orders. - The following actions are not required
    for issuance of a task or delivery order under a task or delivery
    order contract:
        (1) A separate notice for such order under section 18 of the
      Office of Federal Procurement Policy Act (41 U.S.C. 416) or
      section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
        (2) Except as provided in subsection (b), a competition (or a
      waiver of competition approved in accordance with section 2304(f)
      of this title) that is separate from that used for entering into
      the contract.

      (b) Multiple Award Contracts. - When multiple task or delivery
    order contracts are awarded under section 2304a(d)(1)(B) or
    2304b(e) of this title, all contractors awarded such contracts
    shall be provided a fair opportunity to be considered, pursuant to
    procedures set forth in the contracts, for each task or delivery
    order in excess of $2,500 that is to be issued under any of the
    contracts unless - 
        (1) the agency's need for the services or property ordered is
      of such unusual urgency that providing such opportunity to all
      such contractors would result in unacceptable delays in
      fulfilling that need;
        (2) only one such contractor 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 in order to satisfy a minimum guarantee.

      (c) Statement of Work. - A task or delivery order shall include a
    statement of work that clearly specifies all tasks to be performed
    or property to be delivered under the order.
      (d) Protests. - A protest is not authorized in connection with
    the issuance or proposed issuance of a task or delivery order
    except for a protest on the ground that the order increases the
    scope, period, or maximum value of the contract under which the
    order is issued.
      (e) Task and Delivery Order Ombudsman. - Each head of an agency
    who awards multiple task or delivery order contracts pursuant to
    section 2304a(d)(1)(B) or 2304b(e) of this title shall appoint or
    designate a task and delivery order ombudsman who shall be
    responsible for reviewing complaints from the contractors on such
    contracts and ensuring that all of the contractors are afforded a
    fair opportunity to be considered for task or delivery orders when
    required under subsection (b). The task and delivery order
    ombudsman shall be a senior agency official who is independent of
    the contracting officer for the contracts and may be the agency's
    competition advocate.
      (f) Applicability. - This section applies to task and delivery
    order contracts entered into under sections 2304a and 2304b of this
    title.

-SOURCE-
    (Added Pub. L. 103-355, title I, Sec. 1004(a)(1), Oct. 13, 1994,
    108 Stat. 3252.)

-MISC1-
                              EFFECTIVE DATE                          
      For effective date and applicability of section, see section
    10001 of Pub. L. 103-355, set out as an Effective Date of 1994
    Amendment note under section 251 of Title 41, Public Contracts.

                PROVISIONS NOT AFFECTED BY PUB. L. 103-355            
      This section not to be construed as modifying or superseding, or
    as intended to impair or restrict, authorities or responsibilities
    under former 40 U.S.C. 759 or chapter 11 of Title 40, Public
    Buildings, Property, and Works, see section 1004(d) of Pub. L. 103-
    355, set out as a note under section 2304a of this title.

-End-

-CITE-
    10 USC Sec. 2304d                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2304d. Task and delivery order contracts: definitions

-STATUTE-
      In sections 2304a, 2304b, and 2304c of this title:
        (1) The term "task order contract" means a contract for
      services that does not procure or specify a firm quantity of
      services (other than a minimum or maximum quantity) and that
      provides for the issuance of orders for the performance of tasks
      during the period of the contract.
        (2) The term "delivery order contract" means a contract for
      property that does not procure or specify a firm quantity of
      property (other than a minimum or maximum quantity) and that
      provides for the issuance of orders for the delivery of property
      during the period of the contract.

-SOURCE-
    (Added Pub. L. 103-355, title I, Sec. 1004(a)(1), Oct. 13, 1994,
    108 Stat. 3253.)

-MISC1-
                              EFFECTIVE DATE                          
      For effective date and applicability of section, see section
    10001 of Pub. L. 103-355, set out as an Effective Date of 1994
    Amendment note under section 251 of Title 41, Public Contracts.

                PROVISIONS NOT AFFECTED BY PUB. L. 103-355            
      This section not to be construed as modifying or superseding, or
    as intended to impair or restrict, authorities or responsibilities
    under former 40 U.S.C. 759 or chapter 11 of Title 40, Public
    Buildings, Property, and Works, see section 1004(d) of Pub. L. 103-
    355, set out as a note under section 2304a of this title.

-End-

-CITE-
    10 USC Sec. 2304e                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2304e. Contracts: prohibition on competition between
      Department of Defense and small businesses and certain other
      entities

-STATUTE-
      (a) Exclusion. - In any case in which the Secretary of Defense
    plans to use competitive procedures for a procurement, if the
    procurement is to be conducted as described in subsection (b), then
    the Secretary shall exclude the Department of Defense from
    competing in the procurement.
      (b) Procurement Description. - The requirement to exclude the
    Department of Defense under subsection (a) applies in the case of a
    procurement to be conducted by excluding from competition entities
    in the private sector other than - 
        (1) small business concerns in furtherance of section 8 or 15
      of the Small Business Act (15 U.S.C. 637 or 644); or
        (2) entities described in subsection (a)(1) of section 2323 of
      this title in furtherance of the goal specified in that
      subsection.

-SOURCE-
    (Added Pub. L. 103-160, div. A, title VIII, Sec. 848(a)(1), Nov.
    30, 1993, 107 Stat. 1724, Sec. 2304a; renumbered Sec. 2304e, Pub.
    L. 104-106, div. D, title XLIII, Sec. 4321(b)(6)(A), Feb. 10, 1996,
    110 Stat. 672.)

-MISC1-
                                AMENDMENTS                            
      1996 - Pub. L. 104-106 renumbered section 2304a of this title as
    this section.

                              EFFECTIVE DATE                          
      Section 848(b) of Pub. L. 103-160 provided that: "Section 2304a
    [now 2304e] of title 10, United States Code, as added by subsection
    (a), shall take effect on the date of the enactment of this Act
    [Nov. 30, 1993]."

-End-

-CITE-
    10 USC Sec. 2305                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2305. Contracts: planning, solicitation, evaluation, and award
      procedures

-STATUTE-
      (a)(1)(A) In preparing for the procurement of property or
    services, the head of an agency shall - 
        (i) specify the agency's needs and solicit bids or proposals in
      a manner designed to achieve full and open competition for the
      procurement;
        (ii) use advance procurement planning and market research; and
        (iii) develop specifications in such manner as is necessary to
      obtain full and open competition with due regard to the nature of
      the property or services to be acquired.

      (B) Each solicitation under this chapter shall include
    specifications which - 
        (i) consistent with the provisions of this chapter, permit full
      and open competition; and
        (ii) include restrictive provisions or conditions only to the
      extent necessary to satisfy the needs of the agency or as
      authorized by law.

      (C) For the purposes of subparagraphs (A) and (B), the type of
    specification included in a solicitation shall depend on the nature
    of the needs of the agency and the market available to satisfy such
    needs. Subject to such needs, specifications may be stated in terms
    of - 
        (i) function, so that a variety of products or services may
      qualify;
        (ii) performance, including specifications of the range of
      acceptable characteristics or of the minimum acceptable
      standards; or
        (iii) design requirements.

      (2) In addition to the specifications described in paragraph (1),
    a solicitation for sealed bids or competitive proposals (other than
    for a procurement for commercial items using special simplified
    procedures or a purchase for an amount not greater than the
    simplified acquisition threshold) shall at a minimum include - 
        (A) a statement of - 
          (i) all significant factors and significant subfactors which
        the head of the 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
          (ii) the relative importance assigned to each of those
        factors and subfactors; and

        (B)(i) 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

        (ii) in the case of competitive proposals - 
          (I) either a statement that the proposals are intended to be
        evaluated with, and award made after, discussions with the
        offerors, or a statement that the proposals are intended to be
        evaluated, and 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.

      (3)(A) In prescribing the evaluation factors to be included in
    each solicitation for competitive proposals, the head of an agency -
     
        (i) shall clearly establish 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);
        (ii) shall include cost or price to the Federal Government as
      an evaluation factor that must be considered in the evaluation of
      proposals; and
        (iii) shall 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.

      (B) The regulations implementing clause (iii) of subparagraph (A)
    may not define the terms "significantly more important" and
    "significantly less important" as specific numeric weights that
    would be applied uniformly to all solicitations or a class of
    solicitations.
      (4) Nothing in this subsection prohibits an agency from - 
        (A) providing additional information in a solicitation,
      including numeric weights for all evaluation factors and
      subfactors on a case-by-case basis; or
        (B) 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.

      (5) The head of an agency, in issuing a solicitation for a
    contract to be awarded using sealed bid procedures, may not include
    in such solicitation a clause providing for the evaluation of
    prices for options to purchase additional property or services
    under the contract unless the head of the agency has determined
    that there is a reasonable likelihood that the options will be
    exercised.
      (b)(1) The head of an agency shall evaluate sealed bids and
    competitive proposals and make an award based solely on the factors
    specified in the solicitation.
      (2) All sealed bids or competitive proposals received in response
    to a solicitation may be rejected if the head of the agency
    determines that such action is in the public interest.
      (3) Sealed bids shall be opened publicly at the time and place
    stated in the solicitation. The head of the agency shall evaluate
    the bids in accordance with paragraph (1) without discussions with
    the bidders and, except as provided in paragraph (2), shall award a
    contract with reasonable promptness to the responsible bidder whose
    bid conforms to the solicitation and is most advantageous to the
    United States, considering only price and the other price-related
    factors included in the solicitation. The award of a contract shall
    be made by transmitting, in writing or by electronic means, notice
    of the award to the successful bidder. Within three days after the
    date of contract award, the head of the agency shall notify, in
    writing or by electronic means, each bidder not awarded the
    contract that the contract has been awarded.
      (4)(A) The head of an agency shall evaluate competitive proposals
    in accordance with paragraph (1) and may award a contract - 
        (i) 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
        (ii) based on the proposals received, without discussions with
      the offerors (other than discussions conducted for the purpose of
      minor clarification) provided that 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) If the contracting officer determines that the number of
    offerors that would otherwise be included in the competitive range
    under subparagraph (A)(i) exceeds the number at which an efficient
    competition can be conducted, the contracting officer may limit the
    number of proposals in the competitive range, in accordance with
    the criteria specified in the solicitation, to the greatest number
    that will permit an efficient competition among the offerors rated
    most highly in accordance with such criteria.
      (C) Except as provided in paragraph (2), the head of the agency
    shall award a contract with reasonable promptness to the
    responsible source whose proposal is most advantageous to the
    United States, considering only cost or price and the other factors
    included in the solicitation. The head of the agency shall award
    the contract by transmitting, in writing or by electronic means,
    notice of the award to such source and, within three days after the
    date of contract award, shall notify, in writing or by electronic
    means, all other offerors of the rejection of their proposals. This
    subparagraph does not apply with respect to the award of a contract
    for the acquisition of perishable subsistence items.
      (5)(A) When a contract is awarded by the head of an agency on the
    basis of competitive proposals, an unsuccessful offeror, upon
    written request received by the agency within 3 days after the date
    on which the unsuccessful offeror receives the notification of the
    contract award, shall be debriefed and furnished the basis for the
    selection decision and contract award. The head of the agency shall
    debrief the offeror within, to the maximum extent practicable, five
    days after receipt of the request by the agency.
      (B) The debriefing shall include, at a minimum - 
        (i) the agency's evaluation of the significant weak or
      deficient factors in the offeror's offer;
        (ii) 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;
        (iii) the overall ranking of all offers;
        (iv) a summary of the rationale for the award;
        (v) in the case of a proposal that includes a commercial item
      that is an end item under the contract, the make and model of the
      item being provided in accordance with the offer of the
      contractor awarded the contract; and
        (vi) 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 agency.

      (C) The debriefing may not include point-by-point comparisons of
    the debriefed offeror's offer with other offers and may not
    disclose any information that is exempt from disclosure under
    section 552(b) of title 5.
      (D) Each solicitation for competitive proposals shall include a
    statement that information described in subparagraph (B) may be
    disclosed in post-award debriefings.
      (E) If, within one year after the date of the contract award and
    as a result of a successful procurement protest, the agency seeks
    to fulfill the requirement under the protested contract either on
    the basis of a new solicitation of offers or on the basis of new
    best and final offers requested for that contract, the agency shall
    make available to all offerors - 
        (i) the information provided in debriefings under this
      paragraph regarding the offer of the contractor awarded the
      contract; and
        (ii) the same information that would have been provided to the
      original offerors.

      (6)(A) When the contracting officer excludes an offeror
    submitting a competitive proposal from the competitive range (or
    otherwise excludes such an offeror from further consideration prior
    to the final source selection decision), the excluded offeror may
    request in writing, within three days after the date on which the
    excluded offeror receives notice of its exclusion, a debriefing
    prior to award. The contracting officer shall make every effort to
    debrief the unsuccessful offeror as soon as practicable but may
    refuse the request for a debriefing if it is not in the best
    interests of the Government to conduct a debriefing at that time.
      (B) The contracting officer is required to debrief an excluded
    offeror in accordance with paragraph (5) only if that offeror
    requested and was refused a preaward debriefing under subparagraph
    (A).
      (C) The debriefing conducted under subparagraph (A) shall include
    - 
        (i) the executive agency's evaluation of the significant
      elements in the offeror's offer;
        (ii) a summary of the rationale for the offeror's exclusion;
      and
        (iii) 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) The debriefing conducted under subparagraph (A) may not
    disclose the number or identity of other offerors and shall not
    disclose information about the content, ranking, or evaluation of
    other offerors' proposals.
      (7) The contracting officer shall include a summary of any
    debriefing conducted under paragraph (5) or (6) in the contract
    file.
      (8) 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.
      (9) If the head of an agency considers that a bid or proposal
    evidences a violation of the antitrust laws, he shall refer the bid
    or proposal to the Attorney General for appropriate action.
      (c) The Secretary of Defense shall ensure that before a contract
    for the delivery of supplies to the Department of Defense is
    entered into - 
        (1) when the appropriate officials of the Department are making
      an assessment of the most advantageous source for acquisition of
      the supplies (considering quality, price, delivery, and other
      factors), there is a review of the availability and cost of each
      item of supply - 
          (A) through the supply system of the Department of Defense;
        and
          (B) under standard Government supply contracts, if the item
        is in a category of supplies defined under regulations of the
        Secretary of Defense as being potentially available under a
        standard Government supply contract; and

        (2) there is a review of both the procurement history of the
      item and a description of the item, including, when necessary for
      an adequate description of the item, a picture, drawing, diagram,
      or other graphic representation of the item.

      (d)(1)(A) The Secretary of Defense shall ensure that, in
    preparing a solicitation for the award of a development contract
    for a major system, the head of an agency consider requiring in the
    solicitation that an offeror include in its offer proposals
    described in subparagraph (B). In determining whether to require
    such proposals, the head of the agency shall give due consideration
    to the purposes for which the system is being procured and the
    technology necessary to meet the system's required capabilities. If
    such proposals are required, the head of the agency shall consider
    them in evaluating the offeror's price.
      (B) Proposals referred to in the first sentence of subparagraph
    (A) are the following:
        (i) Proposals to incorporate in the design of the major system
      items which 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.
        (ii) 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
      which the United States will be able to acquire competitively in
      the future.

      (2)(A) The Secretary of Defense shall ensure that, in preparing a
    solicitation for the award of a production contract for a major
    system, the head of an agency consider requiring in the
    solicitation that an offeror include in its offer proposals
    described in subparagraph (B). In determining whether to require
    such proposals, the head of the agency shall give due consideration
    to the purposes for which the system is being procured and the
    technology necessary to meet the system's required capabilities. If
    such proposals are required, the head of the agency shall consider
    them in evaluating the offeror's price.
      (B) Proposals referred to in the first sentence of subparagraph
    (A) are proposals identifying opportunities to ensure that the
    United States will be able to obtain on a competitive basis items
    procured in connection with the system that are likely to be
    reprocured in substantial quantities during the service life of the
    system. Proposals submitted in response to such requirement may
    include the following:
        (i) Proposals to provide to the United States the right to use
      technical data to be provided under the contract for competitive
      reprocurement of the item, together with the cost to the United
      States, if any, of acquiring such technical data and the right to
      use such data.
        (ii) Proposals for the qualification or development of multiple
      sources of supply for the item.

      (3) If the head of an agency is making a noncompetitive award of
    a development contract or a production contract for a major system,
    the factors specified in paragraphs (1) and (2) to be considered in
    evaluating an offer for a contract may be considered as objectives
    in negotiating the contract to be awarded. Such objectives may not
    impair the rights of prospective contractors or subcontractors
    otherwise provided by law.
      (4)(A) Whenever the head of an agency requires that proposals
    described in paragraph (1)(B) or (2)(B) be submitted by an offeror
    in its offer, the offeror shall not be required to provide a
    proposal that enables the United States to acquire competitively in
    the future an identical item if the item was developed exclusively
    at private expense unless the head of the agency determines that - 
        (i) the original supplier of such item will be unable to
      satisfy program schedule or delivery requirements; or
        (ii) proposals by the original supplier of such item to meet
      the mobilization requirements are insufficient to meet the
      agency's mobilization needs.

      (B) In considering offers in response to a solicitation requiring
    proposals described in paragraph (1)(B) or (2)(B), the head of an
    agency shall base any evaluation of items developed exclusively at
    private expense on an analysis of the total value, in terms of
    innovative design, life-cycle costs, and other pertinent factors,
    of incorporating such items in the system.
      (e) Protest File. - (1) If, in the case of a solicitation for a
    contract issued by, or an award or proposed award of a contract by,
    the head of an agency, a protest is filed pursuant to the
    procedures in subchapter V of chapter 35 of title 31 and an actual
    or prospective offeror so requests, a file of the protest shall be
    established by the procuring activity and reasonable access shall
    be provided to actual or prospective offerors.
      (2) Information exempt from disclosure under section 552 of title
    5 may be redacted in a file established pursuant to paragraph (1)
    unless an applicable protective order provides otherwise.
      (f) Agency Actions on Protests. - If, in connection with a
    protest, the head of an agency determines that a solicitation,
    proposed award, or award does not comply with the requirements of
    law or regulation, the head of the agency - 
        (1) may take any action set out in subparagraphs (A) through
      (F) of subsection (b)(1) of section 3554 of title 31; and
        (2) may pay costs described in paragraph (1) of section 3554(c)
      of title 31 within the limits referred to in paragraph (2) of
      such section.

      (g) Prohibition on Release of Contractor Proposals. - (1) Except
    as provided in paragraph (2), a proposal in the possession or
    control of an agency named in section 2303 of this title may not be
    made available to any person under section 552 of title 5.
      (2) Paragraph (1) does not apply to any proposal that is set
    forth or incorporated by reference in a contract entered into
    between the Department and the contractor that submitted the
    proposal.
      (3) In this subsection, the term "proposal" means any proposal,
    including a technical, management, or cost proposal, submitted by a
    contractor in response to the requirements of a solicitation for a
    competitive proposal.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 85-861, Sec.
    1(44), Sept. 2, 1958, 72 Stat. 1457; Pub. L. 90-268, Sec. 3, Mar.
    16, 1968, 82 Stat. 49; Pub. L. 98-369, div. B, title VII, Sec.
    2723(b), July 18, 1984, 98 Stat. 1191; Pub. L. 98-525, title XII,
    Sec. 1213(a), Oct. 19, 1984, 98 Stat. 2591; Pub. L. 99-145, title
    XIII, Sec. 1303(a)(14), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99-500,
    Sec. 101(c) [title X, Sec. 924(a), (b)], Oct. 18, 1986, 100 Stat.
    1783-82, 1783-153, and Pub. L. 99-591, Sec. 101(c) [title X, Sec.
    924(a), (b)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-153; Pub. L.
    99-661, div. A, title III, Sec. 313(b), title IX, formerly title
    IV, Sec. 924(a), (b), Nov. 14, 1986, 100 Stat. 3853, 3932, 3933,
    renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101
    Stat. 273; Pub. L. 100-456, div. A, title VIII, Sec. 806, Sept. 29,
    1988, 102 Stat. 2010; Pub. L. 101-189, div. A, title VIII, Sec.
    853(f), Nov. 29, 1989, 103 Stat. 1519; Pub. L. 101-510, div. A,
    title VIII, Sec. 802(a)-(d), Nov. 5, 1990, 104 Stat. 1588, 1589;
    Pub. L. 103-160, div. A, title XI, Sec. 1182(a)(5), Nov. 30, 1993,
    107 Stat. 1771; Pub. L. 103-355, title I, Secs. 1011-1016, title
    IV, Sec. 4401(b), Oct. 13, 1994, 108 Stat. 3254-3257, 3347; Pub. L.
    104-106, div. D, title XLI, Secs. 4103(a), 4104(a), title XLII,
    Sec. 4202(a)(2), div. E, title LVI, Sec. 5601(a), Feb. 10, 1996,
    110 Stat. 643, 644, 653, 699; Pub. L. 104-201, div. A, title VIII,
    Sec. 821(a), title X, Sec. 1074(a)(11), (b)(4)(A), Sept. 23, 1996,
    110 Stat. 2609, 2659, 2660; Pub. L. 106-65, div. A, title VIII,
    Sec. 821, Oct. 5, 1999, 113 Stat. 714.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
                                 1956 ACT                             
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2305(a)      41:152 (less clause (b)).     Feb. 19, 1948, ch. 65,   
                                                Secs. 2(d), 3, 62 Stat. 
                                                22.                     
    2305(b)                                                             
                 41:152 (clause (b)).                                   
    2305(c)      41:151(d).                                             
    --------------------------------------------------------------------

      In subsection (a), the word "needed" is substituted for the words
    "necessary to meet the requirements".
      In subsection (b), the words "United States" are substituted for
    the word "Government".

                                 1958 ACT                             
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2305         41:152(c).                    Aug. 9, 1955, ch. 628,   
                                                Sec. 15, 69 Stat. 551.  
    --------------------------------------------------------------------

      Reference to bids is omitted as surplusage (see opinion of the
    Judge Advocate General of the Army (JAGT 1956/9122, 21 Dec. 1956)).
    The word "attachments" is substituted for the words "material
    required". The words "the specifications in" are inserted in the
    second sentence for clarity. The word "available" is omitted as
    covered by the word "accessible." The words "no award may be made"
    are substituted for the words "and any award or awards made to any
    bidder in such case shall be invalidated and rejected".

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.

-MISC2-
                                AMENDMENTS                            
      1999 - Subsec. (g)(1). Pub. L. 106-65 substituted "an agency
    named in section 2303 of this title" for "the Department of
    Defense".
      1996 - Subsec. (a)(2). Pub. L. 104-106, Sec. 4202(a)(2), inserted
    "a procurement for commercial items using special simplified
    procedures or" after "(other than for".
      Subsec. (b)(4)(B). Pub. L. 104-106, Sec. 4103(a)(3), added
    subpar. (B). Former subpar. (B) redesignated (C).
      Pub. L. 104-106, Sec. 4103(a)(1), transferred text of subpar. (C)
    to end of subpar. (B) and substituted "This subparagraph" for
    "Subparagraph (B)" at beginning of that text.
      Subsec. (b)(4)(C). Pub. L. 104-106, Sec. 4103(a)(2), redesignated
    subpar. (B) as (C).
      Pub. L. 104-106, Sec. 4103(a)(1), struck out "(C)" before
    "Subparagraph (B)" and transferred text of subpar. (C) to end of
    subpar. (B).
      Subsec. (b)(5)(F). Pub. L. 104-106, Sec. 4104(a)(1), struck out
    subpar. (F) which read as follows: "The contracting officer shall
    include a summary of the debriefing in the contract file."
      Subsec. (b)(6). Pub. L. 104-106, Sec. 4104(a)(3), added par. (6).
    Former par. (6) redesignated (9).
      Subsec. (b)(6)(B). Pub. L. 104-201, Sec. 1074(a)(11)(A), struck
    out "of this section" after "paragraph (5)" and "of this paragraph"
    after "subparagraph (A)".
      Subsec. (b)(6)(C). Pub. L. 104-201, Sec. 1074(a)(11)(B),
    substituted "subparagraph (A)" for "this subsection" in
    introductory provisions.
      Subsec. (b)(6)(D). Pub. L. 104-201, Sec. 1074(a)(11)(C),
    substituted "under subparagraph (A)" for "pursuant to this
    subsection".
      Subsec. (b)(7), (8). Pub. L. 104-106, Sec. 4104(a)(3), added
    pars. (7) and (8).
      Subsec. (b)(9). Pub. L. 104-106, Sec. 4104(a)(2), redesignated
    par. (6) as (9).
      Subsec. (e)(3). Pub. L. 104-106, Sec. 5601(a), as amended by Pub.
    L. 104-201, Sec. 1074(b)(4)(A), struck out par. (3) which read as
    follows: "Regulations implementing this subsection shall be
    consistent with the regulations regarding the preparation and
    submission of an agency's protest file (the so-called 'rule 4
    file') for protests to the General Services Board of Contract
    Appeals under section 111 of the Federal Property and
    Administrative Services Act of 1949 (41 U.S.C. 759)."
      Subsec. (g). Pub. L. 104-201, Sec. 821(a), added subsec. (g).
      1994 - Subsec. (a)(2). Pub. L. 103-355, Sec. 4401(b), substituted
    "a purchase for an amount not greater than the simplified
    acquisition threshold)" for "small purchases)" in introductory
    provisions.
      Subsec. (a)(2)(A)(i). Pub. L. 103-355, Sec. 1011(a)(1),
    substituted "and significant subfactors" for "(and significant
    subfactors)" and "cost-related or price-related factors and
    subfactors, and noncost-related or nonprice-related factors and
    subfactors" for "cost- or price-related factors, and noncost- or
    nonprice-related factors".
      Subsec. (a)(2)(A)(ii). Pub. L. 103-355, Sec. 1011(a)(2),
    substituted "and subfactors" for "(and subfactors)".
      Subsec. (a)(2)(B)(ii)(I). Pub. L. 103-355, Sec. 1011(a)(3),
    amended subcl. (I) generally. Prior to amendment, subcl. (I) read
    as follows: "a statement that the proposals are intended to be
    evaluated with, and award made after, discussions with the
    offerors, or a statement that the proposals are intended to be
    evaluated, and 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".
      Subsec. (a)(3). Pub. L. 103-355, Sec. 1011(b), added par. (3) and
    struck out former par. (3), which read as follows: "In prescribing
    the evaluation factors to be included in each solicitation for
    competitive proposals, the head of an agency shall clearly
    establish 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, and prior experience of the offeror)."
      Subsec. (a)(4). Pub. L. 103-355, Sec. 1011(b), added par. (4).
      Subsec. (a)(5). Pub. L. 103-355, Sec. 1012, added par. (5).
      Subsec. (b)(3). Pub. L. 103-355, Sec. 1013(a), substituted
    "transmitting, in writing or by electronic means, notice" for
    "transmitting written notice" and inserted at end "Within three
    days after the date of contract award, the head of the agency shall
    notify, in writing or by electronic means, each bidder not awarded
    the contract that the contract has been awarded."
      Subsec. (b)(4)(B). Pub. L. 103-355, Sec. 1013(b), substituted
    "transmitting, in writing or by electronic means, notice" for
    "transmitting written notice" and ", within three days after the
    date of contract award, shall notify, in writing or by electronic
    means," for "shall promptly notify".
      Subsec. (b)(5), (6). Pub. L. 103-355, Sec. 1014, added par. (5)
    and redesignated former par. (5) as (6).
      Subsec. (e). Pub. L. 103-355, Sec. 1015, added subsec. (e).
      Subsec. (f). Pub. L. 103-355, Sec. 1016, added subsec. (f).
      1993 - Subsec. (b)(4)(A). Pub. L. 103-160 realigned margins of
    cls. (i) and (ii).
      1990 - Subsec. (a)(2)(A)(i). Pub. L. 101-510, Sec. 802(a)(1),
    inserted "(and significant subfactors)" after "significant factors"
    and substituted "(including cost or price, cost- or price-related
    factors, and noncost- or nonprice-related factors)" for "(including
    cost or price)".
      Subsec. (a)(2)(A)(ii). Pub. L. 101-510, Sec. 802(a)(2), inserted
    "(and subfactors)" after "those factors".
      Subsec. (a)(2(B)(ii)(I). Pub. L. 101-510, Sec. 802(b), amended
    subcl. (I) generally. Prior to amendment, subcl. (I) read as
    follows: "a statement that the proposals are intended to be
    evaluated with, and awards made after, discussions with the
    offerors, but might be evaluated and awarded without discussions
    with the offerors; and".
      Subsec. (a)(3). Pub. L. 101-510, Sec. 802(c), substituted "the
    evaluation factors and subfactors, including the quality of the
    product or services" for "the quality of the services".
      Subsec. (b)(1). Pub. L. 101-510, Sec. 802(d)(1), inserted "and
    make an award" after "competitive proposals".
      Subsec. (b)(3). Pub. L. 101-510, Sec. 802(d)(2), inserted "in
    accordance with paragraph (1)" after "shall evaluate the bids".
      Subsec. (b)(4)(A). Pub. L. 101-510, Sec. 802(d)(3)(A),
    substituted "competitive proposals in accordance with paragraph
    (1)" for "competitive proposals" in introductory provisions, added
    cls. (i) and (ii), and struck out former cls. (i) and (ii) which
    read as follows:
      "(i) after discussions conducted with the offerors at any time
    after receipt of the proposals and before the award of the
    contract; or
      "(ii) without discussions with the offerors (other than
    discussions conducted for the purpose of minor clarification) when
    it can be clearly demonstrated from the existence of full and open
    competition or accurate prior cost experience with the product or
    service that acceptance of an initial proposal without discussions
    would result in the lowest overall cost to the United States."
      Subsec. (b)(4)(B) to (E). Pub. L. 101-510, Sec. 802(d)(3)(B)-(D),
    redesignated subpars. (D) and (E) as (B) and (C), respectively,
    substituted "Subparagraph (B)" for "Subparagraph (D)" in subpar.
    (C), and struck out former subpars. (B) and (C) which read as
    follows:
      "(B) In the case of award of a contract under subparagraph
    (A)(i), the head of the agency shall conduct, before such award,
    written or oral discussions with all responsible sources who submit
    proposals within the competitive range, considering only cost or
    price and the other factors included in the solicitation.
      "(C) In the case of award of a contract under subparagraph
    (A)(ii), the head of the agency shall award the contract based on
    the proposals received (and as clarified, if necessary, in
    discussions conducted for the purpose of minor clarification)."
      1989 - Subsec. (b)(4)(D). Pub. L. 101-189 inserted "cost or"
    after "considering only".
      1988 - Subsec. (d)(1)(B). Pub. L. 100-456, Sec. 806(b),
    substituted "Proposals referred to in the first sentence of
    subparagraph (A) are" for "The proposals that the head of an agency
    is to consider requiring in a solicitation for the award of a
    development contract are".
      Subsec. (d)(2)(B). Pub. L. 100-456, Sec. 806(b), substituted
    "Proposals referred to in the first sentence of subparagraph (A)
    are" for "The proposals that the head of an agency is to consider
    requiring in a solicitation for the award of a production contract
    are".
      Subsec. (d)(3). Pub. L. 100-456, Sec. 806(a)(2), inserted
    provision that objectives may not impair the rights of prospective
    contractors or subcontractors otherwise provided by law.
      Subsec. (d)(4). Pub. L. 100-456, Sec. 806(a)(1), added par. (4).
      1986 - Subsec. (a). Pub. L. 99-500 and Pub. L. 99-591, Sec.
    101(c) [Sec. 924(a)], Pub. L. 99-661, Sec. 924(a), amended subsec.
    (a) identically, in par. (2)(A)(i) striking out "(including price)"
    after "factors" and inserting "(including price)" and "(including
    cost and price)" and adding par. (3).
      Subsec. (b)(4)(B). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c)
    [Sec. 924(b)], Pub. L. 99-661, Sec. 924(b), amended subpar. (B)
    identically, inserting "cost or".
      Subsec. (b)(4)(E). Pub. L. 99-661, Sec. 313(b), added subpar.
    (E).
      1985 - Subsec. (b)(5). Pub. L. 99-145 aligned the margin of par.
    (5).
      1984 - Subsecs. (c), (d). Pub. L. 98-525 added subsecs. (c) and
    (d).
      Catchline, subsecs. (a) to (d). Pub. L. 98-369 substituted
    "Contracts: planning, solicitation, evaluation, and award
    procedures" for "Formal advertisements for bids; time; opening;
    award; rejection" and completely revised the text to substitute a
    program using solicitation requirements covering military
    procurement for former provisions which had used the approach of
    utilizing formal advertisements, struck out former provisions which
    had directed that, except in cases where the Secretary of Defense
    had determined that military requirements necessitated the
    specification of container size, no advertisement or invitation to
    bid for the carriage of government property in other than
    government-owned cargo containers could specify carriage of such
    property in cargo containers of any stated length, height, or
    width, and carried forward into new subsecs. (a)(1)(A)(iii),
    (B)(i), and (b)(2) and (5) the content of former section.
      1968 - Subsec. (a). Pub. L. 90-268 inserted provision that,
    except in cases where the Secretary of Defense determines that
    military requirements necessitate such specification, no
    advertisement or invitation to bid for the carriage of Government
    property in other than Government-owned cargo containers shall
    specify carriage of such property in cargo containers of any stated
    length, height, or width.
      1958 - Subsecs. (b) to (d). Pub. L. 85-861 added subsec. (b) and
    redesignated former subsecs. (b) and (c) as (c) and (d),
    respectively.

                     EFFECTIVE DATE OF 1996 AMENDMENT                 
      For effective date and applicability of amendment by sections
    4103(a), 4104(a), and 4202(a)(2) of Pub. L. 104-106, see section
    4401 of Pub. L. 104-106, set out as a note under section 251 of
    Title 41, Public Contracts.
      Amendment by section 5601(a) of Pub. L. 104-106 effective 180
    days after Feb. 10, 1996, see section 5701 of Pub. L. 104-106, Feb.
    10, 1996, 110 Stat. 702.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Section 802(e) of Pub. L. 101-510 provided that:
      "(1) Except as provided in paragraph (2), the amendments made by
    this section [amending this section] shall apply with respect to
    solicitations for sealed bids or competitive proposals issued after
    the end of the 120-day period beginning on the date of the
    enactment of this Act [Nov. 5, 1990].
      "(2) The Secretary of Defense may require the amendments made by
    this section to apply with respect to solicitations issued before
    the end of the period referred to in paragraph (1). The Secretary
    of Defense shall publish in the Federal Register notice of any such
    earlier effective date."

                     EFFECTIVE DATE OF 1986 AMENDMENT                 
      Section 101(c) [title X, Sec. 924(c)] of Pub. L. 99-500 and Pub.
    L. 99-591, and section 924(c) of title IX, formerly title IV, of
    Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made
    by this section [amending this section] shall apply with respect to
    solicitations for sealed bids or competitive proposals issued after
    the end of the 180-day period beginning on the date of the
    enactment of this Act [Oct. 18, 1986]."

                     EFFECTIVE DATE OF 1984 AMENDMENTS                 
      Section 1213(b) of Pub. L. 98-525 provided that: "The amendment
    made by subsection (a) [amending this section] shall take effect at
    the end of the 180-day period beginning on the date of the
    enactment of this Act [Oct. 19, 1984]."
      Amendment by Pub. L. 98-369 applicable with respect to any
    solicitation for bids or proposals issued after Mar. 31, 1985, see
    section 2751 of Pub. L. 98-369, set out as a note under section 251
    of Title 41, Public Contracts.

     GUIDANCE ON USE OF TIERED EVALUATIONS OF OFFERS FOR CONTRACTS AND
                        TASK ORDERS UNDER CONTRACTS
      Pub. L. 109-163, div. A, title VIII, Sec. 816, Jan. 6, 2006, 119
    Stat. 3382, provided that:
      "(a) Guidance Required. - The Secretary of Defense shall
    prescribe guidance for the military departments and the Defense
    Agencies on the use of tiered evaluations of offers for contracts
    and for task or delivery orders under contracts.
      "(b) Elements. - The guidance prescribed under subsection (a)
    shall include a prohibition on the initiation by a contracting
    officer of a tiered evaluation of an offer for a contract or for a
    task or delivery order under a contract unless the contracting
    officer - 
        "(1) has conducted market research in accordance with part 10
      of the Federal Acquisition Regulation in order to determine
      whether or not a sufficient number of qualified small businesses
      are available to justify limiting competition for the award of
      such contract or task or delivery order under applicable law and
      regulations;
        "(2) is unable, after conducting market research under
      paragraph (1), to make the determination described in that
      paragraph; and
        "(3) includes in the contract file a written explanation of why
      such contracting officer was unable to make such determination."

        AUTHORIZATION OF EVALUATION FACTOR FOR DEFENSE CONTRACTORS
    EMPLOYING OR SUBCONTRACTING WITH MEMBERS OF THE SELECTED RESERVE OF
                THE RESERVE COMPONENTS OF THE ARMED FORCES
      Pub. L. 109-163, div. A, title VIII, Sec. 819, Jan. 6, 2006, 119
    Stat. 3385, provided that:
      "(a) Defense Contracts. - In awarding any contract for the
    procurement of goods or services to an entity, the Secretary of
    Defense is authorized to use as an evaluation factor whether the
    entity intends to carry out the contract using employees or
    individual subcontractors who are members of the Selected Reserve
    of the reserve components of the Armed Forces.
      "(b) Documentation of Selected Reserve-Related Evaluation Factor.
    - Any entity claiming intent to carry out a contract using
    employees or individual subcontractors who are members of the
    Selected Reserve of the reserve components of the Armed Forces
    shall submit proof of the use of such employees or subcontractors
    for the Department of Defense to consider in carrying out
    subsection (a) with respect to that contract.
      "(c) Regulations. - The Federal Acquisition Regulation shall be
    revised as necessary to implement this section."

                  CERTIFICATE OF COMPETENCY REQUIREMENTS              
      Pub. L. 102-484, div. A, title VIII, Sec. 804, Oct. 23, 1992, 106
    Stat. 2447, provided that, in case of contract to be entered into
    pursuant to this chapter, other than pursuant to simplified
    procedures under section 2304(g) of this title, solicitation was to
    contain notice of right of bidding small business concern, in case
    of determination by contracting officer that concern was
    nonresponsible, to request Small Business Administration to make
    determination of responsibility under section 637(b)(7) of Title
    15, Commerce and Trade, that if contracting officer determined that
    concern was nonresponsible, such officer was to notify concern in
    writing, of such determination, that concern had right to request
    Small Business Administration to make determination, and that, if
    concern desired to request such determination, concern was to
    inform officer in writing, within 14 days after receipt of notice,
    of such desire, and that, after being so informed, officer was to
    transmit request to Administration, or, if not so informed, officer
    was to proceed with award of contract, and contained provisions
    relating to effective and termination dates and report to be
    submitted to Congress, prior to repeal by Pub. L. 103-355, title
    VII, Sec. 7101(b), Oct. 13, 1994, 108 Stat. 3367.

                      CONSTRUCTION OF 1984 AMENDMENT                  
      Amendment by Pub. L. 98-369 as not superseding or affecting the
    provisions of section 637(a) of Title 15, Commerce and Trade, see
    section 2723(c) of Pub. L. 98-369, set out as a note under section
    2304 of this title.

-End-

-CITE-
    10 USC Sec. 2305a                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2305a. Design-build selection procedures

-STATUTE-
      (a) Authorization. - Unless the traditional acquisition approach
    of design-bid-build established under chapter 11 of title 40 is
    used or another acquisition procedure authorized by law is used,
    the head of an agency shall use the two-phase selection procedures
    authorized in this section for entering into a contract for the
    design and construction of a public building, facility, or work
    when a determination is made under subsection (b) that the
    procedures are appropriate for use.
      (b) Criteria for Use. - A contracting officer shall make a
    determination whether two-phase selection procedures are
    appropriate for use for entering into a contract for the design and
    construction of a public building, facility, or work when the
    contracting officer anticipates that three or more offers will be
    received for such contract, design work must be performed before an
    offeror can develop a price or cost proposal for such contract, the
    offeror will incur a substantial amount of expense in preparing the
    offer, and the contracting officer has considered information such
    as the following:
        (1) The extent to which the project requirements have been
      adequately defined.
        (2) The time constraints for delivery of the project.
        (3) The capability and experience of potential contractors.
        (4) The suitability of the project for use of the two-phase
      selection procedures.
        (5) The capability of the agency to manage the two-phase
      selection process.
        (6) Other criteria established by the agency.

      (c) Procedures Described. - Two-phase selection procedures
    consist of the following:
        (1) The agency develops, either in-house or by contract, a
      scope of work statement for inclusion in the solicitation that
      defines the project and provides prospective offerors with
      sufficient information regarding the Government's requirements
      (which may include criteria and preliminary design, budget
      parameters, and schedule or delivery requirements) to enable the
      offerors to submit proposals which meet the Government's needs.
      If the agency contracts for development of the scope of work
      statement, the agency shall contract for architectural and
      engineering services as defined by and in accordance with chapter
      11 of title 40.
        (2) The contracting officer solicits phase-one proposals that -
      
          (A) include information on the offeror's - 
            (i) technical approach; and
            (ii) technical qualifications; and

          (B) do not include - 
            (i) detailed design information; or
            (ii) cost or price information.

        (3) The evaluation factors to be used in evaluating phase-one
      proposals are stated in the solicitation and include specialized
      experience and technical competence, capability to perform, past
      performance of the offeror's team (including the architect-
      engineer and construction members of the team) and other
      appropriate factors, except that cost-related or price-related
      evaluation factors are not permitted. Each solicitation
      establishes the relative importance assigned to the evaluation
      factors and subfactors that must be considered in the evaluation
      of phase-one proposals. The agency evaluates phase-one proposals
      on the basis of the phase-one evaluation factors set forth in the
      solicitation.
        (4) The contracting officer selects as the most highly
      qualified the number of offerors specified in the solicitation to
      provide the property or services under the contract and requests
      the selected offerors to submit phase-two competitive proposals
      that include technical proposals and cost or price information.
      Each solicitation establishes with respect to phase two - 
          (A) the technical submission for the proposal, including
        design concepts or proposed solutions to requirements addressed
        within the scope of work (or both), and
          (B) the evaluation factors and subfactors, including cost or
        price, that must be considered in the evaluations of proposals
        in accordance with paragraphs (2), (3), and (4) of section
        2305(a) of this title.

      The contracting officer separately evaluates the submissions
      described in subparagraphs (A) and (B).
        (5) The agency awards the contract in accordance with section
      2305(b)(4) of this title.

      (d) Solicitation to State Number of Offerors To Be Selected for
    Phase Two Requests for Competitive Proposals. - A solicitation
    issued pursuant to the procedures described in subsection (c) shall
    state the maximum number of offerors that are to be selected to
    submit competitive proposals pursuant to subsection (c)(4). The
    maximum number specified in the solicitation shall not exceed 5
    unless the agency determines with respect to an individual
    solicitation that a specified number greater than 5 is in the
    Government's interest and is consistent with the purposes and
    objectives of the two-phase selection process.
      (e) Requirement for Guidance and Regulations. - The Federal
    Acquisition Regulation shall include guidance - 
        (1) regarding the factors that may be considered in determining
      whether the two-phase contracting procedures authorized by
      subsection (a) are appropriate for use in individual contracting
      situations;
        (2) regarding the factors that may be used in selecting
      contractors; and
        (3) providing for a uniform approach to be used Government-
      wide.

      (f) Special Authority for Military Construction Projects. - (1)
    The Secretary of a military department may use funds available to
    the Secretary under section 2807(a) or 18233(e) of this title to
    accelerate the design effort in connection with a military
    construction project for which the two-phase selection procedures
    described in subsection (c) are used to select the contractor for
    both the design and construction portion of the project before the
    project is specifically authorized by law and before funds are
    appropriated for the construction portion of the project.
    Notwithstanding the limitations contained in such sections, use of
    such funds for the design portion of a military construction
    project may continue despite the subsequent authorization of the
    project. The advance notice requirement of section 2807(b) of this
    title shall continue to apply whenever the estimated cost of the
    design portion of the project exceeds the amount specified in such
    section.
      (2) Any military construction contract that provides for an
    accelerated design effort, as authorized by paragraph (1), shall
    include as a condition of the contract that the liability of the
    United States in a termination for convenience before funds are
    first made available for construction may not exceed an amount
    attributable to the final design of the project.
      (3) For each fiscal year during which the authority provided by
    this subsection is in effect, the Secretary of a military
    department may select not more than two military construction
    projects to include the accelerated design effort authorized by
    paragraph (1) for each armed force under the jurisdiction of the
    Secretary. To be eligible for selection under this subsection, a
    request for the authorization of the project, and for the
    authorization of appropriations for the project, must have been
    included in the annual budget of the President for a fiscal year
    submitted to Congress under section 1105(a) of title 31.
      (4) Not later than March 1, 2008, the Secretary of Defense shall
    submit to the congressional defense committees a report evaluating
    the usefulness of the authority provided by this subsection in
    expediting the design and construction of military construction
    projects. The authority provided by this subsection expires
    September 30, 2008, except that, if the report required by this
    paragraph is not submitted by March 1, 2008, the authority shall
    expire on that date.

-SOURCE-
    (Added Pub. L. 104-106, div. D, title XLI, Sec. 4105(a)(1), Feb.
    10, 1996, 110 Stat. 645; amended Pub. L. 105-85, div. A, title X,
    Sec. 1073(a)(44), Nov. 18, 1997, 111 Stat. 1902; Pub. L. 107-217,
    Sec. 3(b)(4), Aug. 21, 2002, 116 Stat. 1295; Pub. L. 108-178, Sec.
    4(b)(3), Dec. 15, 2003, 117 Stat. 2641; Pub. L. 108-375, div. B,
    title XXVIII, Sec. 2807, Oct. 28, 2004, 118 Stat. 2123; Pub. L. 109-
    163, div. B, title XXVIII, Sec. 2807, Jan. 6, 2006, 119 Stat.
    3508.)

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2305a was renumbered section 2438 of this title.

                                AMENDMENTS                            
      2006 - Subsec. (f)(2). Pub. L. 109-163, Sec. 2807(a), amended
    par. (2) generally. Prior to amendment, par. (2) read as follows:
    "Any military construction contract that provides for an
    accelerated design effort, as authorized by paragraph (1), shall
    include as a condition of the contract that the liability of the
    United States in a termination for convenience may not exceed the
    actual costs incurred as of the termination date."
      Subsec. (f)(4). Pub. L. 109-163, Sec. 2807(b), substituted "2008"
    for "2007" wherever appearing.
      2004 - Subsec. (f). Pub. L. 108-375 added subsec. (f).
      2003 - Subsec. (c)(1). Pub. L. 108-178 substituted "chapter 11 of
    title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et
    seq.)".
      2002 - Subsec. (a). Pub. L. 107-217 substituted "chapter 11 of
    title 40" for "the Brooks Architect-Engineers Act (40 U.S.C. 541 et
    seq.)".
      1997 - Subsec. (a). Pub. L. 105-85 substituted "(40 U.S.C." for
    "(41 U.S.C.".

                     EFFECTIVE DATE OF 2003 AMENDMENT                 
      Amendment by Pub. L. 108-178 effective Aug. 21, 2002, see section
    5 of Pub. L. 108-178, set out as a note under section 5334 of Title
    5, Government Organization and Employees.

                              EFFECTIVE DATE                          
      For effective date and applicability of section, see section 4401
    of Pub. L. 104-106, set out as an Effective Date of 1996 Amendment
    note under section 251 of Title 41, Public Contracts.

-End-

-CITE-
    10 USC Sec. 2306                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2306. Kinds of contracts

-STATUTE-
      (a) The cost-plus-a-percentage-of-cost system of contracting may
    not be used. Subject to the limitation in the preceding sentence,
    the other provisions of this section, and other applicable
    provisions of law, the head of an agency, in awarding contracts
    under this chapter after using procedures other than sealed-bid
    procedures, may enter into any kind of contract that he considers
    will promote the best interests of the United States.
      (b) Each contract awarded under this chapter after using
    procedures other than sealed-bid procedures shall contain a
    warranty, determined to be suitable by the head of the agency, that
    the contractor has employed or retained no person or selling agency
    to solicit or obtain the contract under an understanding or
    agreement for a commission, percentage, brokerage, or contingent
    fee, except a bona fide employee or established commercial or
    selling agency maintained by him to obtain business. If a
    contractor breaks such a warranty the United States may annul the
    contract without liability or may deduct the commission,
    percentage, brokerage, or contingent fee from the contract price or
    consideration. This subsection does not apply to a contract that is
    for an amount not greater than the simplified acquisition threshold
    or to a contract for the acquisition of commercial items.
      [(c) Repealed. Pub. L. 103-355, title I, Sec. 1021, Oct. 13,
    1994, 108 Stat. 3257.]
      (d) The fee for performing a cost-plus-a-fixed-fee contract for
    experimental, developmental, or research work may not be more than
    15 percent of the estimated cost of the contract, not including the
    fee. The fee for performing a cost-plus-a-fixed-fee contract for
    architectural or engineering services for a public work or utility
    plus the cost of those services to the contractor may not be more
    than 6 percent of the estimated cost of that work or project, not
    including fees. The fee for performing any other cost-plus-a-fixed-
    fee contract may not be more than 10 percent of the estimated cost
    of the contract, not including the fee. Determinations under this
    subsection of the estimated costs of a contract or project shall be
    made by the head of the agency at the time the contract is made.
      (e)(1) Except as provided in paragraph (2), each cost contract
    and each cost-plus-a-fixed-fee contract shall provide for notice to
    the agency by the contractor before the making, under the prime
    contract, of - 
        (A) a cost-plus-a-fixed-fee subcontract; or
        (B) a fixed-price subcontract or purchase order involving more
      than the greater of (i) the simplified acquisition threshold, or
      (ii) 5 percent of the estimated cost of the prime contract.

      (2) Paragraph (1) shall not apply to a prime contract with a
    contractor that maintains a purchasing system approved by the
    contracting officer for the contract.
      (f) So-called "truth-in-negotiations" provisions relating to cost
    or pricing data to be submitted by certain contractors and
    subcontractors are provided in section 2306a of this title.
      (g) Multiyear contracting authority for the acquisition of
    services is provided in section 2306c of this title.
      (h) Multiyear contracting authority for the purchase of property
    is provided in section 2306b of this title.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 130; Pub. L. 87-653, Sec. 1(d),
    (e), Sept. 10, 1962, 76 Stat. 528; Pub. L. 90-378, Sec. 1, July 5,
    1968, 82 Stat. 289; Pub. L. 90-512, Sept. 25, 1968, 82 Stat. 863;
    Pub. L. 96-513, title V, Sec. 511(77), Dec. 12, 1980, 94 Stat.
    2926; Pub. L. 97-86, title IX, Secs. 907(b), 909(b), Dec. 1, 1981,
    95 Stat. 1117, 1118; Pub. L. 98-369, div. B, title VII, Sec. 2724,
    July 18, 1984, 98 Stat. 1192; Pub. L. 99-145, title XIII, Sec.
    1303(a)(15), Nov. 8, 1985, 99 Stat. 739; Pub. L. 99-500, Sec.
    101(c) [title X, Sec. 952(b)(1), (c)(1)], Oct. 18, 1986, 100 Stat.
    1783-82, 1783-169, and Pub. L. 99-591, Sec. 101(c) [title X, Sec.
    952(b)(1), (c)(1)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-169;
    Pub. L. 99-661, div. A, title IX, formerly title IV, Sec.
    952(b)(1), (c)(1), Nov. 14, 1986, 100 Stat. 3949, renumbered title
    IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; Pub.
    L. 101-189, div. A, title VIII, Sec. 805(a), Nov. 29, 1989, 103
    Stat. 1488; Pub. L. 101-510, div. A, title VIII, Sec. 808, Nov. 5,
    1990, 104 Stat. 1593; Pub. L. 102-25, title VII, Sec. 701(d)(3),
    Apr. 6, 1991, 105 Stat. 114; Pub. L. 103-355, title I, Secs. 1021,
    1022(b), title IV, Secs. 4102(b), 4401(c), title VIII, Sec.
    8105(a), Oct. 13, 1994, 108 Stat. 3257, 3260, 3340, 3348, 3392;
    Pub. L. 105-85, div. A, title X, Sec. 1073(a)(45), Nov. 18, 1997,
    111 Stat. 1902; Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec.
    802(b)], Oct. 30, 2000, 114 Stat. 1654, 1654A-205; Pub. L. 108-136,
    div. A, title VIII, Sec. 842, Nov. 24, 2003, 117 Stat. 1552.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2306(a)      41:153(a) (1st sentence).     Feb. 19, 1948, ch. 65,   
                                                Sec. 4 (less words after
                                                semicolon of last       
                                                sentence of (b), and    
                                                less (c)), 62 Stat. 23. 
                                                                        
                                                                        
    2306(b)                                                             
                 41:153(b) (1st 14 words                                
                  of 1st sentence).                                     
                 41:153(a) (less 1st                                    
                  sentence).                                            
    2306(c)      41:153(b) (2d sentence).                               
    2306(d)      41:153(b) (1st sentence,                               
                  less 1st 14 words).                                   
    2306(e)      41:153(b) (less 1st and                                
                  2d sentences; and less                                
                  words after semicolon of                              
                  last sentence).                                       
    --------------------------------------------------------------------

      In subsection (a), the words "subject to subsections (b)-(e)" are
    substituted for the words "Except as provided in subsection (b) of
    this section". The words "United States" are substituted for the
    word "Government".
      In subsection (b), the words "under section 2304 of this title"
    are substituted for the words "pursuant to section 151(c) of this
    title". The words "full amount of such" and "violation" are omitted
    as surplusage.
      In subsection (c), the words "under section 2304 of this title"
    are inserted for clarity.

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.

-MISC2-
                             PRIOR PROVISIONS                         
      Provisions similar to those in subsec. (h)(11) of this section
    were contained in Pub. L. 100-526, title I, Sec. 104(a), Oct. 24,
    1988, 102 Stat. 2624, which was set out below, prior to repeal by
    Pub. L. 101-189, Sec. 805(b).

                                AMENDMENTS                            
      2003 - Subsec. (e). Pub. L. 108-136 substituted "(1) Except as
    provided in paragraph (2), each" for "Each", redesignated former
    pars. (1) and (2) as subpars. (A) and (B) of par. (1),
    respectively, redesignated cls. (A) and (B) of former par. (2) as
    cls. (i) and (ii) of subpar. (B) of par. (1), respectively, and
    added par. (2).
      2000 - Subsec. (g). Pub. L. 106-398 amended subsec. (g)
    generally. Prior to amendment, subsec. (g) consisted of pars. (1)
    to (3) authorizing the head of an agency to enter into contracts
    for periods of not more than five years for certain types of
    services.
      1997 - Subsec. (h). Pub. L. 105-85 inserted "for the purchase of
    property" after "Multiyear contracting authority".
      1994 - Subsec. (b). Pub. L. 103-355, Secs. 4102(b), 8105(a),
    inserted at end "This subsection does not apply to a contract that
    is for an amount not greater than the simplified acquisition
    threshold or to a contract for the acquisition of commercial
    items."
      Subsec. (c). Pub. L. 103-355, Sec. 1021, struck out subsec. (c)
    which read as follows: "No cost contract, cost-plus-a-fixed-fee
    contract, or incentive contract may be made under this chapter
    unless the head of the agency determines that such a contract is
    likely to be less costly to the United States than any other kind
    of contract or that it is impracticable to obtain property or
    services of the kind or quality required except under such a
    contract."
      Subsec. (e)(2)(A). Pub. L. 103-355, Sec. 4401(c), substituted
    "simplified acquisition threshold" for "small purchase threshold".
      Subsec. (h). Pub. L. 103-355, Sec. 1022(b), amended subsec. (h)
    generally. Prior to amendment, subsec. (h) related to requirements
    for multiyear contracts for purchase of property, including weapon
    systems and items and services associated with weapons systems.
      1991 - Subsec. (e)(2)(A). Pub. L. 102-25 substituted "the small
    purchase threshold" for "the small purchase amount under section
    2304(g) of this title".
      1990 - Subsec. (h)(1). Pub. L. 101-510, Sec. 808(a), struck out
    "(other than contracts described in paragraph (6))" after
    "multiyear contracts" in introductory provisions and substituted
    "substantial savings of the total anticipated costs of carrying out
    the program through annual contracts" for "reduced total costs
    under the contract" in subpar. (A).
      Subsec. (h)(6). Pub. L. 101-510, Sec. 808(b), struck out
    "contracts for the construction, alteration, or major repair of
    improvements to real property or" after "not apply to".
      Subsec. (h)(9). Pub. L. 101-510, Sec. 808(c)(1), inserted "for a
    defense acquisition program that has been specifically authorized
    by law to be carried out using multiyear contract authority" after
    "under this subsection" in introductory provisions.
      Subsec. (h)(9)(C). Pub. L. 101-510, Sec. 808(c)(2), struck out
    subpar. (C) which read as follows: "The proposed multiyear contract
    - 
        "(i) achieves a 10 percent savings as compared to the cost of
      current negotiated contracts, adjusted for changes in quantity
      and for inflation; or
        "(ii) achieves a 10 percent savings as compared to annual
      contracts if no recent contract experience exists."
      1989 - Subsec. (h)(9) to (11). Pub. L. 101-189 added pars. (9) to
    (11).
      1986 - Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec.
    952(c)(1)], Pub. L. 99-661, Sec. 952(c)(1), amended section
    identically, striking out ": cost or pricing data: truth in
    negotiation" after "contracts" in section catchline.
      Subsec. (f). Pub. L. 99-500 and Pub. L. 99-591, Sec. 101(c) [Sec.
    952(b)(1)], Pub. L. 99-661, Sec. 952(b)(1), amended generally
    subsec. (f) identically, substituting provision that "truth-in-
    negotiations" provisions relating to cost and pricing data for
    contractors and subcontractors are provided in section 2306a of
    this title for provision relating to certification by contractors
    and subcontractors on cost and pricing data, circumstances under
    which such certification will be required, circumstances under
    which such certification, although not required, may be requested,
    and evaluation of the accuracy of the data submitted.
      1985 - Subsec. (a). Pub. L. 99-145, Sec. 1303(a)(15)(A), inserted
    a period at end.
      Subsec. (b). Pub. L. 99-145, Sec. 1303(a)(15)(B), struck out "of
    this title" before "shall contain".
      1984 - Pub. L. 98-369, Sec. 2724(f), substituted "Kinds of
    contracts; cost or pricing data: truth in negotiation" for "Kinds
    of contracts" in section catchline.
      Subsec. (a). Pub. L. 98-369, Sec. 2724(a), substituted "the
    limitation in the preceding sentence, the other provisions of this
    section, and other applicable provisions of law, the head of an
    agency, in awarding contracts under this chapter after using
    procedures other than sealed-bid procedures, may enter into" for
    "this limitation and subject to subsections (b)-(f), the head of
    any agency may, in negotiating contracts under section 2304 of this
    title, make".
      Subsec. (b). Pub. L. 98-369, Sec. 2724(b), substituted "awarded
    under this chapter after using procedures other than sealed-bid
    procedures" for "negotiated under section 2304".
      Subsec. (c). Pub. L. 98-369, Sec. 2724(c), substituted "this
    chapter" for "section 2304 of this title,".
      Subsec. (e)(2). Pub. L. 98-369, Sec. 2724(d), substituted "the
    greater of (A) the small purchase amount under section 2304(g) of
    this title, or (B)" for "$25,000 or".
      Subsec. (f)(1). Pub. L. 98-369, Sec. 2724(e)(A)(i), (ii),
    substituted "such contractor's or subcontractor's" for "his" and
    struck out "he" before "submitted was accurate" in provisions
    preceding subpar. (A).
      Subsec. (f)(1)(A). Pub. L. 98-369, Sec. 2724(3)(A)(iii), (vi),
    (vii), substituted "prime contract under this chapter entered into
    after using procedures other than sealed-bid procedures, if" for
    "negotiated prime contract under this title where", "$100,000" for
    "$500,000", and "before" for "prior to".
      Subsec. (f)(1)(B). Pub. L. 98-369, Sec. 2724(e)(A)(iv), (vi),
    (vii), substituted "if" for "for which", "$100,000" for "$500,000",
    and "before" for "prior to".
      Subsec. (f)(1)(C). Pub. L. 98-369, Sec. 2724(e)(A)(v)-(vii),
    substituted "when" for "where", "$100,000" for "$500,000", and
    "before" for "prior to".
      Subsec. (f)(1)(D). Pub. L. 98-369, Sec. 2724(e)(A)(iv), (vi),
    (vii), substituted "if" for "for which", "$100,000" for "$500,000",
    and "before" for "prior to".
      Subsec. (f)(2). Pub. L. 98-369, Sec. 2724(e)(B), (D), (E), struck
    out "negotiated" before "price as is practicable" and before "is
    based on adequate price competition", redesignated as par. (3) the
    proviso formerly set out in this par., and as part of the
    redesignation substituted a period for ": Provided, That" after "or
    noncurrent".
      Subsec. (f)(3). Pub. L. 98-369, Sec. 2724(e)(E), designated as
    par. (3) the proviso formerly set out in par. (2). Former par. (3)
    redesignated (5).
      Subsec. (f)(4). Pub. L. 98-369, Sec. 2724(e)(F), added par. (4).
      Subsec. (f)(5). Pub. L. 98-369, Sec. 2724(e)(C), redesignated
    former par. (3) as (5) and substituted "proposal for the contract,
    the discussions conducted on the proposal" for "negotiation".
      1981 - Subsec. (f)(1). Pub. L. 97-86, Sec. 907(b), substituted
    "$500,000" for "$100,000" in subpars. (A) to (D).
      Subsec. (g)(1). Pub. L 97-86, Sec. 909(b)(1), struck out "to be
    performed outside the forty-eight contiguous States and the
    District of Columbia" after "(and items of supply related to such
    services)" in provisions preceding subpar. (A).
      Subsec. (h). Pub. L. 97-86, Sec. 909(b)(2), added subsec. (h).
      1980 - Subsec. (f). Pub. L. 96-513, Sec. 511(77)(A), designated
    existing provisions as pars. (1) to (3) and in par. (1), as so
    designated, substituted "(A)" to "(D)" for "(1)" to "(4)",
    respectively, "prior" for "Prior" wherever appearing, and "clause
    (C)" for "(3) above".
      Subsec. (g). Pub. L. 96-513, Sec. 511(77)(B), in par. (1)
    substituted "that - " for "that:", in par. (2) substituted "(A)
    The" for "(A) the", "(B) Consideration" for "(B) consideration",
    and "(C) Consideration" for "(C) consideration", and in par. (3)
    substituted "from - " for "from:".
      1968 - Subsec. (f). Pub. L. 90-512 inserted last par.
      Subsec. (g). Pub. L. 90-378 added subsec. (g).
      1962 - Subsec. (a). Pub. L. 87-653, Sec. 1(d), substituted
    "subsections (b)-(f)" for "subsections (b)-(e)".
      Subsec. (f). Pub. L. 87-653, Sec. 1(e), added subsec. (f).

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1986 AMENDMENT                 
      Amendment by section 101(c) [title X, Sec. 952(b)(1)] of Pub. L.
    99-500 and Pub. L. 99-591, and section 952(b)(1) of Pub. L. 99-661
    applicable with respect to contracts or modifications on contracts
    entered into after end of 120-day period beginning Oct. 18, 1986,
    see section 101(c) of Pub. L. 99-500 and Pub. L. 99-591, and
    section 952(d) of Pub. L. 99-661, set out as a note under section
    2306a of this title.

                     EFFECTIVE DATE OF 1984 AMENDMENT                 
      Amendment by Pub. L. 98-369 applicable with respect to any
    solicitation for bids or proposals issued after Mar. 31, 1985, see
    section 2751 of Pub. L. 98-369, set out as a note under section 251
    of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1980 AMENDMENT                 
      Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section
    701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of
    this title.

                     EFFECTIVE DATE OF 1962 AMENDMENT                 
      For effective date of amendment by Pub. L. 87-653 see section
    1(h) of Pub. L. 87-653, set out as a note under section 2304 of
    this title.

                           TRANSITION PROVISION                       
      Section 805(c) of Pub. L. 101-189 provided that: "Subparagraph
    (C) of paragraph (9) of section 2306(h) of title 10, United States
    Code, as added by subsection (a), does not apply to programs that
    are under a multiyear contract on the date of the enactment of this
    Act [Nov. 29, 1989]."

          DETERMINATION OF CONTRACT TYPE FOR DEVELOPMENT PROGRAMS      
      Pub. L. 109-364, div. A, title VIII, Sec. 818(b)-(e), Oct. 17,
    2006, 120 Stat. 2329, 2330, provided that:
      "(b) Modification of Regulations. - Not later than 120 days after
    the date of the enactment of this Act [Oct. 17, 2006], the
    Secretary of Defense shall modify the regulations of the Department
    of Defense regarding the determination of contract type for
    development programs.
      "(c) Elements. - As modified under subsection (b), the
    regulations shall require the Milestone Decision Authority for a
    major defense acquisition program to select the contract type for a
    development program at the time of a decision on Milestone B
    approval (or Key Decision Point B approval in the case of a space
    program) that is consistent with the level of program risk for the
    program. The Milestone Decision Authority may select - 
        "(1) a fixed-price type contract (including a fixed price
      incentive contract); or
        "(2) a cost type contract.
      "(d) Conditions With Respect to Authorization of Cost Type
    Contract. - As modified under subsection (b), the regulations shall
    provide that the Milestone Decision Authority may authorize the use
    of a cost type contract under subsection (c) for a development
    program only upon a written determination that - 
        "(1) the program is so complex and technically challenging that
      it would not be practicable to reduce program risk to a level
      that would permit the use of a fixed-price type contract; and
        "(2) the complexity and technical challenge of the program is
      not the result of a failure to meet the requirements established
      in section 2366a of title 10, United States Code.
      "(e) Justification for Selection of Contract Type. - As modified
    under subsection (b), the regulations shall require the Milestone
    Decision Authority to document the basis for the contract type
    selected for a program. The documentation shall include an
    explanation of the level of program risk for the program and, if
    the Milestone Decision Authority determines that the level of
    program risk is high, the steps that have been taken to reduce
    program risk and reasons for proceeding with Milestone B approval
    despite the high level of program risk."

           MULTIYEAR PROCUREMENT AUTHORITY; REQUESTS FOR RELIEF       
      Pub. L. 100-526, title I, Sec. 104(a), Oct. 24, 1988, 102 Stat.
    2624, which provided that if for any fiscal year a multiyear
    contract was to be entered into under 10 U.S.C. 2306(h) was
    authorized by law for a particular procurement program and that
    authorization was subject to certain conditions established by law
    (including a condition as to cost savings to be achieved under the
    multiyear contract in comparison to specified other contracts) and
    if it appeared (after negotiations with contractors) that such
    savings could not be achieved, but that substantial savings could
    nevertheless be achieved through the use of a multiyear contract
    rather than specified other contracts, the President was to submit
    to Congress a request for relief from the specified cost savings
    that was to be achieved through multiyear contracting for that
    program and that any such request by the President was to include
    details about the request for a multiyear contract, including
    details about the negotiated contract terms and conditions, was
    repealed and restated as subsec. (h)(11) of this section by Pub. L.
    101-189, Sec. 805(b), (c).

        TECHNICAL DATA AND COMPUTER SOFTWARE PACKAGES; PROCUREMENT;
    CONTRACTING PERIOD; DEFERRED ORDERING CLAUSE; EXEMPTIONS; REPORT TO
                   CONGRESSIONAL COMMITTEES; DEFINITIONS
      Pub. L. 94-361, title VIII, Sec. 805, July 14, 1976, 90 Stat.
    932, required that military contracts entered into during Oct. 1,
    1976 to Sept. 30, 1978 for development or procurement of a major
    system include a deferred ordering clause with an option to
    purchase from the contractor technical data and computer software
    packages relating to the system, directed that such clause require
    such packages to be sufficiently detailed so as to enable
    procurement of such system or subsystem from another contractor,
    authorized that a particular contract may be exempted from the
    deferred ordering clause if the procuring authority reports to the
    House and Senate Committees on Armed Services his intent to so
    contract with an explanation for the exemption, and set out
    definitions for "major system", "deferred ordering", and "technical
    data".

-End-

-CITE-
    10 USC Sec. 2306a                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2306a. Cost or pricing data: truth in negotiations

-STATUTE-
      (a) Required Cost or Pricing Data and Certification. - (1) The
    head of an agency shall require offerors, contractors, and
    subcontractors to make cost or pricing data available as follows:
        (A) An offeror for a prime contract under this chapter to be
      entered into using procedures other than sealed-bid procedures
      shall be required to submit cost or pricing data before the award
      of a contract if - 
          (i) in the case of a prime contract entered into after
        December 5, 1990, the price of the contract to the United
        States is expected to exceed $500,000; and
          (ii) in the case of a prime contract entered into on or
        before December 5, 1990, the price of the contract to the
        United States is expected to exceed $100,000.

        (B) The contractor for a prime contract under this chapter
      shall be required to submit cost or pricing data before the
      pricing of a change or modification to the contract if - 
          (i) in the case of a change or modification made to a prime
        contract referred to in subparagraph (A)(i), the price
        adjustment is expected to exceed $500,000;
          (ii) in the case of a change or modification made after
        December 5, 1991, to a prime contract that was entered into on
        or before December 5, 1990, and that has been modified pursuant
        to paragraph (6), the price adjustment is expected to exceed
        $500,000; and
          (iii) in the case of a change or modification not covered by
        clause (i) or (ii), the price adjustment is expected to exceed
        $100,000.

        (C) An offeror for a subcontract (at any tier) of a contract
      under this chapter shall be required to submit cost or pricing
      data before the award of the subcontract if the prime contractor
      and each higher-tier subcontractor have been required to make
      available cost or pricing data under this section and - 
          (i) in the case of a subcontract under a prime contract
        referred to in subparagraph (A)(i), the price of the
        subcontract is expected to exceed $500,000;
          (ii) in the case of a subcontract entered into after December
        5, 1991, under a prime contract that was entered into on or
        before December 5, 1990, and that has been modified pursuant to
        paragraph (6), the price of the subcontract is expected to
        exceed $500,000; and
          (iii) in the case of a subcontract not covered by clause (i)
        or (ii), the price of the subcontract is expected to exceed
        $100,000.

        (D) The subcontractor for a subcontract covered by subparagraph
      (C) shall be required to submit cost or pricing data before the
      pricing of a change or modification to the subcontract if - 
          (i) in the case of a change or modification to a subcontract
        referred to in subparagraph (C)(i) or (C)(ii), the price
        adjustment is expected to exceed $500,000; and
          (ii) in the case of a change or modification to a subcontract
        referred to in subparagraph (C)(iii), the price adjustment is
        expected to exceed $100,000.

      (2) A person required, as an offeror, contractor, or
    subcontractor, to submit cost or pricing data under paragraph (1)
    (or required by the head of the agency concerned to submit such
    data under subsection (c)) shall be required to certify that, to
    the best of the person's knowledge and belief, the cost or pricing
    data submitted are accurate, complete, and current.
      (3) Cost or pricing data required to be submitted under paragraph
    (1) (or under subsection (c)), and a certification required to be
    submitted under paragraph (2), shall be submitted - 
        (A) 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 to a designated representative of the contracting
      officer); or
        (B) in the case of a submission by a subcontractor (or an
      offeror for a subcontract), to the prime contractor.

      (4) Except as provided under subsection (b), this section applies
    to contracts entered into by the head of an agency on behalf of a
    foreign government.
      (5) A waiver of requirements for submission of certified cost or
    pricing data that is granted under subsection (b)(1)(C) in the case
    of a contract or subcontract does not waive the requirement under
    paragraph (1)(C) for submission of cost or pricing data in the case
    of subcontracts under that contract or subcontract unless the head
    of the procuring activity granting the waiver determines that the
    requirement under that paragraph should be waived in the case of
    such subcontracts and justifies in writing the reasons for the
    determination.
      (6) Upon the request of a contractor that was required to submit
    cost or pricing data under paragraph (1) in connection with a prime
    contract entered into on or before December 5, 1990, the head of
    the agency that entered into such contract shall modify the
    contract to reflect subparagraphs (B)(ii) and (C)(ii) of paragraph
    (1). All such modifications shall be made without requiring
    consideration.
      (7) Effective on October 1 of each year that is divisible by 5,
    each amount set forth in paragraph (1) shall be adjusted to the
    amount that is equal to the fiscal year 1994 constant dollar value
    of the amount set forth. Any amount, as so adjusted, that is not
    evenly divisible by $50,000 shall be rounded to the nearest
    multiple of $50,000. In the case of an amount that is evenly
    divisible by $25,000 but not evenly divisible by $50,000, the
    amount shall be rounded to the next higher multiple of $50,000.
      (b) Exceptions. - 
        (1) In general. - Submission of certified cost or pricing data
      shall not be required under subsection (a) in the case of a
      contract, a subcontract, or modification of a contract or
      subcontract - 
          (A) for which the price agreed upon is based on - 
            (i) adequate price competition; or
            (ii) prices set by law or regulation;

          (B) for the acquisition of a commercial item; or
          (C) in an exceptional case when the head of the procuring
        activity, without delegation, determines that the requirements
        of this section may be waived and justifies in writing the
        reasons for such determination.

        (2) Modifications of contracts and subcontracts for commercial
      items. - In the case of a modification of a contract or
      subcontract for a commercial item that is not covered by the
      exception to the submission of certified cost or pricing data in
      paragraph (1)(A) or (1)(B), submission of certified cost or
      pricing data shall not be required under subsection (a) if - 
          (A) 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)(A)
        or (1)(B); and
          (B) the modification would not change the contract or
        subcontract, as the case may be, from a contract or subcontract
        for the acquisition of a commercial item to a contract or
        subcontract for the acquisition of an item other than a
        commercial item.

        (3) Noncommercial modifications of commercial items. - (A) The
      exception in paragraph (1)(B) does not apply to cost or pricing
      data on noncommercial modifications of a commercial item that are
      expected to cost, in the aggregate, more than $500,000 or 5
      percent of the total price of the contract, whichever is greater.
        (B) In this paragraph, the term "noncommercial modification",
      with respect to a commercial item, means a modification of such
      item that is not a modification described in section 4(12)(C)(i)
      of the Office of Federal Procurement Policy Act (41 U.S.C.
      403(12)(C)(i)).
        (C) Nothing in subparagraph (A) shall be construed - 
          (i) to limit the applicability of the exception in
        subparagraph (A) or (C) of paragraph (1) to cost or pricing
        data on a noncommercial modification of a commercial item; or
          (ii) to require the submission of cost or pricing data on any
        aspect of an acquisition of a commercial item other than the
        cost and pricing of noncommercial modifications of such item.

      (c) Cost or Pricing Data on Below-Threshold Contracts. - 
        (1) Authority to require submission. - Subject to paragraph
      (2), when certified cost or pricing data are not required to be
      submitted by subsection (a) for a contract, subcontract, or
      modification of a contract or subcontract, such data may
      nevertheless be required to be submitted by the head of the
      procuring activity, but only if the head of the procuring
      activity determines that such data are necessary for the
      evaluation by the agency of the reasonableness of the price of
      the contract, subcontract, or modification of a contract or
      subcontract. In any case in which the head of the procuring
      activity requires such data to be submitted under this
      subsection, the head of the procuring activity shall justify in
      writing the reason for such requirement.
        (2) Exception. - The head of the procuring activity may not
      require certified cost or pricing data to be submitted under this
      paragraph for any contract or subcontract, or modification of a
      contract or subcontract, covered by the exceptions in
      subparagraph (A) or (B) of subsection (b)(1).
        (3) Delegation of authority prohibited. - The head of a
      procuring activity may not delegate functions under this
      paragraph.

      (d) Submission of Other Information. - 
        (1) Authority to require submission. - When certified cost or
      pricing data are not required to be submitted under this section
      for a contract, subcontract, or modification of a contract or
      subcontract, the contracting officer shall require submission of
      data other than certified cost or pricing data to the extent
      necessary to determine the reasonableness of the price of the
      contract, subcontract, or modification of the contract or
      subcontract. Except in the case of a contract or subcontract
      covered by the exceptions in subsection (b)(1)(A), the
      contracting officer shall require that the data submitted
      include, at a minimum, appropriate information on the prices at
      which the same item or similar items have previously been sold
      that is adequate for evaluating the reasonableness of the price
      for the procurement.
        (2) Limitations on authority. - The Federal Acquisition
      Regulation shall include the following provisions regarding the
      types of information that contracting officers may require under
      paragraph (1):
          (A) Reasonable limitations on requests for sales data
        relating to commercial items.
          (B) A requirement that a contracting officer limit, to the
        maximum extent practicable, the scope of any request for
        information relating to commercial items from an offeror to
        only that information that is in the form regularly maintained
        by the offeror in commercial operations.
          (C) A statement that any information received relating to
        commercial items that is exempt from disclosure under section
        552(b) of title 5 shall not be disclosed by the Federal
        Government.

      (e) Price Reductions for Defective Cost or Pricing Data. - (1)(A)
    A prime contract (or change or modification to a prime contract)
    under which a certificate under subsection (a)(2) is required shall
    contain a provision that the price of the contract to the United
    States, including profit or fee, shall be adjusted to exclude any
    significant amount by which it may be determined by the head of the
    agency that such price was increased because the contractor (or any
    subcontractor required to make available such a certificate)
    submitted defective cost or pricing data.
      (B) For the purposes of this section, defective cost or pricing
    data are cost or pricing data which, as of the date of agreement on
    the price of the contract (or another date agreed upon between the
    parties), were inaccurate, incomplete, or noncurrent. If for
    purposes of the preceding sentence the parties agree upon a date
    other than the date of agreement on the price of the contract, the
    date agreed upon by the parties shall be as close to the date of
    agreement on the price of the contract as is practicable.
      (2) In determining for purposes of a contract price adjustment
    under a contract provision required by paragraph (1) whether, and
    to what extent, a contract price was increased because the
    contractor (or a subcontractor) submitted defective cost or pricing
    data, it shall be a defense that the United States did not rely on
    the defective data submitted by the contractor or subcontractor.
      (3) It is not a defense to an adjustment of the price of a
    contract under a contract provision required by paragraph (1) that -
     
        (A) 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 - 
          (i) was the sole source of the property or services procured;
        or
          (ii) otherwise was in a superior bargaining position with
        respect to the property or services procured;

        (B) the contracting officer should have known that the cost and
      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;
        (C) the contract was based on an agreement between the
      contractor and the United States about the total cost of the
      contract and there was no agreement about the cost of each item
      procured under such contract; or
        (D) the prime contractor or subcontractor did not submit a
      certification of cost and pricing data relating to the contract
      as required under subsection (a)(2).

      (4)(A) A contractor shall be allowed to offset an amount against
    the amount of a contract price adjustment under a contract
    provision required by paragraph (1) if - 
        (i) 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
        (ii) 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 paragraph (1)(B), another date agreed upon
      between the parties, and that the data were not submitted as
      specified in subsection (a)(3) before such date.

      (B) A contractor shall not be allowed to offset an amount
    otherwise authorized to be offset under subparagraph (A) if - 
        (i) the certification under subsection (a)(2) with respect to
      the cost or pricing data involved was known to be false when
      signed; or
        (ii) the United States proves that, had the cost or pricing
      data referred to in subparagraph (A)(ii) been submitted to the
      United States before the date of agreement on the price of the
      contract (or price of the modification) or, if applicable
      consistent with paragraph (1)(B), another date agreed upon
      between the parties, the submission of such cost or pricing data
      would not have resulted in an increase in that price in the
      amount to be offset.

      (f) Interest and Penalties for Certain Overpayments. - (1) If the
    United States makes an overpayment to a contractor under a contract
    subject to this section and the overpayment was due to the
    submission by the contractor of defective cost or pricing data, the
    contractor shall be liable to the United States - 
        (A) for interest on the amount of such overpayment, to be
      computed - 
          (i) 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 such overpayment to the United States; and
          (ii) at the current rate prescribed by the Secretary of the
        Treasury under section 6621 of the Internal Revenue Code of
        1986; and

        (B) if the submission of such defective data was a knowing
      submission, for an additional amount equal to the amount of the
      overpayment.

      (2) Any liability under this subsection of a contractor that
    submits cost or pricing data but refuses to submit the
    certification required by subsection (a)(2) with respect to the
    cost or pricing data shall not be affected by the refusal to submit
    such certification.
      (g) Right of United States To Examine Contractor Records. - For
    the purpose of evaluating the accuracy, completeness, and currency
    of cost or pricing data required to be submitted by this section,
    the head of an agency shall have the authority provided by section
    2313(a)(2) of this title.
      (h) Definitions. - In this section:
        (1) Cost or pricing data. - The term "cost or pricing data"
      means all facts that, as of the date of agreement on the price of
      a contract (or the price of a contract modification), or, if
      applicable consistent with subsection (e)(1)(B), another date
      agreed upon between the parties, a prudent buyer or seller would
      reasonably expect to affect price negotiations significantly.
      Such term does not include information that is judgmental, but
      does include the factual information from which a judgment was
      derived.
        (2) Subcontract. - The term "subcontract" includes a transfer
      of commercial items between divisions, subsidiaries, or
      affiliates of a contractor or a subcontractor.
        (3) Commercial item. - The term "commercial item" has the
      meaning provided such term in section 4(12) of the Office of
      Federal Procurement Policy Act (41 U.S.C. 403(12)).

-SOURCE-
    (Added Pub. L. 99-500, Sec. 101(c) [title X, Sec. 952(a)], Oct. 18,
    1986, 100 Stat. 1783-82, 1783-166, and Pub. L. 99-591, Sec. 101(c)
    [title X, Sec. 952(a)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-166;
    Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 952(a),
    Nov. 14, 1986, 100 Stat. 3945, renumbered title IX, Pub. L. 100-26,
    Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 100-180,
    div. A, title VIII, Sec. 804(a), (b), Dec. 4, 1987, 101 Stat. 1125;
    Pub. L. 101-510, div. A, title VIII, Sec. 803(a)(1), (d), Nov. 5,
    1990, 104 Stat. 1589, 1590; Pub. L. 102-25, title VII, Sec. 701(b),
    (f)(8), Apr. 6, 1991, 105 Stat. 113, 115; Pub. L. 102-190, div. A,
    title VIII, Sec. 804(a)-(c)(1), title X, Sec. 1061(a)(9), Dec. 5,
    1991, 105 Stat. 1415, 1416, 1472; Pub. L. 103-355, title I, Secs.
    1201-1209, Oct. 13, 1994, 108 Stat. 3273-3277; Pub. L. 104-106,
    div. D, title XLII, Sec. 4201(a), title XLIII, Sec. 4321(a)(2),
    (b)(7), Feb. 10, 1996, 110 Stat. 649, 671, 672; Pub. L. 104-201,
    div. A, title X, Sec. 1074(a)(12), Sept. 23, 1996, 110 Stat. 2659;
    Pub. L. 105-85, div. A, title X, Sec. 1073(a)(46), Nov. 18, 1997,
    111 Stat. 1902; Pub. L. 105-261, div. A, title VIII, Secs. 805(a),
    808(a), Oct. 17, 1998, 112 Stat. 2083, 2085; Pub. L. 108-375, div.
    A, title VIII, Sec. 818(a), Oct. 28, 2004, 118 Stat. 2015.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 6621 of the Internal Revenue Code of 1986, referred to in
    subsec. (f)(1)(A)(ii), is classified to section 6621 of Title 26,
    Internal Revenue Code.

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
      Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99-661 added
    identical sections.

-MISC1-
                                AMENDMENTS                            
      2004 - Subsec. (b)(3). Pub. L. 108-375 added par. (3).
      1998 - Subsec. (a)(5). Pub. L. 105-261, Sec. 805(a), amended par.
    (5) generally. Prior to amendment, par. (5) read as follows: "For
    purposes of paragraph (1)(C), a contractor or subcontractor granted
    a waiver under subsection (b)(1)(C) shall be considered as having
    been required to make available cost or pricing data under this
    section."
      Subsec. (d)(1). Pub. L. 105-261, Sec. 808(a), substituted "the
    contracting officer shall require that the data submitted" for "the
    data submitted shall".
      1997 - Subsec. (a)(5). Pub. L. 105-85 substituted "subsection
    (b)(1)(C)" for "subsection (b)(1)(B)".
      1996 - Subsec. (b). Pub. L. 104-106, Sec. 4321(a)(2), made
    technical correction to directory language of Pub. L. 103-355, Sec.
    1202(a). See 1994 Amendment note below.
      Pub. L. 104-106, Sec. 4201(a)(1), amended subsec. (b) generally,
    revising and restating as pars. (1) and (2) the provisions of
    former pars. (1) and (2) and striking out par. (3).
      Subsec. (c). Pub. L. 104-106, Sec. 4201(a)(1), amended subsec.
    (c) generally, revising and restating as subsec. (c) the provisions
    of former subsec. (c)(1).
      Subsec. (d). Pub. L. 104-106, Sec. 4321(b)(7)(A), which directed
    amendment of subsec. (d)(2)(A)(ii), by inserting "to" after "The
    information referred", could not be executed because subsec.
    (d)(2)(A) did not contain a cl. (ii) or the language "The
    information referred" subsequent to amendment by Pub. L. 104-106,
    Sec. 4201(a)(1). See below.
      Pub. L. 104-106, Sec. 4201(a)(1), amended subsec. (d) generally,
    revising and restating as pars. (1) and (2) provisions of former
    subsecs. (c)(2) and (d)(2), (4) and striking out provisions of
    former subsec. (d)(1), (3) relating to procurements based on
    adequate price competition and authority to audit.
      Subsec. (e)(4)(B)(ii). Pub. L. 104-106, Sec. 4321(b)(7)(B),
    struck out second comma after "parties".
      Subsec. (h). Pub. L. 104-106, Sec. 4201(a)(2), redesignated
    subsec. (i) as (h) and struck out former subsec. (h) which read as
    follows: "Required Regulations. - The Federal Acquisition
    Regulation shall contain provisions concerning the types of
    information that offerors must submit for a contracting officer to
    consider in determining whether the price of a procurement to the
    Government is fair and reasonable when certified cost or pricing
    data are not required to be submitted under this section because
    the price of the procurement to the United States is not expected
    to exceed the applicable threshold amount set forth in subsection
    (a) (as adjusted pursuant to paragraph (7) of such subsection).
    Such information, at a minimum, shall include appropriate
    information on the prices at which the same item or similar items
    have previously been sold that is adequate for evaluating the
    reasonableness of the price of the proposed contract or subcontract
    for the procurement."
      Subsec. (h)(3). Pub. L. 104-201 inserted "(41 U.S.C. 403(12))"
    before period at end.
      Subsec. (i). Pub. L. 104-106, Sec. 4201(a)(2)(B), redesignated
    subsec. (i) as (h).
      Subsec. (i)(3). Pub. L. 104-106, Sec. 4321(b)(7)(C), which
    directed amendment of subsec. (i)(3) by inserting "(41 U.S.C.
    403(12))" before period at end, could not be executed because
    section did not contain a subsec. (i) subsequent to the amendment
    by Pub. L. 104-106, Sec. 4201(a)(2)(B), redesignating subsec. (i)
    as (h). See above.
      1994 - Subsec. (a)(1)(A)(i). Pub. L. 103-355, Sec. 1201(a)(1),
    struck out "and before January 1, 1996," after "December 5, 1990,".
      Subsec. (a)(1)(A)(ii). Pub. L. 103-355, Sec. 1201(a)(2), struck
    out "or after December 31, 1995," after "December 5, 1990,".
      Subsec. (a)(5). Pub. L. 103-355, Sec. 1202(b), substituted
    "subsection (b)(1)(B)" for "subsection (b)(2)".
      Subsec. (a)(6). Pub. L. 103-355, Sec. 1201(c), struck out subpar.
    (A) designation and subpar. (B) which read as follows: "The head of
    an agency is not required to modify a contract under subparagraph
    (A) if that head of an agency determines that the submission of
    cost or pricing data with respect to that contract should be
    required under subsection (c)."
      Subsec. (a)(7). Pub. L. 103-355, Sec. 1201(b), added par. (7).
      Subsec. (b). Pub. L. 103-355, Sec. 1202(a), as amended by Pub. L.
    104-106, Sec. 4321(a)(2), amended heading and text of subsec. (b)
    generally. Prior to amendment, text read as follows: "This section
    need not be applied to a contract or subcontract - 
        "(1) for which the price agreed upon is based on - 
          "(A) adequate price competition;
          "(B) established catalog or market prices of commercial items
        sold in substantial quantities to the general public; or
          "(C) prices set by law or regulation; or
        "(2) in an exceptional case when the head of the agency
      determines that the requirements of this section may be waived
      and states in writing his reasons for such determination."
      Subsec. (c). Pub. L. 103-355, Sec. 1203, amended heading and text
    of subsec. (c) generally. Prior to amendment, text read as follows:
    "When cost or pricing data are not required to be submitted by
    subsection (a), such data may nevertheless be required to be
    submitted by the head of the agency if the head of the agency
    determines that such data are necessary for the evaluation by the
    agency of the reasonableness of the price of the contract or
    subcontract. In any case in which the head of the agency requires
    such data to be submitted under this subsection, the head of the
    agency shall document in writing the reasons for such requirement."
      Subsec. (d). Pub. L. 103-355, Sec. 1204, added subsec. (d) and
    redesignated former subsec. (d) as (e).
      Subsec. (e). Pub. L. 103-355, Sec. 1204(1), redesignated subsec.
    (d) as (e). Former subsec. (e) redesignated (f).
      Subsec. (e)(4)(A)(ii), (B)(ii). Pub. L. 103-355, Sec. 1207,
    inserted "or, if applicable consistent with paragraph (1)(B),
    another date agreed upon between the parties," after "(or price of
    the modification)".
      Subsec. (f). Pub. L. 103-355, Sec. 1204(1), redesignated subsec.
    (e) as (f). Former subsec. (f) redesignated (g).
      Subsec. (f)(1). Pub. L. 103-355, Sec. 1209, struck out "with the
    Department of Defense" before "subject to this section" in
    introductory provisions.
      Subsec. (g). Pub. L. 103-355, Sec. 1205, added subsec. (g) and
    struck out heading and text of former subsec. (g). Text read as
    follows:
      "(1) For the purpose of evaluating the accuracy, completeness,
    and currency of cost or pricing data required to be submitted by
    this section with respect to a contract or subcontract, the head of
    the agency, acting through any authorized representative of the
    head of the agency who is an employee of the United States or a
    member of the armed forces, shall have the right to examine all
    records of the contractor or subcontractor related to - 
        "(A) the proposal for the contract or subcontract;
        "(B) the discussions conducted on the proposal;
        "(C) pricing of the contract or subcontract; or
        "(D) performance of the contract or subcontract.
      "(2) The right of the head of an agency under paragraph (1) shall
    expire three years after final payment under the contract or
    subcontract.
      "(3) In this subsection, the term 'records' includes books,
    documents, and other data."
      Pub. L. 103-355, Sec. 1204(1), redesignated subsec. (f) as (g).
    Former subsec. (g) redesignated (i).
      Subsec. (h). Pub. L. 103-355, Sec. 1206, added subsec. (h).
      Subsec. (i). Pub. L. 103-355, Sec. 1208, amended heading and text
    of subsec. (i) generally. Prior to amendment, text read as follows:
    "In this section, the term 'cost or pricing data' means all facts
    that, as of the date of agreement on the price of a contract (or
    the price of a contract modification), a prudent buyer or seller
    would reasonably expect to affect price negotiations significantly.
    Such term does not include information that is judgmental, but does
    include the factual information from which a judgment was derived."
      Pub. L. 103-355, Sec. 1204(1), redesignated subsec. (g) as (i).
      1991 - Subsec. (a)(1)(A). Pub. L. 102-190, Sec. 804(a), amended
    subpar. (A) generally. Prior to amendment, subpar. (A) read as
    follows: "An offeror for a prime contract under this chapter to be
    entered into using procedures other than sealed-bid procedures
    shall be required to submit cost or pricing data before the award
    of the contract if the price of the contract to the United States
    is expected to exceed $500,000 or, in the case of a contract to be
    awarded after December 31, 1995, $100,000."
      Subsec. (a)(1)(B). Pub. L. 102-190, Sec. 804(a), amended subpar.
    (B) generally. Prior to amendment, subpar. (B) read as follows:
    "The contractor for a contract under this chapter shall be required
    to submit cost or pricing data before the pricing of a change or
    modification to the contract if the price adjustment is expected to
    exceed the dollar amount applicable under subparagraph (A) to that
    contract (or such lesser amount as may be prescribed by the head of
    the agency)."
      Pub. L. 102-25, Sec. 701(b)(1), substituted "the dollar amount
    applicable under subparagraph (A) to that contract" for "$500,000
    (or such lesser amount as may be prescribed by the head of the
    agency) or, in the case of a change or modification to a contract
    to be made after December 31, 1995, $100,000".
      Subsec. (a)(1)(C). Pub. L. 102-190, Sec. 804(a), amended subpar.
    (C) generally. Prior to amendment, subpar. (C) read as follows: "An
    offeror for a subcontract (at any tier) of a contract under this
    chapter shall be required to submit cost or pricing data before the
    award of the subcontract if - 
        "(i) the price of the subcontract is expected to exceed the
      dollar amount applicable under subparagraph (A) to the prime
      contract of that subcontract; and
        "(ii) the prime contractor and each higher-tier subcontractor
      have been required to make available cost or pricing data under
      this section."
      Subsec. (a)(1)(C)(i). Pub. L. 102-25, Sec. 701(b)(2), substituted
    "the dollar amount applicable under subparagraph (A) to the prime
    contract of that subcontract" for "$500,000 or, in the case of a
    subcontract to be awarded after December 31, 1995, $100,000".
      Subsec. (a)(1)(D). Pub. L. 102-190, Sec. 804(a), amended subpar.
    (D) generally. Prior to amendment, subpar. (D) read as follows:
    "The subcontractor for a subcontract covered by subparagraph (C)
    shall be required to submit cost or pricing data before the pricing
    of a change or modification to the subcontract if the price
    adjustment is expected to exceed the dollar amount applicable under
    subparagraph (A) to the prime contract of that subcontract (or such
    lesser amount as may be prescribed by the head of the agency)."
      Pub. L. 102-25, Sec. 701(b)(3), substituted "the dollar amount
    applicable under subparagraph (A) to the prime contract of that
    subcontract" for "$500,000 (or such lesser amount as may be
    prescribed by the head of the agency) or, in the case of a change
    or modification to be made after December 31, 1995, $100,000".
      Subsec. (a)(5). Pub. L. 102-190, Sec. 804(c)(1), substituted
    "paragraph (1)(C)" for "paragraph (1)(C)(ii)".
      Subsec. (a)(6). Pub. L. 102-190, Sec. 804(b), added par. (6).
      Subsec. (e)(1)(A)(i). Pub. L. 102-25, Sec. 701(f)(8), which
    directed the substitution of "Internal Revenue Code of 1986" for
    "Internal Revenue Code of 1954", could not be executed because
    "Internal Revenue Code of 1954" does not appear.
      Subsec. (e)(1)(A)(ii). Pub. L. 102-190, Sec. 1061(a)(9),
    substituted "Internal Revenue Code of 1986" for "Internal Revenue
    Code of 1954".
      1990 - Subsec. (a)(1)(A). Pub. L. 101-510, Sec. 803(a)(1)(A),
    substituted "$500,000 or, in the case of a contract to be awarded
    after December 31, 1995, $100,000" for "$100,000".
      Subsec. (a)(1)(B). Pub. L. 101-510, Sec. 803(a)(1)(B),
    substituted "$500,000 (or such lesser amount as may be prescribed
    by the head of the agency) or, in the case of a change or
    modification to a contract to be made after December 31, 1995,
    $100,000" for "$100,000".
      Subsec. (a)(1)(C)(i). Pub. L. 101-510, Sec. 803(a)(1)(C),
    substituted "$500,000 or, in the case of a subcontract to be
    awarded after December 31, 1995, $100,000" for "$100,000".
      Subsec. (a)(1)(D). Pub. L. 101-510, Sec. 803(a)(1)(D),
    substituted "$500,000 (or such lesser amount as may be prescribed
    by the head of the agency) or, in the case of a change or
    modification to be made after December 31, 1995, $100,000" for
    "$100,000".
      Subsec. (c). Pub. L. 101-510, Sec. 803(d), inserted at end "In
    any case in which the head of the agency requires such data to be
    submitted under this subsection, the head of the agency shall
    document in writing the reasons for such requirement."
      1987 - Subsec. (a)(5). Pub. L. 100-180, Sec. 804(b)(1),
    substituted "a waiver under subsection (b)(2)" for "such a waiver",
    and struck out first sentence authorizing head of an agency to
    waive requirement under this subsection for contractor,
    subcontractor, or offeror to submit cost or pricing data.
      Subsec. (e)(2). Pub. L. 100-180, Sec. 804(b)(2), amended par. (2)
    generally. Prior to amendment, par. (2) read as follows: "Except as
    provided under subsection (d), the liability of a contractor under
    this subsection shall not be affected by the contractor's refusal
    to submit a certification under subsection (a)(2) with respect to
    the cost or pricing data involved."
      Subsec. (g). Pub. L. 100-180, Sec. 804(a), amended subsec. (g)
    generally. Prior to amendment, subsec. (g) read as follows: "In
    this section, the term 'cost or pricing data' means all information
    that is verifiable and that, as of the date of agreement on the
    price of a contract (or the price of a contract modification), a
    prudent buyer or seller would reasonably expect to affect price
    negotiations significantly. Such term does not include information
    that is judgmental, but does include the factual information from
    which a judgment was derived."

                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Pub. L. 108-375, div. A, title VIII, Sec. 818(b), Oct. 28, 2004,
    118 Stat. 2016, as amended by Pub. L. 109-364, div. A, title X,
    Sec. 1071(g)(11), Oct. 17, 2006, 120 Stat. 2403, provided that:
    "Paragraph (3) of subsection (b) of section 2306a of title 10,
    United States Code (as added by subsection (a)), shall take effect
    on June 1, 2005, and shall apply with respect to offers submitted,
    and to modifications of contracts or subcontracts made, on or after
    that date."

                     EFFECTIVE DATE OF 1996 AMENDMENT                 
      For effective date and applicability of amendment by sections
    4201(a) and 4321(b)(7) of Pub. L. 104-106, see section 4401 of Pub.
    L. 104-106, set out as a note under section 251 of Title 41, Public
    Contracts.
      Section 4321(a) of Pub. L. 104-106 provided that the amendment
    made by that section is effective as of Oct. 13, 1994, and as if
    included in Pub. L. 103-355 as enacted.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Section 803(a)(2) of Pub. L. 101-510, as amended by Pub. L. 102-
    25, title VII, Sec. 704(a)(4), Apr. 6, 1991, 105 Stat. 118,
    provided that the amendments to this section by Pub. L. 101-510
    would apply to contracts entered into after Dec. 5, 1990,
    subcontracts under such contracts, and modifications or changes to
    such contracts and subcontracts, prior to repeal by Pub. L. 102-
    190, div. A, title VIII, Sec. 804(c)(2), Dec. 5, 1991, 105 Stat.
    1416.

                     EFFECTIVE DATE OF 1987 AMENDMENT                 
      Section 804(c) of Pub. L. 100-180 provided that:
      "(1) Subsection (a) [amending this section] shall apply to any
    contract, or modification of a contract, entered into after the end
    of the 30-day period beginning on the date of the enactment of this
    Act [Dec. 4, 1987].
      "(2) The amendments made by subsection (b) [amending this
    section] shall apply with respect to contracts, or modifications of
    contracts, entered into after the end of the 120-day period
    beginning on October 18, 1986."

                     EFFECTIVE DATE OF 1986 AMENDMENT                 
      Section 101(c) [title X, Sec. 952(d)] of Pub. L. 99-500 and Pub.
    L. 99-591, and section 952(d) of title IX, formerly title IV, of
    Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273, provided that:
      "(1) Except as provided in paragraph (2), section 2306a of title
    10, United States Code (as added by subsection (a)), and the
    amendment and repeal made by subsection (b) [amending section 2306
    of this title and repealing a provision set out as a note under
    section 2304 of this title], shall apply with respect to contracts
    or modifications on contracts entered into after the end of the 120-
    day period beginning on the date of the enactment of this Act
    [Oct. 18, 1986].
      "(2) Subsection (e) of such section shall apply with respect to
    contracts or modifications on contracts entered into after November
    7, 1985."

                                REGULATIONS                            
      Section 803(c) of Pub. L. 101-510, directed Secretary of Defense
    to prescribe regulations identifying type of procurements for which
    contracting officers should consider requiring submission of
    certified cost or pricing data under subsec. (c) of this section,
    and also directed Secretary to prescribe regulations concerning
    types of information that offerors had to submit for contracting
    officer to consider in determining whether price of procurement to
    Government was fair and reasonable when certified cost or pricing
    data were not required to be submitted under this section because
    price of procurement to the United States was not expected to
    exceed $500,000, such information, at minimum, to include
    appropriate information on prices at which such offeror had
    previously sold same or similar products, with such regulations to
    be prescribed not later than six months after Nov. 5, 1990, prior
    to repeal by Pub. L. 103-355, title I, Sec. 1210, Oct. 13, 1994,
    108 Stat. 3277.

        GRANTS OF EXCEPTIONS TO COST OR PRICING DATA CERTIFICATION
           REQUIREMENTS AND WAIVERS OF COST ACCOUNTING STANDARDS
      Pub. L. 107-314, div. A, title VIII, Sec. 817, Dec. 2, 2002, 116
    Stat. 2610, provided that:
      "(a) Guidance for Exceptions in Exceptional Circumstances. - Not
    later than 60 days after the date of the enactment of this Act
    [Dec. 2, 2002], the Secretary of Defense shall issue guidance on
    the circumstances under which it is appropriate to grant an
    exceptional case exception or waiver with respect to certified cost
    and pricing data and cost accounting standards.
      "(b) Determination Required for Exceptional Case Exception or
    Waiver. - The guidance shall, at a minimum, include a limitation
    that a grant of an exceptional case exception or waiver is
    appropriate with respect to a contract, subcontract, or (in the
    case of submission of certified cost and pricing data) modification
    only upon a determination that - 
        "(1) the property or services cannot reasonably be obtained
      under the contract, subcontract, or modification, as the case may
      be, without the grant of the exception or waiver;
        "(2) the price can be determined to be fair and reasonable
      without the submission of certified cost and pricing data or the
      application of cost accounting standards, as the case may be; and
        "(3) there are demonstrated benefits to granting the exception
      or waiver.
      "(c) Applicability of New Guidance. - The guidance issued under
    subsection (a) shall apply to each exceptional case exception or
    waiver that is granted on or after the date on which the guidance
    is issued.
      "(d) Annual Report on Both Commercial Item and Exceptional Case
    Exceptions and Waivers With Price or Value Greater Than
    $15,000,000. - (1) The Secretary of Defense shall transmit to the
    congressional defense committees [Committees on Armed Services and
    Appropriations of the Senate and the House of Representatives]
    promptly after the end of each fiscal year a report on commercial
    item exceptions, and exceptional case exceptions and waivers,
    described in paragraph (2) that were granted during that fiscal
    year.
      "(2) The report for a fiscal year shall include - 
        "(A) with respect to any commercial item exception granted in
      the case of a contract, subcontract, or contract or subcontract
      modification that is expected to have a price of $15,000,000 or
      more, an explanation of the basis for the determination that the
      products or services to be purchased are commercial items,
      including an identification of the specific steps taken to ensure
      price reasonableness; and
        "(B) with respect to any exceptional case exception or waiver
      granted in the case of a contract or subcontract that is expected
      to have a value of $15,000,000 or more, an explanation of the
      basis for the determination described in subsection (b),
      including an identification of the specific steps taken to ensure
      that the price was fair and reasonable.
      "(e) Definitions. - In this section:
        "(1) The term 'exceptional case exception or waiver' means
      either of the following:
          "(A) An exception pursuant to section 2306a(b)(1)(C) of title
        10, United States Code, relating to submission of certified
        cost and pricing data.
          "(B) A waiver pursuant to section 26(f)(5)(B) of the Office
        of Federal Procurement Policy Act (41 U.S.C. 422(f)(5)(B)),
        relating to the applicability of cost accounting standards to
        contracts and subcontracts.
        "(2) The term 'commercial item exception' means an exception
      pursuant to section 2306a(b)(1)(B) of title 10, United States
      Code, relating to submission of certified cost and pricing data."

             DEFENSE COMMERCIAL PRICING MANAGEMENT IMPROVEMENT         
      Pub. L. 105-261, div. A, title VIII, Sec. 803, Oct. 17, 1998, 112
    Stat. 2081, as amended by Pub. L. 106-65, div. A, title X, Sec.
    1067(3), Oct. 5, 1999, 113 Stat. 774; Pub. L. 107-314, div. A,
    title VIII, Sec. 823, Dec. 2, 2002, 116 Stat. 2615; Pub. L. 109-
    364, div. A, title VIII, Sec. 819, Oct. 17, 2006, 120 Stat. 2330,
    provided that:
      "(a) Modification of Pricing Regulations for Certain Commercial
    Items Exempt From Cost or Pricing Data Certification Requirements. -
     (1) The Federal Acquisition Regulation issued in accordance with
    sections 6 and 25 of the Office of Federal Procurement Policy Act
    (41 U.S.C. 405, 421) shall be revised to clarify the procedures and
    methods to be used for determining the reasonableness of prices of
    exempt commercial items (as defined in subsection (d)).
      "(2) The regulations shall, at a minimum, provide specific
    guidance on - 
        "(A) the appropriate application and precedence of such price
      analysis tools as catalog-based pricing, market-based pricing,
      historical pricing, parametric pricing, and value analysis;
        "(B) the circumstances under which contracting officers should
      require offerors of exempt commercial items to provide - 
          "(i) information on prices at which the offeror has
        previously sold the same or similar items; or
          "(ii) other information other than certified cost or pricing
        data;
        "(C) the role and responsibility of Department of Defense
      support organizations in procedures for determining price
      reasonableness; and
        "(D) the meaning and appropriate application of the term
      'purposes other than governmental purposes' in section 4(12) of
      the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)).
      "(3) This subsection shall cease to be effective 1 year after the
    date on which final regulations prescribed pursuant to paragraph
    (1) take effect.
      "(b) Unified Management of Procurement of Exempt Commercial
    Items. - The Secretary of Defense shall develop and implement
    procedures to ensure that, whenever appropriate, a single item
    manager or contracting officer is responsible for negotiating and
    entering into all contracts from a single contractor for the
    procurement of exempt commercial items or for the procurement of
    items in a category of exempt commercial items.
      "(c) Commercial Price Trend Analysis. - (1) The Secretary of
    Defense shall develop and implement procedures that, to the maximum
    extent that is practicable and consistent with the efficient
    operation of the Department of Defense, provide for the collection
    and analysis of information on price trends for categories of
    exempt commercial items described in paragraph (2).
      "(2) A category of exempt commercial items referred to in
    paragraph (1) consists of exempt commercial items - 
        "(A) that are in a single Federal Supply Group or Federal
      Supply Class, are provided by a single contractor, or are
      otherwise logically grouped for the purpose of analyzing
      information on price trends; and
        "(B) for which there is a potential for the price paid to be
      significantly higher (on a percentage basis) than the prices
      previously paid in procurements of the same or similar items for
      the Department of Defense, as determined by the head of the
      procuring Department of Defense agency or the Secretary of the
      procuring military department on the basis of criteria prescribed
      by the Secretary of Defense.
      "(3) The head of a Department of Defense agency or the Secretary
    of a military department shall take appropriate action to address
    any unreasonable escalation in prices being paid for items procured
    by that agency or military department as identified in an analysis
    conducted pursuant to paragraph (1).
      "(4) Not later than April 1 of each of fiscal years 2000 through
    2009, the Secretary of Defense shall submit to the Committee on
    Armed Services of the Senate and the Committee on Armed Services of
    the House of Representatives a report on the analyses of price
    trends that were conducted by the Secretary of each military
    department and the Director of the Defense Logistics Agency for
    categories of exempt commercial items during the preceding fiscal
    year under the procedures prescribed pursuant to paragraph (1). The
    report shall include a description of the actions taken by each
    Secretary and the Director to identify and address any unreasonable
    price escalation for the categories of items.
      "(d) Exempt Commercial Items Defined. - For the purposes of this
    section, the term 'exempt commercial item' means a commercial item
    that is exempt under subsection (b)(1)(B) of section 2306a of title
    10, United States Code, or subsection (b)(1)(B) of section 304A of
    the Federal Property and Administrative Services Act of 1949 (41
    U.S.C. 254b), from the requirements for submission of certified
    cost or pricing data under that section."

                        REVIEW BY INSPECTOR GENERAL                    
      Section 803(b) of Pub. L. 101-510 provided that (1) after
    increase in threshold for submission of cost or pricing data under
    subsec. (a) of this section, as amended by section 803(a) of Pub.
    L. 101-510, had been in effect for three years, Inspector General
    of Department of Defense was to conduct review of effects of
    increase in threshold, (2) that such review was to address whether
    increasing threshold improved acquisition process in terms of
    reduced paperwork, financial or other savings to government, an
    increase in number of contractors participating in defense
    contracting process, and adequacy of information available to
    contracting officers in cases in which certified cost or pricing
    data were not required under this section, (3) that Inspector
    General was to submit to Secretary of Defense a report on review
    conducted under paragraph (1), with Secretary of Defense required
    to submit such report to Congress, along with appropriate comments,
    upon completion of report (and comments) but not later than date on
    which President submitted budget to Congress pursuant to section
    1105 of Title 31, Money and Finance, for fiscal year 1996, prior to
    repeal by Pub. L. 103-355, title I, Sec. 1210, Oct. 13, 1994, 108
    Stat. 3277.

-End-

-CITE-
    10 USC Sec. 2306b                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2306b. Multiyear contracts: acquisition of property

-STATUTE-
      (a) In General. - To the extent that funds are otherwise
    available for obligation, the head of an agency may enter into
    multiyear contracts for the purchase of property whenever the head
    of that agency finds each of the following:
        (1) That the use of such a contract will result in substantial
      savings of the total anticipated costs of carrying out the
      program through annual contracts.
        (2) That the minimum need for the property to be purchased is
      expected to remain substantially unchanged during the
      contemplated contract period in terms of production rate,
      procurement rate, and total quantities.
        (3) That there is a reasonable expectation that throughout the
      contemplated contract period the head of the agency will request
      funding for the contract at the level required to avoid contract
      cancellation.
        (4) That there is a stable design for the property to be
      acquired and that the technical risks associated with such
      property are not excessive.
        (5) That the estimates of both the cost of the contract and the
      anticipated cost avoidance through the use of a multiyear
      contract are realistic.
        (6) In the case of a purchase by the Department of Defense,
      that the use of such a contract will promote the national
      security of the United States.

      (b) Regulations. - (1) Each official named in paragraph (2) shall
    prescribe acquisition regulations for the agency or agencies under
    the jurisdiction of such official to promote the use of multiyear
    contracting as authorized by subsection (a) in a manner that will
    allow the most efficient use of multiyear contracting.
      (2)(A) The Secretary of Defense shall prescribe the regulations
    applicable to the Department of Defense.
      (B) The Secretary of Homeland Security shall prescribe the
    regulations applicable to the Coast Guard, except that the
    regulations prescribed by the Secretary of Defense shall apply to
    the Coast Guard when it is operating as a service in the Navy.
      (C) The Administrator of the National Aeronautics and Space
    Administration shall prescribe the regulations applicable to the
    National Aeronautics and Space Administration.
      (c) Contract Cancellations. - The regulations may provide for
    cancellation provisions in multiyear contracts to the extent that
    such provisions are necessary and in the best interests of the
    United States. The cancellation provisions may include
    consideration of both recurring and nonrecurring costs of the
    contractor associated with the production of the items to be
    delivered under the contract.
      (d) Participation by Subcontractors, Vendors, and Suppliers. - In
    order to broaden the defense industrial base, the regulations shall
    provide that, to the extent practicable - 
        (1) multiyear contracting under subsection (a) shall be used in
      such a manner as to seek, retain, and promote the use under such
      contracts of companies that are subcontractors, vendors, or
      suppliers; and
        (2) upon accrual of any payment or other benefit under such a
      multiyear contract to any subcontractor, vendor, or supplier
      company participating in such contract, such payment or benefit
      shall be delivered to such company in the most expeditious manner
      practicable.

      (e) Protection of Existing Authority. - The regulations shall
    provide that, to the extent practicable, the administration of this
    section, and of the regulations prescribed under this section,
    shall not be carried out in a manner to preclude or curtail the
    existing ability of an agency - 
        (1) to provide for competition in the production of items to be
      delivered under such a contract; or
        (2) to provide for termination of a prime contract the
      performance of which is deficient with respect to cost, quality,
      or schedule.

      (f) Cancellation or Termination for Insufficient Funding. - In
    the event funds are not made available for the continuation of a
    contract made under this section into a subsequent fiscal year, the
    contract shall be canceled or terminated. The costs of cancellation
    or termination may be paid from - 
        (1) appropriations originally available for the performance of
      the contract concerned;
        (2) appropriations currently available for procurement of the
      type of property concerned, and not otherwise obligated; or
        (3) funds appropriated for those payments.

      (g) Contract Cancellation Ceilings Exceeding $100,000,000. - (1)
    Before any contract described in subsection (a) that contains a
    clause setting forth a cancellation ceiling in excess of
    $100,000,000 may be awarded, the head of the agency concerned shall
    give written notification of the proposed contract and of the
    proposed cancellation ceiling for that contract to the
    congressional defense committees, and such contract may not then be
    awarded until the end of a period of 30 days beginning on the date
    of such notification.
      (2) In the case of a contract described in subsection (a) with a
    cancellation ceiling described in paragraph (1), if the budget for
    the contract does not include proposed funding for the costs of
    contract cancellation up to the cancellation ceiling established in
    the contract, the head of the agency concerned shall, as part of
    the certification required by subsection (i)(1)(A), give written
    notification to the congressional defense committees of - 
        (A) the cancellation ceiling amounts planned for each program
      year in the proposed multiyear procurement contract, together
      with the reasons for the amounts planned;
        (B) the extent to which costs of contract cancellation are not
      included in the budget for the contract; and
        (C) a financial risk assessment of not including budgeting for
      costs of contract cancellation.

      (h) Defense Acquisitions of Weapon Systems. - In the case of the
    Department of Defense, the authority under subsection (a) includes
    authority to enter into the following multiyear contracts in
    accordance with this section:
        (1) A multiyear contract for the purchase of a weapon system,
      items and services associated with a weapon system, and logistics
      support for a weapon system.
        (2) A multiyear contract for advance procurement of components,
      parts, and materials necessary to the manufacture of a weapon
      system, including a multiyear contract for such advance
      procurement that is entered into in order to achieve economic-lot
      purchases and more efficient production rates.

      (i) Defense Acquisitions Specifically Authorized by Law. - (1) A
    multiyear contract may not be entered into for any fiscal year
    under this section for a defense acquisition program that has been
    specifically authorized by law to be carried out using multiyear
    contract authority unless each of the following conditions is
    satisfied:
        (A) The Secretary of Defense certifies to Congress that the
      current future-years defense program fully funds the support
      costs associated with the multiyear program.
        (B) The proposed multiyear contract provides for production at
      not less than minimum economic rates given the existing tooling
      and facilities.

      (2) If for any fiscal year a multiyear contract to be entered
    into under this section is authorized by law for a particular
    procurement program and that authorization is subject to certain
    conditions established by law (including a condition as to cost
    savings to be achieved under the multiyear contract in comparison
    to specified other contracts) and if it appears (after negotiations
    with contractors) that such savings cannot be achieved, but that
    substantial savings could nevertheless be achieved through the use
    of a multiyear contract rather than specified other contracts, the
    President may submit to Congress a request for relief from the
    specified cost savings that must be achieved through multiyear
    contracting for that program. Any such request by the President
    shall include details about the request for a multiyear contract,
    including details about the negotiated contract terms and
    conditions.
      (3) In the case of the Department of Defense, a multiyear
    contract in an amount equal to or greater than $500,000,000 may not
    be entered into for any fiscal year under this section unless the
    contract is specifically authorized by law in an Act other than an
    appropriations Act.
      (4)(A) The Secretary of Defense may obligate funds for
    procurement of an end item under a multiyear contract for the
    purchase of property only for procurement of a complete and usable
    end item.
      (B) The Secretary of Defense may obligate funds appropriated for
    any fiscal year for advance procurement under a contract for the
    purchase of property only for the procurement of those long-lead
    items necessary in order to meet a planned delivery schedule for
    complete major end items that are programmed under the contract to
    be acquired with funds appropriated for a subsequent fiscal year
    (including an economic order quantity of such long-lead items when
    authorized by law).
      (j) Defense Contract Options for Varying Quantities. - The
    Secretary of Defense may instruct the Secretary of the military
    department concerned to incorporate into a proposed multiyear
    contract negotiated priced options for varying the quantities of
    end items to be procured over the period of the contract.
      (k) Multiyear Contract Defined. - For the purposes of this
    section, a multiyear contract is a contract for the purchase of
    property for more than one, but not more than five, program years.
    Such a contract may provide that performance under the contract
    during the second and subsequent years of the contract is
    contingent upon the appropriation of funds and (if it does so
    provide) may provide for a cancellation payment to be made to the
    contractor if such appropriations are not made.
      (l) Various Additional Requirements With Respect to Multiyear
    Defense Contracts. - (1)(A) The head of an agency may not initiate
    a contract described in subparagraph (B) unless the congressional
    defense committees are notified of the proposed contract at least
    30 days in advance of the award of the proposed contract.
      (B) Subparagraph (A) applies to the following contracts:
        (i) A multiyear contract - 
          (I) that employs economic order quantity procurement in
        excess of $20,000,000 in any one year of the contract; or
          (II) that includes an unfunded contingent liability in excess
        of $20,000,000.

        (ii) Any contract for advance procurement leading to a
      multiyear contract that employs economic order quantity
      procurement in excess of $20,000,000 in any one year.

      (2) The head of an agency may not initiate a multiyear contract
    for which the economic order quantity advance procurement is not
    funded at least to the limits of the Government's liability.
      (3) The head of an agency may not initiate a multiyear
    procurement contract for any system (or component thereof) if the
    value of the multiyear contract would exceed $500,000,000 unless
    authority for the contract is specifically provided in an
    appropriations Act.
      (4) Not later than the date of the submission of the President's
    budget request under section 1105 of title 31, the Secretary of
    Defense shall submit a report to the congressional defense
    committees each year, providing the following information with
    respect to each multiyear contract (and each extension of an
    existing multiyear contract) entered into, or planned to be entered
    into, by the head of an agency during the current or preceding
    year, shown for each year in the current future-years defense
    program and in the aggregate over the period of the current future-
    years defense program:
        (A) The amount of total obligational authority under the
      contract (or contract extension) and the percentage that such
      amount represents of - 
          (i) the applicable procurement account; and
          (ii) the agency procurement total.

        (B) The amount of total obligational authority under all
      multiyear procurements of the agency concerned (determined
      without regard to the amount of the multiyear contract (or
      contract extension)) under multiyear contracts in effect at the
      time the report is submitted and the percentage that such amount
      represents of - 
          (i) the applicable procurement account; and
          (ii) the agency procurement total.

        (C) The amount equal to the sum of the amounts under
      subparagraphs (A) and (B), and the percentage that such amount
      represents of - 
          (i) the applicable procurement account; and
          (ii) the agency procurement total.

        (D) The amount of total obligational authority under all
      Department of Defense multiyear procurements (determined without
      regard to the amount of the multiyear contract (or contract
      extension)), including any multiyear contract (or contract
      extension) that has been authorized by the Congress but not yet
      entered into, and the percentage that such amount represents of
      the procurement accounts of the Department of Defense treated in
      the aggregate.

      (5) The head of an agency may not enter into a multiyear contract
    (or extend an existing multiyear contract), the value of which
    would exceed $500,000,000 (when entered into or when extended, as
    the case may be), until the Secretary of Defense submits to the
    congressional defense committees a report containing the
    information described in paragraph (4) with respect to the contract
    (or contract extension).
      (6) The head of an agency may not terminate a multiyear
    procurement contract until 10 days after the date on which notice
    of the proposed termination is provided to the congressional
    defense committees.
      (7) The execution of multiyear contracting authority shall
    require the use of a present value analysis to determine lowest
    cost compared to an annual procurement.
      (8) This subsection does not apply to the National Aeronautics
    and Space Administration or to the Coast Guard.
      (9) In this subsection:
        (A) The term "applicable procurement account" means, with
      respect to a multiyear procurement contract (or contract
      extension), the appropriation account from which payments to
      execute the contract will be made.
        (B) The term "agency procurement total" means the procurement
      accounts of the agency entering into a multiyear procurement
      contract (or contract extension) treated in the aggregate.

-SOURCE-
    (Added Pub. L. 103-355, title I, Sec. 1022(a)(1), Oct. 13, 1994,
    108 Stat. 3257; amended Pub. L. 104-106, div. A, title XV, Sec.
    1502(a)(10), div. E, title LVI, Sec. 5601(b), Feb. 10, 1996, 110
    Stat. 503, 699; Pub. L. 105-85, div. A, title VIII, Sec. 806(a)(1),
    (b)(1), (c), title X, Sec. 1073(a)(47), (48)(A), Nov. 18, 1997, 111
    Stat. 1834, 1835, 1903; Pub. L. 106-65, div. A, title VIII, Sec.
    809, title X, Sec. 1067(1), Oct. 5, 1999, 113 Stat. 705, 774; Pub.
    L. 106-398, Sec. 1 [[div. A], title VIII, Secs. 802(c), 806], Oct.
    30, 2000, 114 Stat. 1654, 1654A-205, 1654A-207; Pub. L. 107-296,
    title XVII, Sec. 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L.
    107-314, div. A, title VIII, Sec. 820(a), Dec. 2, 2002, 116 Stat.
    2613; Pub. L. 108-136, div. A, title X, Sec. 1043(b)(10), Nov. 24,
    2003, 117 Stat. 1611; Pub. L. 108-375, div. A, title VIII, Sec.
    814(a), title X, Sec. 1084(b)(2), Oct. 28, 2004, 118 Stat. 2014,
    2060.)

-MISC1-
                                AMENDMENTS                            
      2004 - Subsec. (g). Pub. L. 108-375, Sec. 814(a)(1), designated
    existing provisions as par. (1).
      Subsec. (g)(1). Pub. L. 108-375, Secs. 814(a)(2), 1084(b)(2),
    amended par. (1) identically, substituting "congressional defense
    committees" for "Committee on Armed Services and the Committee on
    Appropriations of the Senate and the Committee on Armed Services
    and the Committee on Appropriations of the House of
    Representatives".
      Subsec. (g)(2). Pub. L. 108-375, Sec. 814(a)(3), added par. (2).
      2003 - Subsec. (l)(9), (10). Pub. L. 108-136 redesignated par.
    (10) as (9) and struck out former par. (9) which read as follows:
    "In this subsection, the term 'congressional defense committees'
    means the following:
        "(A) The Committee on Armed Services of the Senate and the
      Subcommittee on Defense of the Committee on Appropriations of the
      Senate.
        "(B) The Committee on Armed Services of the House of
      Representatives and the Subcommittee on National Security of the
      Committee on Appropriations of the House of Representatives."
      2002 - Subsec. (b)(2)(B). Pub. L. 107-296 substituted "of
    Homeland Security" for "of Transportation".
      Subsec. (i)(4). Pub. L. 107-314 added par. (4).
      2000 - Subsec. (k). Pub. L. 106-398, Sec. 1 [[div. A], title
    VIII, Sec. 802(c)], struck out "or services" after "purchase of
    property".
      Subsec. (l)(4). Pub. L. 106-398, Sec. 1 [[div. A], title VIII,
    Sec. 806(1)(A)], in introductory provisions, substituted "Not later
    than the date of the submission of the President's budget request
    under section 1105 of title 31, the Secretary of Defense shall
    submit a report to the congressional defense committees each year,
    providing the following information with respect to each multiyear
    contract (and each extension of an existing multiyear contract)
    entered into, or planned to be entered into, by the head of an
    agency during the current or preceding year" for "The head of an
    agency may not enter into a multiyear contract (or extend an
    existing multiyear contract) until the Secretary of Defense submits
    to the congressional defense committees a report with respect to
    that contract (or contract extension) that provides the following
    information".
      Subsec. (l)(4)(B). Pub. L. 106-398, Sec. 1 [[div. A], title VIII,
    Sec. 806(1)(B)], substituted "in effect at the time the report is
    submitted" for "in effect immediately before the contract (or
    contract extension) is entered into" in introductory provisions.
      Subsec. (l)(5) to (10). Pub. L. 106-398, Sec. 1 [[div. A], title
    VIII, Sec. 806(2), (3)], added par. (5) and redesignated former
    pars. (5) to (9) as (6) to (10), respectively.
      1999 - Subsec. (g). Pub. L. 106-65, Sec. 1067(1), substituted
    "and the Committee on Armed Services" for "and the Committee on
    National Security".
      Subsec. (l)(4) to (7). Pub. L. 106-65, Sec. 809(1), (2), added
    par. (4) and redesignated former pars. (4) to (6) as (5) to (7),
    respectively. Former par. (7) redesignated (8).
      Subsec. (l)(8). Pub. L. 106-65, Sec. 809(1), redesignated par.
    (7) as (8).
      Subsec. (l)(8)(B). Pub. L. 106-65, Sec. 1067(1), substituted
    "Committee on Armed Services" for "Committee on National Security".
      Subsec. (l)(9). Pub. L. 106-65, Sec. 809(3), added par. (9).
      1997 - Pub. L. 105-85, Sec. 1073(a)(48)(A), inserted ":
    acquisition of property" in section catchline.
      Subsec. (a). Pub. L. 105-85, Sec. 806(c)(1), substituted "finds
    each of the following:" for "finds - " in introductory provisions,
    capitalized first letter of first word in pars. (1) to (6), and
    substituted a period for semicolon at end of pars. (1) to (4) and
    for "; and" at end of par. (5).
      Subsec. (d)(1). Pub. L. 105-85, Sec. 806(c)(2), substituted
    "subsection (a)" for "paragraph (1)".
      Subsec. (i)(1)(A). Pub. L. 105-85, Sec. 806(c)(3), substituted
    "future-years" for "five-year".
      Subsec. (i)(3). Pub. L. 105-85, Sec. 806(a)(1), added par. (3).
      Subsec. (k). Pub. L. 105-85, Sec. 1073(a)(47), substituted "this
    section" for "this subsection".
      Subsec. (l). Pub. L. 105-85, Sec. 806(b)(1), added subsec. (l).
      1996 - Subsec. (g). Pub. L. 104-106, Sec. 1502(a)(10),
    substituted "the Committee on Armed Services and the Committee on
    Appropriations of the Senate and the Committee on National Security
    and the Committee on Appropriations of the" for "the Committees on
    Armed Services and on Appropriations of the Senate and".
      Subsecs. (k), (l). Pub. L. 104-106, Sec. 5601(b), redesignated
    subsec. (l) as (k) and struck out former subsec. (k) which read as
    follows: "Inapplicability to Automatic Data Processing Contracts. -
    This section does not apply to contracts for the purchase of
    property to which section 111 of the Federal Property and
    Administrative Services Act of 1949 (40 U.S.C. 759) applies."

                     EFFECTIVE DATE OF 2002 AMENDMENTS                 
      Pub. L. 107-314, div. A, title VIII, Sec. 820(b), Dec. 2, 2002,
    116 Stat. 2614, provided that:
      "(1) Paragraph (4) of section 2306b(i) of title 10, United States
    Code, as added by subsection (a), shall not apply with respect to
    any contract awarded before the date of the enactment of this Act
    [Dec. 2, 2002].
      "(2) Nothing in this section [amending this section] shall be
    construed to authorize the expenditure of funds under any contract
    awarded before the date of the enactment of this Act for any
    purpose other than the purpose for which such funds have been
    authorized and appropriated."
      Amendment by Pub. L. 107-296 effective on the date of transfer of
    the Coast Guard to the Department of Homeland Security, see section
    1704(g) of Pub. L. 107-296, set out as a note under section 101 of
    this title.

                     EFFECTIVE DATE OF 1997 AMENDMENT                 
      Section 806(a)(2) of Pub. L. 105-85 provided that: "Paragraph (3)
    of section 2306b(i) of title 10, United States Code, as added by
    paragraph (1), shall not apply with respect to a contract
    authorized by law before the date of the enactment of this Act
    [Nov. 18, 1997]."
      Section 806(b)(2) of Pub. L. 105-85 provided that: "The amendment
    made by paragraph (1) [amending this section] shall take effect on
    October 1, 1998."

                     EFFECTIVE DATE OF 1996 AMENDMENT                 
      Amendment by section 5601(b) of Pub. L. 104-106 effective 180
    days after Feb. 10, 1996, see section 5701 of Pub. L. 104-106, Feb.
    10, 1996, 110 Stat. 702.

                              EFFECTIVE DATE                          
      For effective date and applicability of section, see section
    10001 of Pub. L. 103-355, set out as an Effective Date of 1994
    Amendment note under section 251 of Title 41, Public Contracts.

                      MULTIYEAR PROCUREMENT CONTRACTS                  
      Pub. L. 105-56, title VIII, Sec. 8008, Oct. 8, 1997, 111 Stat.
    1221, provided that:
      "(a) None of the funds provided in this Act [see Tables for
    classification] shall be available to initiate: (1) a multiyear
    contract that employs economic order quantity procurement in excess
    of $20,000,000 in any one year of the contract or that includes an
    unfunded contingent liability in excess of $20,000,000; or (2) a
    contract for advance procurement leading to a multiyear contract
    that employs economic order quantity procurement in excess of
    $20,000,000 in any one year, unless the congressional defense
    committees [Committee on Armed Services and Subcommittee on
    National Security of the Committee on Appropriations of the House
    of Representatives and Committee on Armed Services and Subcommittee
    on Defense of the Committee on Appropriations of the Senate] have
    been notified at least 30 days in advance of the proposed contract
    award: Provided, That no part of any appropriation contained in
    this Act shall be available to initiate a multiyear contract for
    which the economic order quantity advance procurement is not funded
    at least to the limits of the Government's liability: Provided
    further, That no part of any appropriation contained in this Act
    shall be available to initiate multiyear procurement contracts for
    any systems or component thereof if the value of the multiyear
    contract would exceed $500,000,000 unless specifically provided in
    this Act: Provided further, That no multiyear procurement contract
    can be terminated without 10-day prior notification to the
    congressional defense committees: Provided further, That the
    execution of multiyear authority shall require the use of a present
    value analysis to determine lowest cost compared to an annual
    procurement.
      "Funds appropriated in title III of this Act [111 Stat. 1211] may
    be used for multiyear procurement contracts as follows:
        "Apache Longbow radar;
        "AV-8B aircraft; and
        "Family of Medium Tactical Vehicles.
      "(b) None of the funds provided in this Act and hereafter may be
    used to submit to Congress (or to any committee of Congress) a
    request for authority to enter into a contract covered by those
    provisions of subsection (a) that precede the first proviso of that
    subsection unless - 
        "(1) such request is made as part of the submission of the
      President's Budget for the United States Government for any
      fiscal year and is set forth in the Appendix to that budget as
      part of proposed legislative language for appropriations bills
      for the next fiscal year; or
        "(2) such request is formally submitted by the President as a
      budget amendment; or
        "(3) the Secretary of Defense makes such request in writing to
      the congressional defense committees."
      Similar provisions were contained in the following appropriation
    acts:
      Pub. L. 109-289, div. A, title VIII, Sec. 8008, Sept. 29, 2006,
    120 Stat. 1273.
      Pub. L. 109-148, div. A, title VIII, Sec. 8008, Dec. 30, 2005,
    119 Stat. 2698.
      Pub. L. 108-287, title VIII, Sec. 8008, Aug. 5, 2004, 118 Stat.
    970.
      Pub. L. 108-87, title VIII, Sec. 8008, Sept. 30, 2003, 117 Stat.
    1072.
      Pub. L. 107-248, title VIII, Sec. 8008, Oct. 23, 2002, 116 Stat.
    1537.
      Pub. L. 107-117, div. A, title VIII, Sec. 8008, Jan. 10, 2002,
    115 Stat. 2248.
      Pub. L. 106-259, title VIII, Sec. 8008, Aug. 9, 2000, 114 Stat.
    675.
      Pub. L. 106-79, title VIII, Sec. 8008, Oct. 25, 1999, 113 Stat.
    1232.
      Pub. L. 105-262, title VIII, Sec. 8008, Oct. 17, 1998, 112 Stat.
    2298.
      Pub. L. 104-208, div. A, title I, Sec. 101(b) [title VIII, Sec.
    8009], Sept. 30, 1996, 110 Stat. 3009-71, 3009-89.
      Pub. L. 104-61, title VIII, Sec. 8010, Dec. 1, 1995, 109 Stat.
    653.
      Pub. L. 103-335, title VIII, Sec. 8010, Sept. 30, 1994, 108 Stat.
    2618.
      Pub. L. 103-139, title VIII, Sec. 8011, Nov. 11, 1993, 107 Stat.
    1439.
      Pub. L. 102-396, title IX, Sec. 9013, Oct. 6, 1992, 106 Stat.
    1903.
      Pub. L. 102-172, title VIII, Sec. 8013, Nov. 26, 1991, 105 Stat.
    1173.
      Pub. L. 101-511, title VIII, Sec. 8014, Nov. 5, 1990, 104 Stat.
    1877.
      Pub. L. 101-165, title IX, Sec. 9021, Nov. 21, 1989, 103 Stat.
    1133.

-End-

-CITE-
    10 USC Sec. 2306c                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2306c. Multiyear contracts: acquisition of services

-STATUTE-
      (a) Authority. - Subject to subsections (d) and (e), the head of
    an agency may enter into contracts for periods of not more than
    five years for services described in subsection (b), and for items
    of supply related to such services, for which funds would otherwise
    be available for obligation only within the fiscal year for which
    appropriated whenever the head of the agency finds that - 
        (1) there will be a continuing requirement for the services
      consonant with current plans for the proposed contract period;
        (2) the furnishing of such services will require a substantial
      initial investment in plant or equipment, or the incurrence of
      substantial contingent liabilities for the assembly, training, or
      transportation of a specialized work force; and
        (3) the use of such a contract will promote the best interests
      of the United States by encouraging effective competition and
      promoting economies in operation.

      (b) Covered Services. - The authority under subsection (a)
    applies to the following types of services:
        (1) Operation, maintenance, and support of facilities and
      installations.
        (2) Maintenance or modification of aircraft, ships, vehicles,
      and other highly complex military equipment.
        (3) Specialized training necessitating high quality instructor
      skills (for example, pilot and air crew members; foreign language
      training).
        (4) Base services (for example, ground maintenance; in-plane
      refueling; bus transportation; refuse collection and disposal).
        (5) Environmental remediation services for - 
          (A) an active military installation;
          (B) a military installation being closed or realigned under a
        base closure law; or
          (C) a site formerly used by the Department of Defense.

      (c) Applicable Principles. - In entering into multiyear contracts
    for services under the authority of this section, the head of the
    agency shall be guided by the following principles:
        (1) The portion of the cost of any plant or equipment amortized
      as a cost of contract performance should not exceed the ratio
      between the period of contract performance and the anticipated
      useful commercial life of such plant or equipment. Useful
      commercial life, for this purpose, means the commercial utility
      of the facilities rather than the physical life thereof, with due
      consideration given to such factors as location of facilities,
      specialized nature thereof, and obsolescence.
        (2) Consideration shall be given to the desirability of
      obtaining an option to renew the contract for a reasonable period
      not to exceed three years, at prices not to include charges for
      plant, equipment and other nonrecurring costs, already amortized.
        (3) Consideration shall be given to the desirability of
      reserving in the agency the right, upon payment of the
      unamortized portion of the cost of the plant or equipment, to
      take title thereto under appropriate circumstances.

      (d) Restrictions Applicable Generally. - (1) The head of an
    agency may not initiate under this section a contract for services
    that includes an unfunded contingent liability in excess of
    $20,000,000 unless the congressional defense committees are
    notified of the proposed contract at least 30 days in advance of
    the award of the proposed contract.
      (2) The head of an agency may not initiate a multiyear contract
    for services under this section if the value of the multiyear
    contract would exceed $500,000,000 unless authority for the
    contract is specifically provided by law.
      (3) The head of an agency may not terminate a multiyear
    procurement contract for services until 10 days after the date on
    which notice of the proposed termination is provided to the
    congressional defense committees.
      (4) Before any contract described in subsection (a) that contains
    a clause setting forth a cancellation ceiling in excess of
    $100,000,000 may be awarded, the head of the agency concerned shall
    give written notification of the proposed contract and of the
    proposed cancellation ceiling for that contract to the
    congressional defense committees, and such contract may not then be
    awarded until the end of a period of 30 days beginning on the date
    of such notification.
      (5) In the case of a contract described in subsection (a) with a
    cancellation ceiling described in paragraph (4), if the budget for
    the contract does not include proposed funding for the costs of
    contract cancellation up to the cancellation ceiling established in
    the contract, the head of the agency concerned shall give written
    notification to the congressional defense committees of - 
        (A) the cancellation ceiling amounts planned for each program
      year in the proposed multiyear procurement contract, together
      with the reasons for the amounts planned;
        (B) the extent to which costs of contract cancellation are not
      included in the budget for the contract; and
        (C) a financial risk assessment of not including budgeting for
      costs of contract cancellation.

      (e) Cancellation or Termination for Insufficient Funding After
    First Year. - In the event that funds are not made available for
    the continuation of a multiyear contract for services into a
    subsequent fiscal year, the contract shall be canceled or
    terminated, and the costs of cancellation or termination may be
    paid from - 
        (1) appropriations originally available for the performance of
      the contract concerned;
        (2) appropriations currently available for procurement of the
      type of services concerned, and not otherwise obligated; or
        (3) funds appropriated for those payments.

      (f) Multiyear Contract Defined. - For the purposes of this
    section, a multiyear contract is a contract for the purchase of
    services for more than one, but not more than five, program years.
    Such a contract may provide that performance under the contract
    during the second and subsequent years of the contract is
    contingent upon the appropriation of funds and (if it does so
    provide) may provide for a cancellation payment to be made to the
    contractor if such appropriations are not made.
      [(g) Repealed. Pub. L. 108-136, div. A, title VIII, Sec. 843(a),
    Nov. 24, 2003, 117 Stat. 1553.]
      (h) Military Installation Defined. - In this section, the term
    "military installation" has the meaning given such term in section
    2801(c)(2) of this title.

-SOURCE-
    (Added Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec.
    802(a)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A-203; amended Pub.
    L. 107-314, div. A, title VIII, Secs. 811(a), 827, Dec. 2, 2002,
    116 Stat. 2608, 2617; Pub. L. 108-136, div. A, title VIII, Sec.
    843(a), title X, Sec. 1043(c)(1), Nov. 24, 2003, 117 Stat. 1553,
    1611; Pub. L. 108-375, div. A, title VIII, Sec. 814(b), Oct. 28,
    2004, 118 Stat. 2014.)

-MISC1-
                                AMENDMENTS                            
      2004 - Subsec. (d)(1), (3), (4). Pub. L. 108-375, Sec. 814(b)(1),
    substituted "congressional defense committees" for "committees of
    Congress named in paragraph (5)".
      Subsec. (d)(5). Pub. L. 108-375, Sec. 814(b)(2), amended par. (5)
    generally. Prior to amendment, par. (5) read as follows: "The
    committees of Congress referred to in paragraphs (1), (3), and (4)
    are as follows:
        "(A) The Committee on Armed Services and the Committee on
      Appropriations of the Senate.
        "(B) The Committee on Armed Services and the Committee on
      Appropriations of the House of Representatives."
      2003 - Subsec. (g). Pub. L. 108-136, Sec. 843(a), struck out
    heading and text of subsec. (g). Text read as follows:
      "(1) The authority and restrictions of this section, including
    the authority to enter into contracts for periods of not more than
    five years, shall apply with respect to task order and delivery
    order contracts entered into under the authority of section 2304a,
    2304b, or 2304c of this title.
      "(2) The regulations implementing this subsection shall establish
    a preference that, to the maximum extent practicable, multi-year
    requirements for task order and delivery order contracts be met
    with separate awards to two or more sources under the authority of
    section 2304a(d)(1)(B) of this title."
      Subsec. (h). Pub. L. 108-136, Sec. 1043(c)(1), substituted
    "Military Installation Defined. - In this section, the term" for
    "Additional Definitions. - In this section:
        "(1) The term 'base closure law' has the meaning given such
      term in section 2667(h)(2) of this title.
        "(2) The term".
      2002 - Subsec. (b)(5). Pub. L. 107-314, Sec. 827(a), added par.
    (5).
      Subsec. (g). Pub. L. 107-314, Sec. 811(a), added subsec. (g).
      Subsec. (h). Pub. L. 107-314, Sec. 827(b), added subsec. (h).

                     EFFECTIVE DATE OF 2002 AMENDMENT                 
      Pub. L. 107-314, div. A, title VIII, Sec. 811(b), Dec. 2, 2002,
    116 Stat. 2608, as amended by Pub. L. 108-11, title I, Sec. 1315,
    Apr. 16, 2003, 117 Stat. 570, provided that: "Subsection (g) of
    section 2306c of title 10, United States Code, as added by
    subsection (a), shall apply to all task order and delivery order
    contracts entered into on or after January 1, 2004."

                              EFFECTIVE DATE                          
      Pub. L. 106-398, Sec. 1 [[div. A], title VIII, Sec. 802(d)], Oct.
    30, 2000, 114 Stat. 1654, 1654A-205, provided that: "Section 2306c
    of title 10, United States Code (as added by subsection (a)), shall
    apply with respect to contracts for which solicitations of offers
    are issued after the date of the enactment of this Act [Oct. 30,
    2000]."

-End-

-CITE-
    10 USC Sec. 2307                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2307. Contract financing

-STATUTE-
      (a) Payment Authority. - The head of any 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.

      (b) Performance-Based Payments. - Whenever practicable, payments
    under subsection (a) shall be made on any of the following bases:
        (1) Performance measured by objective, quantifiable methods
      such as delivery of acceptable items, work measurement, or
      statistical process controls.
        (2) Accomplishment of events defined in the program management
      plan.
        (3) Other quantifiable measures of results.

      (c) Payment Amount. - Payments made under subsection (a) may not
    exceed the unpaid contract price.
      (d) Security for Advance Payments. - Advance payments made under
    subsection (a) may be made only if the contractor gives adequate
    security and after a determination by the head of the agency that
    to do so would be in the public interest. Such security may be in
    the form of a lien in favor of the United States on the property
    contracted for, on the balance in an account in which such payments
    are deposited, and on such of the property acquired for performance
    of the contract as the parties may agree. This lien is paramount to
    any other liens and is effective immediately upon the first
    advancement of funds without filing, notice, or any other action by
    the United States.
      (e) Conditions for Progress Payments. - (1) The Secretary of
    Defense shall ensure that any payment for work in progress
    (including materials, labor, and other items) under a defense
    contract that provides for such payments is commensurate with the
    work accomplished that meets standards established under the
    contract. The contractor shall provide such information and
    evidence as the Secretary of Defense determines necessary to permit
    the Secretary to carry out the preceding sentence.
      (2) The Secretary shall ensure that progress payments referred to
    in paragraph (1) are not made for more than 80 percent of the work
    accomplished under a defense contract so long as the Secretary has
    not made the contractual terms, specifications, and price definite.
      (3) This subsection applies to any contract in an amount greater
    than $25,000.
      (f) Conditions for Payments for Commercial Items. - (1) Payments
    under subsection (a) for commercial items may be made under such
    terms and conditions as the head of the agency determines are
    appropriate or customary in the commercial marketplace and are in
    the best interests of the United States. The head of the agency
    shall obtain adequate security for such payments. If the security
    is in the form of a lien in favor of the United States, such lien
    is paramount to all other liens and is effective immediately upon
    the first payment, without filing, notice, or other action by the
    United States.
      (2) Advance payments made under subsection (a) for commercial
    items may include payments, in a total amount of not more than 15
    percent of the contract price, in advance of any performance of
    work under the contract.
      (3) The conditions of subsections (d) and (e) need not be applied
    if they would be inconsistent, as determined by the head of the
    agency, with commercial terms and conditions pursuant to paragraphs
    (1) and (2).
      (g) Certain Navy Contracts. - (1) The Secretary of the Navy shall
    provide that the rate for progress payments on any contract awarded
    by the Secretary for repair, maintenance, or overhaul of a naval
    vessel shall be not less than - 
        (A) 95 percent, in the case of a firm considered to be a small
      business; and
        (B) 90 percent, in the case of any other firm.

      (2) The Secretary of the Navy may advance to private salvage
    companies such funds as the Secretary considers necessary to
    provide for the immediate financing of salvage operations. Advances
    under this paragraph shall be made on terms that the Secretary
    considers adequate for the protection of the United States.
      (3) The Secretary of the Navy shall provide, in each contract for
    construction or conversion of a naval vessel, that, when partial,
    progress, or other payments are made under such contract, the
    United States is secured by a lien upon work in progress and on
    property acquired for performance of the contract on account of all
    payments so made. The lien is paramount to all other liens.
      (h) Vesting of Title in the United States. - If a contract paid
    by a method authorized under subsection (a)(1) provides for title
    to property to vest in the United States, the title to the property
    shall vest in accordance with the terms of the contract, regardless
    of any security interest in the property that is asserted before or
    after the contract is entered into.
      (i) Action in Case of Fraud. - (1) In any case in which the
    remedy coordination official of an agency finds that there is
    substantial evidence that the request of a contractor for advance,
    partial, or progress payment under a contract awarded by that
    agency is based on fraud, the remedy coordination official shall
    recommend that the head of the agency reduce or suspend further
    payments to such contractor.
      (2) The head of an agency receiving a recommendation under
    paragraph (1) in the case of a contractor's request for payment
    under a contract shall determine whether there is substantial
    evidence that the request is based on fraud. Upon making such a
    determination, the agency head may reduce or suspend further
    payments to the contractor under such contract.
      (3) The extent of any reduction or suspension of payments by the
    head of an agency under paragraph (2) on the basis of fraud shall
    be reasonably commensurate with the anticipated loss to the United
    States resulting from the fraud.
      (4) A written justification for each decision of the head of an
    agency whether to reduce or suspend payments under paragraph (2)
    and for each recommendation received by such agency head in
    connection with such decision shall be prepared and be retained in
    the files of such agency.
      (5) The head of an agency shall prescribe procedures to ensure
    that, before such agency head decides to reduce or suspend payments
    in the case of a contractor under paragraph (2), the contractor is
    afforded notice of the proposed reduction or suspension and an
    opportunity to submit matters to the head of the agency in response
    to such proposed reduction or suspension.
      (6) Not later than 180 days after the date on which the head of
    an agency reduces or suspends payments to a contractor under
    paragraph (2), the remedy coordination official of such agency
    shall - 
        (A) review the determination of fraud on which the reduction or
      suspension is based; and
        (B) transmit a recommendation to the head of such agency
      whether the suspension or reduction should continue.

      (7) The head of an agency shall prepare for each year a report
    containing the recommendations made by the remedy coordination
    official of that agency to reduce or suspend payments under
    paragraph (2), the actions taken on the recommendations and the
    reasons for such actions, and an assessment of the effects of such
    actions on the Federal Government. The Secretary of each military
    department shall transmit the annual report of such department to
    the Secretary of Defense. Each such report shall be available to
    any member of Congress upon request.
      (8) This subsection applies to the agencies named in paragraphs
    (1), (2), (3), (4), and (6) of section 2303(a) of this title.
      (9) The head of an agency may not delegate responsibilities under
    this subsection to any person in a position below level IV of the
    Executive Schedule.
      (10) In this subsection, the term "remedy coordination official",
    with respect to an agency, means the person or entity in that
    agency who coordinates within that agency the administration of
    criminal, civil, administrative, and contractual remedies resulting
    from investigations of fraud or corruption related to procurement
    activities.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 85-800, Sec. 9,
    Aug. 28, 1958, 72 Stat. 967; Pub. L. 93-155, title VIII, Sec.
    807(c), Nov. 16, 1973, 87 Stat. 616; Pub. L. 100-370, Sec.
    1(f)(1)(A), July 19, 1988, 102 Stat. 846; Pub. L. 101-510, div. A,
    title VIII, Sec. 836(a), (b), title XIII, Sec. 1322(a)(4), Nov. 5,
    1990, 104 Stat. 1615, 1616, 1671; Pub. L. 102-25, title VII, Sec.
    701(d)(4), (j)(2)(A), Apr. 6, 1991, 105 Stat. 114, 116; Pub. L. 102-
    190, div. A, title X, Sec. 1061(a)(10), Dec. 5, 1991, 105 Stat.
    1472; Pub. L. 102-484, div. A, title X, Sec. 1052(24), Oct. 23,
    1992, 106 Stat. 2500; Pub. L. 103-355, title II, Sec. 2001(a)-(g),
    Oct. 13, 1994, 108 Stat. 3301, 3302; Pub. L. 105-85, div. A, title
    VIII, Sec. 802, Nov. 18, 1997, 111 Stat. 1831; Pub. L. 106-391,
    title III, Sec. 306, Oct. 30, 2000, 114 Stat. 1592.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
                                 1956 ACT                             
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2307(a)      41:154(a).                    Feb. 19, 1948, ch. 65,   
                                                Sec. 5, 62 Stat. 23.    
    2307(b)                                                             
                 41:154 (less (a)).                                     
    --------------------------------------------------------------------

      In subsection (a), the words "and appropriate" are omitted as
    surplusage. The words "whether or not the contract previously
    provided for such payments" are substituted for the words
    "heretofore or hereafter executed".
      In subsection (b), the words "under subsection (a)" are inserted
    for clarity. The words "provide for" are substituted for the words
    "include as security provision for". The words "United States" are
    substituted for the word "Government".

                                 1988 ACT                             
      Subsection (e) is based on Pub. L. 99-145, title IX, Sec. 916,
    Nov. 8, 1985, 99 Stat. 688.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Level IV of the Executive Schedule, referred to in subsec.
    (i)(9), is set out in section 5315 of Title 5, Government
    Organization and Employees.

-MISC2-
                             PRIOR PROVISIONS                         
      Provisions similar to those in subsec. (g) of this section were
    contained in sections 7312, 7364, and 7521 of this title prior to
    repeal by Pub. L. 103-355, Sec. 2001(j)(1).

                                AMENDMENTS                            
      2000 - Subsec. (i)(8). Pub. L. 106-391 substituted "(4), and (6)"
    for "and (4)".
      1997 - Subsecs. (h), (i). Pub. L. 105-85 added subsec. (h) and
    redesignated former subsec. (h) as (i).
      1994 - Pub. L. 103-355, Sec. 2001(a)(1), substituted "Contract
    financing" for "Advance payments" in section catchline.
      Subsec. (a). Pub. L. 103-355, Sec. 2001(a)(2), inserted heading.
      Subsec. (a)(2). Pub. L. 103-355, Sec. 2001(c), struck out "bid"
    before "solicitations".
      Subsec. (b). Pub. L. 103-355, Sec. 2001(a)(7), (b), added subsec.
    (b) and redesignated former subsec. (b) as (c).
      Pub. L. 103-355, Sec. 2001(a)(3), inserted heading.
      Subsec. (c). Pub. L. 103-355, Sec. 2001(a)(7), redesignated
    subsec. (b) as (c). Former subsec. (c) redesignated (d).
      Pub. L. 103-355, Sec. 2001(a)(4), inserted heading.
      Subsec. (d). Pub. L. 103-355, Sec. 2001(d), inserted before
    period at end "and is effective immediately upon the first
    advancement of funds without filing, notice, or any other action by
    the United States".
      Pub. L. 103-355, Sec. 2001(a)(7), redesignated former subsec. (c)
    as (d). Former subsec. (d) redesignated (e).
      Pub. L. 103-355, Sec. 2001(a)(5), inserted heading.
      Subsec. (e). Pub. L. 103-355, Sec. 2001(a)(7), redesignated
    subsec. (d) as (e). Former subsec. (e) redesignated (h).
      Pub. L. 103-355, Sec. 2001(a)(6), inserted heading.
      Subsec. (e)(1). Pub. L. 103-355, Sec. 2001(e)(1), substituted
    "work accomplished that meets standards established under the
    contract" for "work, which meets standards of quality established
    under the contract, that has been accomplished".
      Subsec. (e)(3). Pub. L. 103-355, Sec. 2001(e)(2), amended par.
    (3) generally. Prior to amendment, par. (3) read as follows: "This
    subsection does not apply to any contract for an amount not in
    excess of the amount of the small purchase threshold."
      Subsecs. (f), (g). Pub. L. 103-355, Sec. 2001(f), (g), added
    subsecs. (f) and (g).
      Subsec. (h). Pub. L. 103-355, Sec. 2001(a)(7), redesignated
    subsec. (e) as (h).
      1992 - Subsec. (e)(1). Pub. L. 102-484 substituted "(1)" for
    "(l)" as par. designation after "(e)".
      1991 - Subsec. (d)(3). Pub. L. 102-25, Sec. 701(d)(4),
    substituted "any contract for an amount not in excess of the amount
    of the small purchase threshold" for "contracts for amounts less
    than the maximum amount for small purchases specified in section
    2304(g)(2) of this title".
      Subsec. (e). Pub. L. 102-25, Sec. 701(j)(2)(A), redesignated
    subsec. (f) as (e).
      Subsec. (f). Pub. L. 102-190, which directed the substitution of
    "(1)" for "(l)" as par. designation after "(f)", could not be
    executed because "(l)" did not appear after "(f)".
      Pub. L. 102-25, Sec. 701(j)(2)(A), redesignated subsec. (f) as
    (e).
      1990 - Subsec. (d). Pub. L. 101-510, Sec. 1322(a)(4),
    redesignated subsec. (e) as (d) and struck out former subsec. (d)
    which read as follows: "Payments under subsection (a) in the case
    of any contract, other than partial, progress, or other payments
    specifically provided for in such contract at the time such
    contract was initially entered into, may not exceed $25,000,000
    unless the Committees on Armed Services of the Senate and the House
    of Representatives have been notified in writing of such proposed
    payments and 60 days of continuous session of Congress have expired
    following the date on which such notice was transmitted to such
    Committees and neither House of Congress has adopted, within such
    60-day period, a resolution disapproving such payments. For
    purposes of this section, the continuity of a session of Congress
    is broken only by an adjournment of the Congress sine die, and the
    days on which either House is not in session because of an
    adjournment of more than 3 days to a day certain are excluded in
    the computation of such 60-day period."
      Subsec. (e). Pub. L. 101-510, Sec. 1322(a)(4)(B), redesignated
    subsec. (e) as (d).
      Pub. L. 101-510, Sec. 836(b), inserted at end of par. (1) "The
    contractor shall provide such information and evidence as the
    Secretary of Defense determines necessary to permit the Secretary
    to carry out the preceding sentence."
      Subsec. (f). Pub. L. 101-510, Sec. 836(a), added subsec. (f).
      1988 - Subsec. (e). Pub. L. 100-370 added subsec. (e).
      1973 - Subsec. (d). Pub. L. 93-155 added subsec. (d).
      1958 - Pub. L. 85-800 authorized advance or other payments under
    contracts for property or services by agency, authorized insertion
    in bid solicitations of provision limiting advance or progress
    payments to small business concerns, restricted payments under
    subsec. (a) to unpaid contract price, and reworded generally
    conditions for making advance payments.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Section 836(c) of Pub. L. 101-510, as amended by Pub. L. 102-25,
    title VII, Sec. 701(j)(2)(B), Apr. 6, 1991, 105 Stat. 116, provided
    that: "The provisions of section 2307 of title 10, United States
    Code, that are added by the amendments made by subsections (a) and
    (b) shall apply with respect to contracts entered into on or after
    May 6, 1991."

       RELATIONSHIP OF 1994 AMENDMENT TO PROMPT PAYMENT REQUIREMENTS   
      Section 2001(h) of Pub. L. 103-355 provided that: "The amendments
    made by this section [amending this section and section 7522 of
    this title and repealing sections 7312, 7364, and 7521 of this
    title] 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."

                     LIMITATIONS ON PROGRESS PAYMENTS                 
      Pub. L. 99-145, title IX, Sec. 916, Nov. 8, 1985, 99 Stat. 688,
    which required Secretary of Defense to ensure that any progress
    payment under a defense contract be commensurate with work
    accomplished at standard of quality in contract, that such payments
    be limited to 80 percent of work accomplished so long as contract
    terms are indefinite, that this provision be waived for small
    purchases, and that this provision apply only to contracts for
    which solicitations were issued on or after 150 days after Nov. 8,
    1985, was repealed and restated in subsec. (e) of this section by
    Pub. L. 100-370, Sec. 1(f)(1), July 19, 1988, 102 Stat. 846.

             OBLIGATIONS ENTERED INTO BEFORE NOVEMBER 16, 1973         
      Section 807(e) of Pub. L. 93-155 provided that: "The amendments
    made by this section [amending this section, section 1431 of Title
    50, War and National Defense, and sections 468 and 2092 of Appendix
    to Title 50] shall not affect the carrying out of any contract,
    loan, guarantee, commitment, or other obligation entered into prior
    to the date of enactment of this section [Nov. 16, 1973]."

-End-

-CITE-
    10 USC Sec. 2308                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2308. Buy-to-budget acquisition: end items

-STATUTE-
      (a) Authority To Acquire Additional End Items. - Using funds
    available to the Department of Defense for the acquisition of an
    end item, the head of an agency making the acquisition may acquire
    a higher quantity of the end item than the quantity specified for
    the end item in a law providing for the funding of that acquisition
    if that head of an agency makes each of the following findings:
        (1) The agency has an established requirement for the end item
      that is expected to remain substantially unchanged throughout the
      period of the acquisition.
        (2) It is possible to acquire the higher quantity of the end
      item without additional funding because of production
      efficiencies or other cost reductions.
        (3) The amount of the funds used for the acquisition of the
      higher quantity of the end item will not exceed the amount
      provided under that law for the acquisition of the end item.
        (4) The amount so provided is sufficient to ensure that each
      unit of the end item acquired within the higher quantity is fully
      funded as a complete end item.

      (b) Regulations. - The Secretary of Defense shall prescribe
    regulations for the administration of this section. The regulations
    shall include, at a minimum, the following:
        (1) The level of approval within the Department of Defense that
      is required for a decision to acquire a higher quantity of an end
      item under subsection (a).
        (2) Authority (subject to subsection (a)) to acquire up to 10
      percent more than the quantity of an end item approved in a
      justification and approval of the use of procedures other than
      competitive procedures for the acquisition of the end item under
      section 2304 of this title.

      (c) Notification of Congress. - The head of an agency is not
    required to notify Congress in advance regarding a decision under
    the authority of this section to acquire a higher quantity of an
    end item than is specified in a law described in subsection (a),
    but shall notify the congressional defense committees of the
    decision not later than 30 days after the date of the decision.
      (d) Waiver by Other Law. - A provision of law may not be
    construed as prohibiting the acquisition of a higher quantity of an
    end item under this section unless that provision of law - 
        (1) specifically refers to this section; and
        (2) specifically states that the acquisition of the higher
      quantity of the end item is prohibited notwithstanding the
      authority provided in this section.

      (e) Definitions. - (1) For the purposes of this section, a
    quantity of an end item shall be considered specified in a law if
    the quantity is specified either in a provision of that law or in
    any related representation that is set forth separately in a table,
    chart, or explanatory text included in a joint explanatory
    statement or governing committee report accompanying the law.
      (2) In this section:
        (A) The term "end item" means a production product assembled,
      completed, and ready for issue or deployment.
        (B) The term "head of an agency" means the Secretary of
      Defense, the Secretary of the Army, the Secretary of the Navy,
      and the Secretary of the Air Force.

-SOURCE-
    (Added Pub. L. 107-314, div. A, title VIII, Sec. 801(a)(1), Dec. 2,
    2002, 116 Stat. 2600; amended Pub. L. 108-136, div. A, title X,
    Sec. 1043(b)(11), Nov. 24, 2003, 117 Stat. 1611.)

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2308, acts Aug. 10, 1956, ch. 1041, 70A Stat.
    131; Oct. 23, 1992, Pub. L. 102-484, div. A, title VIII, Sec.
    820(a), 106 Stat. 2458; May 31, 1993, Pub. L. 103-35, title II,
    Sec. 201(e)(2), 107 Stat. 99; Nov. 30, 1993, Pub. L. 103-160, div.
    A, title IX, Sec. 904(d)(1), 107 Stat. 1728, related to assignment
    and delegation of procurement functions and responsibilities, prior
    to repeal by Pub. L. 103-355, title I, Sec. 1503(b)(1), title X,
    Sec. 10001, Oct. 13, 1994, 108 Stat. 3297, 3404, effective Oct. 13,
    1994, except as otherwise provided.

                                AMENDMENTS                            
      2003 - Subsec. (e)(2). Pub. L. 108-136 redesignated subpars. (B)
    and (C) as (A) and (B), respectively, and struck out former subpar.
    (A) which read as follows: "The term 'congressional defense
    committees' means - 
        "(i) the Committee on Armed Services and the Committee on
      Appropriations of the Senate; and
        "(ii) the Committee on Armed Services and the Committee on
      Appropriations of the House of Representatives."

                  TIME FOR ISSUANCE OF FINAL REGULATIONS              
      Pub. L. 107-314, div. A, title VIII, Sec. 801(b), Dec. 2, 2002,
    116 Stat. 2602, provided that: "The Secretary of Defense shall
    issue the final regulations under section 2308(b) of title 10,
    United States Code (as added by subsection (a)), not later than 120
    days after the date of the enactment of this Act [Dec. 2, 2002]."

-End-

-CITE-
    10 USC Sec. 2309                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2309. Allocation of appropriations

-STATUTE-
      (a) Appropriations available for procurement by an agency named
    in section 2303 of this title may, through administrative
    allotment, be made available for obligation for procurement by any
    other agency in amounts authorized by the head of the allotting
    agency and without transfer of funds on the books of the Department
    of the Treasury.
      (b) A disbursing official of the allotting agency may make any
    disbursement chargeable to an allotment under subsection (a) upon a
    voucher certified by an officer or civilian employee of the
    procuring agency.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 97-258, Sec.
    2(b)(1)(B), Sept. 13, 1982, 96 Stat. 1052.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2309(a)      41:159 (2d sentence).         Feb. 19, 1948, ch. 65,   
                                                Sec. 10 (less 1st       
                                                sentence), 62 Stat. 25. 
    2309(b)                                                             
                 41:159 (less 1st and 2d                                
                  sentences).                                           
    --------------------------------------------------------------------

      In subsection (a), the words "an agency named in section 2303 of
    this title" are substituted for the words "any such agency".
      In subsection (b), the words "an allotment under subsection (a)"
    are substituted for the words "such allotments".

                                AMENDMENTS                            
      1982 - Subsec. (b). Pub. L. 97-258 substituted "disbursing
    official" for "disbursing officer".

-End-

-CITE-
    10 USC Sec. 2310                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2310. Determinations and decisions

-STATUTE-
      (a) Individual or Class Determinations and Decisions Authorized. -
     Determinations and decisions required to be made under this
    chapter by the head of an agency may be made for an individual
    purchase or contract or, except to the extent expressly prohibited
    by another provision of law, for a class of purchases or contracts.
    Such determinations and decisions are final.
      (b) Written Findings Required. - (1) Each determination or
    decision under section 2306(g)(1), 2307(d), or 2313(c)(2)(B) of
    this title shall be based on a written finding by the person making
    the determination or decision. The finding shall set out facts and
    circumstances that support the determination or decision.
      (2) Each finding referred to in paragraph (1) is final. The head
    of the agency making such finding shall maintain a copy of the
    finding for not less than 6 years after the date of the
    determination or decision.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 85-800, Sec. 10,
    Aug. 28, 1958, 72 Stat. 967; Pub. L. 87-653, Sec. 1(f), Sept. 10,
    1962, 76 Stat. 529; Pub. L. 89-607, Sec. 1(1), Sept. 27, 1966, 80
    Stat. 850; Pub. L. 90-378, Sec. 2, July 5, 1968, 82 Stat. 290; Pub.
    L. 98-369, div. B, title VII, Sec. 2725, July 18, 1984, 98 Stat.
    1193; Pub. L. 99-145, title XIII, Sec. 1303(a)(16), Nov. 8, 1985,
    99 Stat. 739; Pub. L. 103-355, title I, Sec. 1504, Oct. 13, 1994,
    108 Stat. 3297.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2310(a)      41:156(a) (1st sentence).     Feb. 19, 1948, ch. 65,   
                                                Sec. 7(a) (1st          
                                                sentence), (c), 62 Stat.
                                                24.                     
    2310(b)                                                             
                 41:156(c).                                             
    --------------------------------------------------------------------

      In subsection (a), the words "required * * * under" are
    substituted for the words "provided in".
      In subsection (b), the word "person" is substituted for the word
    "official". The words "to which it applies" are inserted for
    clarity.

                                AMENDMENTS                            
      1994 - Pub. L. 103-355 amended section generally. Prior to
    amendment, section read as follows:
      "(a) Determinations and decisions required to be made under this
    chapter by the head of an agency may be made for an individual
    purchase or contract or, except for determinations and decisions
    under section 2304 or 2305 of this title, for a class of purchases
    or contracts. Such a determination or decision, including a
    determination or decision under section 2304 or 2305 of this title,
    is final.
      "(b) Each determination or decision under section 2306(c),
    2306(g)(1), 2307(c), or 2313(c) of this title shall be based on a
    written finding by the person making the determination or decision,
    which finding shall set out facts and circumstances that - 
        "(1) clearly indicate why the type of contract selected under
      section 2306(c) of this title is likely to be less costly than
      any other type or that it is impracticable to obtain property or
      services of the kind or quality required except under such a
      contract;
        "(2) support the findings required by section 2306(g)(1) of
      this title;
        "(3) clearly indicate why advance payments under section
      2307(c) of this title would be in the public interest; or
        "(4) clearly indicate why the application of section 2313(b) of
      this title to a contract or subcontract with a foreign contractor
      or foreign subcontractor would not be in the public interest.
    Such a finding is final and shall be kept available in the agency
    for at least six years after the date of the determination or
    decision. A copy of the finding shall be submitted to the General
    Accounting Office with each contract to which it applies."
      1985 - Subsec. (a). Pub. L. 99-145 inserted "this" after "2305
    of".
      1984 - Subsec. (a). Pub. L. 98-369, Sec. 2725(1), inserted ",
    except for determinations and decisions under section 2304 or 2305
    of title," and ", including a determination or decision under
    section 2304 or 2305 of this title,".
      Subsec. (b). Pub. L. 98-369, Sec. 2725(2), amended subsec. (b)
    generally, striking out requirement that determinations to
    negotiate contracts be based on written findings by the contracting
    officers making the determinations.
      1968 - Subsec. (b). Pub. L. 90-378 inserted "section 2306
    (g)(1)," after "clauses (11)-(16) of section 2304(a), section
    2306(c),", and "(3) support the findings required by section
    2306(g)(1)," after "kind or quality required except under such a
    contract,", and redesignated former cls. (3) to (5) as (4) to (6),
    respectively.
      1966 - Subsec. (b). Pub. L. 89-607 inserted reference to section
    2313(c), added cl. (4), and redesignated former cl. (4) as (5).
      1962 - Subsec. (b). Pub. L. 87-653 substituted "section 2306(c)"
    for "section 2306", required decisions to negotiate contracts under
    section 2304(a)(2), (7), (8), (10) to (12) of this title to be
    based on a written finding by the person making the decision, which
    findings shall set out facts and circumstances illustrative of
    conditions described in section 2304(a)(11) to (16), indicate why
    the type of contract selected under section 2306(c) is likely to be
    less costly than any other or that its impracticable to obtain the
    required property or services except under such contract, indicate
    why advance payments under section 2307(c) would be in the public
    interest, or establish with respect to section 2304(a), (2), (7),
    (8), (10) to (12) that formal advertising would not have been
    feasible and practicable.
      1958 - Subsec. (b). Pub. L. 85-800 substituted "2307(c)" for
    "2307(a)".

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1984 AMENDMENT                 
      Amendment by Pub. L. 98-369 applicable with respect to any
    solicitation for bids or proposals issued after Mar. 31, 1985, see
    section 2751 of Pub. L. 98-369, set out as a note under section 251
    of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1962 AMENDMENT                 
      For effective date of amendment by Pub. L. 87-653, see section
    1(h) of Pub. L. 87-653, set out as a note under section 2304 of
    this title.

-End-

-CITE-
    10 USC Sec. 2311                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2311. Assignment and delegation of procurement functions and
      responsibilities

-STATUTE-
      (a) In General. - Except to the extent expressly prohibited by
    another provision of law, the head of an agency may delegate,
    subject to his direction, to any other officer or official of that
    agency, any power under this chapter.
      (b) Procurements For or With Other Agencies. - Subject to
    subsection (a), to facilitate the procurement of property and
    services covered by this chapter by each agency named in section
    2303 of this title for any other agency, and to facilitate joint
    procurement by those agencies - 
        (1) the head of an agency may delegate functions and assign
      responsibilities relating to procurement to any officer or
      employee within such agency;
        (2) the heads of two or more agencies may by agreement delegate
      procurement functions and assign procurement responsibilities
      from one agency to another of those agencies or to an officer or
      civilian employee of another of those agencies; and
        (3) the heads of two or more agencies may create joint or
      combined offices to exercise procurement functions and
      responsibilities.

      (c) Approval of Terminations and Reductions of Joint Acquisition
    Programs. - (1) The Secretary of Defense shall prescribe
    regulations that prohibit each military department participating in
    a joint acquisition program approved by the Under Secretary of
    Defense for Acquisition, Technology, and Logistics from terminating
    or substantially reducing its participation in such program without
    the approval of the Under Secretary.
      (2) The regulations shall include the following provisions:
        (A) A requirement that, before any such termination or
      substantial reduction in participation is approved, the proposed
      termination or reduction be reviewed by the Joint Requirements
      Oversight Council of the Department of Defense.
        (B) A provision that authorizes the Under Secretary of Defense
      for Acquisition, Technology, and Logistics to require a military
      department whose participation in a joint acquisition program has
      been approved for termination or substantial reduction to
      continue to provide some or all of the funding necessary for the
      acquisition program to be continued in an efficient manner.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 85-800, Sec. 11,
    Aug. 28, 1958, 72 Stat. 967; Pub. L. 87-653, Sec. 1(g), Sept. 10,
    1962, 76 Stat. 529; Pub. L. 90-378, Sec. 3, July 5, 1968, 82 Stat.
    290; Pub. L. 97-86, title IX, Secs. 907(c), 909(f), Dec. 1, 1981,
    95 Stat. 1117, 1120; Pub. L. 98-369, div. B, title VII, Sec. 2726,
    July 18, 1984, 98 Stat. 1194; Pub. L. 98-525, title XII, Sec. 1214,
    Oct. 19, 1984, 98 Stat. 2592; Pub. L. 98-577, title V, Sec. 505,
    Oct. 30, 1984, 98 Stat. 3087; Pub. L. 103-355, title I, Sec.
    1503(a)(1), Oct. 13, 1994, 108 Stat. 3296; Pub. L. 107-107, div. A,
    title X, Sec. 1048(b)(2), Dec. 28, 2001, 115 Stat. 1225.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2311         41:156(a) (less 1st           Feb. 19, 1948, ch. 65,   
                  sentence).                    Sec. 7(a) (less 1st     
                                                sentence), (b), 62 Stat.
                                                24.                     
                 41:156(b).                                             
    --------------------------------------------------------------------

      The words "in his discretion and" and "including the making of
    such determinations and decisions" are omitted as surplusage. The
    words "except the power to make determinations and decisions" are
    substituted for the words "Except as provided in subsection (b) of
    this section" and "The power of the agency head to make the
    determinations or decisions specified in paragraphs (12)-(16) of
    section 151(c) of this title and in section 154(a) of this title
    shall not be delegable".

                             PRIOR PROVISIONS                         
      Provisions similar to those in this section were contained in
    section 2308 of this title prior to repeal by Pub. L. 103-355, Sec.
    1503(b)(1).

                                AMENDMENTS                            
      2001 - Subsec. (c)(1), (2)(B). Pub. L. 107-107 substituted "Under
    Secretary of Defense for Acquisition, Technology, and Logistics"
    for "Under Secretary of Defense for Acquisition and Technology".
      1994 - Pub. L. 103-355 substituted "Assignment and delegation of
    procurement functions and responsibilities" for "Delegation" as
    section catchline and amended text generally. Prior to amendment,
    text read as follows: "Except as provided in section 2304(d)(2) of
    this title, the head of an agency may delegate, subject to his
    direction, to any other officer or official of that agency, any
    power under this chapter."
      1984 - Pub. L. 98-577 struck out "(a)" before "Except as provided
    in" and struck out subsec. (b) which related to delegation of
    authority by heads of procuring activities of agencies of certain
    functions.
      Pub. L. 98-525 designated existing provisions as subsec. (a) and
    added subsec. (b).
      Pub. L. 98-369 inserted provision relating to the exception
    provided in section 2304(d)(2) of this title and struck out
    provision that the power to make determinations and decisions under
    cls. (11)-(16) of section 2304(a) of this title could not be
    delegated, but that the power to make a determination or decision
    under section 2304(a)(11) of this title could be delegated to any
    other officer of official of that agency who was responsible for
    procurement, and only for contracts requiring the expenditure of
    not more than $5,000,000.
      1981 - Pub. L. 97-86 struck out in first sentence cl. (1)
    designation and cl. (2) relating to authorizing of contracts in
    excess of three years under section 2306(g) of this title, and in
    second sentence substituted "$5,000,000" for "$100,000".
      1968 - Pub. L. 90-378 designated provisions after "the power to
    make determinations and decisions" as cl. (1) and added cl. (2).
      1962 - Pub. L. 87-653 substituted "delegated to any other
    officer" for "delegated only to a chief officer" and "$100,000" for
    "$25,000".
      1958 - Pub. L. 85-800 struck out ", or section 2307(a)" after "of
    section 2304(a)" in first sentence.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1984 AMENDMENT                 
      Amendment by Pub. L. 98-369 applicable with respect to any
    solicitation for bids or proposals issued after Mar. 31, 1985, see
    section 2751 of Pub. L. 98-369, set out as a note under section 251
    of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1962 AMENDMENT                 
      For effective date of amendment by Pub. L. 87-653, see section
    1(h) of Pub. L. 87-653, set out as a note under section 2304 of
    this title.

-End-

-CITE-
    10 USC Sec. 2312                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2312. Remission of liquidated damages

-STATUTE-
      Upon the recommendation of the head of an agency, the Secretary
    of the Treasury may remit all or part, as he considers just and
    equitable, of any liquidated damages assessed for delay in
    performing a contract, made by that agency, that provides for such
    damages.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 104-316, title II,
    Sec. 202(c), Oct. 19, 1996, 110 Stat. 3842.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2312         41:155.                       Feb. 19, 1948, ch. 65,   
                                                Sec. 6, 62 Stat. 24.    
    --------------------------------------------------------------------

      The words "a contract, made by that agency, that provides for"
    are substituted for the words "any contract made on behalf of the
    Government by the agency head or by officers authorized by him so
    to do includes a provision".

                                AMENDMENTS                            
      1996 - Pub. L. 104-316 substituted "Secretary of the Treasury"
    for "Comptroller General".

-End-

-CITE-
    10 USC Sec. 2313                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2313. Examination of records of contractor

-STATUTE-
      (a) Agency Authority. - (1) The head of an agency, acting through
    an authorized representative, is authorized to inspect the plant
    and audit the records of - 
        (A) a contractor performing a cost-reimbursement, incentive,
      time-and-materials, labor-hour, or price-redeterminable contract,
      or any combination of such contracts, made by that agency under
      this chapter; and
        (B) a subcontractor performing any cost-reimbursement,
      incentive, time-and-materials, labor-hour, or price-
      redeterminable subcontract or any combination of such
      subcontracts under a contract referred to in subparagraph (A).

      (2) The head of an agency, acting through an authorized
    representative, is authorized, for the purpose of evaluating the
    accuracy, completeness, and currency of certified cost or pricing
    data required to be submitted pursuant to section 2306a of this
    title with respect to a contract or subcontract, to examine all
    records of the contractor or subcontractor related to - 
        (A) the proposal for the contract or subcontract;
        (B) the discussions conducted on the proposal;
        (C) pricing of the contract or subcontract; or
        (D) performance of the contract or subcontract.

      (b) DCAA Subpoena Authority. - (1) The Director of the Defense
    Contract Audit Agency (or any successor agency) may require by
    subpoena the production of any records of a contractor that the
    Secretary of Defense is authorized to audit or examine under
    subsection (a).
      (2) Any such subpoena, in the case of contumacy or refusal to
    obey, shall be enforceable by order of an appropriate United States
    district court.
      (3) The authority provided by paragraph (1) may not be
    redelegated.
      (c) Comptroller General Authority. - (1) Except as provided in
    paragraph (2), each contract awarded after using procedures other
    than sealed bid procedures shall provide that the Comptroller
    General and his representatives are authorized to examine any
    records of the contractor, or any of its subcontractors, that
    directly pertain to, and involve transactions relating to, the
    contract or subcontract.
      (2) Paragraph (1) does not apply to a contract or subcontract
    with a foreign contractor or foreign subcontractor if the head of
    the agency concerned determines, with the concurrence of the
    Comptroller General or his designee, that the application of that
    paragraph to the contract or subcontract would not be in the public
    interest. However, the concurrence of the Comptroller General or
    his designee is not required - 
        (A) where the contractor or subcontractor is a foreign
      government or agency thereof or is precluded by the laws of the
      country involved from making its records available for
      examination; and
        (B) where the head of the 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) Paragraph (1) may not be construed to require a contractor or
    subcontractor to create or maintain any record that the contractor
    or subcontractor does not maintain in the ordinary course of
    business or pursuant to another provision of law.
      (d) Limitation on Audits Relating to Indirect Costs. - The head
    of an agency may not perform an audit of indirect costs under a
    contract, subcontract, or modification before or after entering
    into the contract, subcontract, or modification in any case in
    which the contracting officer determines that the objectives of the
    audit can reasonably be met by accepting the results of an audit
    that was conducted by any other department or agency of the Federal
    Government within one year preceding the date of the contracting
    officer's determination.
      (e) Limitation. - The authority of the head of an agency under
    subsection (a), and the authority of the Comptroller General under
    subsection (c), with respect to a contract or subcontract shall
    expire three years after final payment under such contract or
    subcontract.
      (f) Inapplicability to Certain Contracts. - This section does not
    apply to the following contracts:
        (1) Contracts for utility services at rates not exceeding those
      established to apply uniformly to the public, plus any applicable
      reasonable connection charge.
        (2) A contract or subcontract that is for an amount not greater
      than the simplified acquisition threshold.

      (g) Forms of Original Record Storage. - Nothing in this section
    shall be construed to preclude a contractor from duplicating or
    storing original records in electronic form.
      (h) Use of Images of Original Records. - The head of an agency
    shall not require a contractor or subcontractor to provide original
    records in an audit carried out pursuant to this section if the
    contractor or subcontractor provides photographic or electronic
    images of the original records and meets the following
    requirements:
        (1) The contractor or subcontractor has established procedures
      to ensure that the imaging process preserves the integrity,
      reliability, and security of the original records.
        (2) The contractor or subcontractor maintains an effective
      indexing system to permit timely and convenient access to the
      imaged records.
        (3) The contractor or subcontractor retains the original
      records for a minimum of one year after imaging to permit
      periodic validation of the imaging systems.

      (i) Records Defined. - In this section, the term "records"
    includes books, documents, accounting procedures and practices, and
    other data, regardless of type and regardless of whether such items
    are in written form, in the form of computer data, or in any other
    form.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 132; Pub. L. 89-607, Sec. 1(2),
    Sept. 27, 1966, 80 Stat. 850; Pub. L. 98-369, div. B, title VII,
    Sec. 2727(c), July 18, 1984, 98 Stat. 1195; Pub. L. 99-145, title
    IX, Sec. 935, Nov. 8, 1985, 99 Stat. 700; Pub. L. 100-26, Sec.
    7(g)(1), Apr. 21, 1987, 101 Stat. 282; Pub. L. 101-510, div. A,
    title XIII, Sec. 1301(9), Nov. 5, 1990, 104 Stat. 1668; Pub. L. 103-
    355, title II, Sec. 2201(a)(1), title IV, Sec. 4102(c), Oct. 13,
    1994, 108 Stat. 3316, 3340; Pub. L. 104-106, div. A, title XV, Sec.
    1502(a)(1), Feb. 10, 1996, 110 Stat. 502; Pub. L. 104-201, div. A,
    title VIII, Sec. 808(a), Sept. 23, 1996, 110 Stat. 2607; Pub. L.
    106-65, div. A, title X, Sec. 1032(a)(2), Oct. 5, 1999, 113 Stat.
    751.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2313(a)      41:153(b) (words after        Feb. 19, 1948, ch. 65,   
                  semicolon of last             Sec. 4(b) (words after  
                  sentence).                    semicolon of last       
                                                sentence), 62 Stat. 23. 
    2313(b)      41:153(c).                    Feb. 19, 1948, ch. 65,   
                                                Sec. 4(c); added Oct.   
                                                31, 1951, ch. 652 (as   
                                                applicable to Sec. 4(c);
                                                of the Act of Feb. 19,  
                                                1948, ch. 65), 65 Stat. 
                                                700.                    
    --------------------------------------------------------------------

      In subsection (a), the words "An agency named in section 2303 of
    this title" are substituted for the words "a procuring agency". The
    words "made by that agency under this chapter" are inserted for
    clarity.
      In subsection (b), the word "under" is substituted for the words
    "pursuant to authority contained in". The word "provide" is
    substituted for the words "include a clause to the effect". The
    words "are entitled" are substituted for the words "shall * * *
    have * * * the right". The words "of the United States", "duly
    authorized", "have access to and", and "engaged in the performance
    of" are omitted as surplusage.

                                AMENDMENTS                            
      1999 - Subsec. (b)(4). Pub. L. 106-65 struck out par. (4) which
    read as follows: "The Director (or any successor official) shall
    submit an annual report to the Secretary of Defense on the exercise
    of such authority during the preceding year and the reasons why
    such authority was exercised in any instance. The Secretary shall
    forward a copy of each such report to the Committee on Armed
    Services of the Senate and the Committee on National Security of
    the House of Representatives."
      1996 - Subsec. (b)(4). Pub. L. 104-106 substituted "Committee on
    Armed Services of the Senate and the Committee on National Security
    of the House of Representatives" for "Committees on Armed Services
    of the Senate and House of Representatives".
      Subsec. (d). Pub. L. 104-201 amended subsec. (d) generally. Prior
    to amendment, subsec. (d) read as follows: "Limitation on Preaward
    Audits Relating to Indirect Costs. - The head of an agency may not
    perform a preaward audit to evaluate proposed indirect costs under
    any contract, subcontract, or modification to be entered into in
    accordance with this chapter in any case in which the contracting
    officer determines that the objectives of the audit can reasonably
    be met by accepting the results of an audit conducted by any other
    department or agency of the Federal Government within one year
    preceding the date of the contracting officer's determination."
      1994 - Pub. L. 103-355, Sec. 2201(a)(1), amended section
    generally, striking out "of books" before "and records" in section
    catchline, and substituting subsecs. (a) to (i) for former subsecs.
    (a) to (d).
      Subsec. (f)(2). Pub. L. 103-355, Sec. 4102(c), added par. (2).
      1990 - Subsec. (c). Pub. L. 101-510 struck out after cl. (2) "If
    subsection (b) is not applied to a contract or subcontract based on
    a determination under clause (2), a written report shall be
    furnished to the Congress."
      1987 - Subsec. (d)(1). Pub. L. 100-26 substituted "section 2306a"
    for "section 2306(f)".
      1985 - Subsec. (d). Pub. L. 99-145 added subsec. (d).
      1984 - Subsec. (b). Pub. L. 98-369 substituted "awarded after
    using procedures other than sealed bid procedures" for "negotiated
    under this chapter".
      1966 - Subsec. (b). Pub. L. 89-607, Sec. 1(2)(A), substituted
    "Except as provided in subsection (c), each" for "Each".
      Subsec. (c). Pub. L. 89-607, Sec. 1(2)(B), added subsec. (c).

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1984 AMENDMENT                 
      Amendment by Pub. L. 98-369 applicable with respect to any
    solicitation for bids or proposals issued after Mar. 31, 1985, see
    section 2751 of Pub. L. 98-369, set out as a note under section 251
    of Title 41, Public Contracts.

                          EXEMPTION OF FUNCTIONS                      
      Functions with respect to purchases authorized to be made outside
    limits of United States or District of Columbia under Foreign
    Assistance Act of 1961, as amended, as exempt, see Ex. Ord. No.
    11223, May 12, 1965, 30 F.R. 6635, set out as a note under section
    2393 of Title 22, Foreign Relations and Intercourse.

                            FOREIGN CONTRACTORS                        
      Secretaries of Defense, Army, Navy, or Air Force, or their
    designees, to determine, prior to exercising authority provided in
    amendment of this section by Pub. L. 89-607 to exempt certain
    contracts with foreign contractors from requirement of an
    examination-of-records clause, that all reasonable efforts have
    been made to include such examination-of-records clause, as
    required by par. (11) of Part I of Ex. Ord. No. 10789, and that
    alternate sources of supply are not reasonably available, see par.
    (11) of Part I of Ex. Ord. No. 10789, Nov. 14, 1958, 23 F.R. 8897,
    as amended, set out as a note under section 1431 of Title 50, War
    and National Defense.

-End-

-CITE-
    10 USC Sec. 2314                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2314. Laws inapplicable to agencies named in section 2303 of
      this title

-STATUTE-
      Sections 3709 and 3735 of the Revised Statutes (41 U.S.C. 5 and
    13) do not apply to the procurement or sale of property or services
    by the agencies named in section 2303 of this title.

-SOURCE-
    (Aug. 10, 1956, ch. 1041, 70A Stat. 133; Pub. L. 96-513, title V,
    Sec. 511(78), Dec. 12, 1980, 94 Stat. 2927; Pub. L. 103-160, div.
    A, title VIII, Sec. 822(b)(2), Nov. 30, 1993, 107 Stat. 1706.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2314         41:160.                       Feb. 19, 1948, ch. 65,   
                                                Sec. 11(b), 62 Stat. 25.
    --------------------------------------------------------------------

                                AMENDMENTS                            
      1993 - Pub. L. 103-160 inserted "or sale" after "procurement".
      1980 - Pub. L. 96-513 substituted "Sections 3709 and 3735 of the
    Revised Statutes (41 U.S.C. 5 and 13)" for "Sections 5, 6, 6a, and
    13 of title 41".

                     EFFECTIVE DATE OF 1980 AMENDMENT                 
      Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section
    701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of
    this title.

-End-

-CITE-
    10 USC Sec. 2315                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2315. Law inapplicable to the procurement of automatic data
      processing equipment and services for certain defense purposes

-STATUTE-
      For purposes of subtitle III of title 40, the term "national
    security system", with respect to a telecommunications and
    information system operated by the Department of Defense, has the
    meaning given that term by section 3542(b)(2) of title 44.

-SOURCE-
    (Added Pub. L. 97-86, title IX, Sec. 908(a)(1), Dec. 1, 1981, 95
    Stat. 1117; amended Pub. L. 97-295, Sec. 1(25), Oct. 12, 1982, 96
    Stat. 1291; Pub. L. 104-106, div. E, title LVI, Sec. 5601(c), Feb.
    10, 1996, 110 Stat. 699; Pub. L. 104-201, div. A, title X, Sec.
    1074(b)(4)(B), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 105-85, div.
    A, title X, Sec. 1073(a)(49), Nov. 18, 1997, 111 Stat. 1903; Pub.
    L. 107-217, Sec. 3(b)(5), Aug. 21, 2002, 116 Stat. 1295; Pub. L.
    109-364, div. A, title IX, Sec. 906(c), Oct. 17, 2006, 120 Stat.
    2354.)

-MISC1-
                                AMENDMENTS                            
      2006 - Pub. L. 109-364 amended text generally. Prior to
    amendment, section consisted of subsecs. (a) and (b) defining
    "national security systems" as meaning telecommunications and
    information systems operated by the Department of Defense, the
    functions, operation or use of which involves intelligence or
    cryptologic activities, command and control of military forces, or
    equipment that is an integral part of a weapons system or is
    critical to military or intelligence missions but is not equipment
    or services to be used for routine administrative and business
    applications.
      2002 - Subsec. (a). Pub. L. 107-217 substituted "subtitle III of
    title 40" for "division E of the Clinger-Cohen Act of 1996 (40
    U.S.C. 1401 et seq.)" in introductory provisions.
      1997 - Subsec. (a). Pub. L. 105-85 substituted "division E of the
    Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.)" for "the
    Information Technology Management Reform Act of 1996".
      1996 - Subsec. (a). Pub. L. 104-106, as amended by Pub. L. 104-
    201, substituted "For the purposes of the Information Technology
    Management Reform Act of 1996, the term 'national security systems'
    means those telecommunications and information systems operated by
    the Department of Defense, the functions, operation or use of
    which" for "Section 111 of the Federal Property and Administrative
    Services Act of 1949 (40 U.S.C. 759) is not applicable to the
    procurement by the Department of Defense of automatic data
    processing equipment or services if the function, operation, or use
    of the equipment or services".
      1982 - Subsec. (a). Pub. L. 97-295 substituted "(40 U.S.C. 759)"
    for "(40 U.S.C. 795)".

                     EFFECTIVE DATE OF 1996 AMENDMENT                 
      Amendment by Pub. L. 104-106 effective 180 days after Feb. 10,
    1996, see section 5701 of Pub. L. 104-106, Feb. 10, 1996, 110 Stat.
    702.

                              EFFECTIVE DATE                          
      Section 908(b) of Pub. L. 97-86 provided that: "Section 2315 of
    title 10, United States Code, as added by subsection (a), does not
    apply to a contract made before the date of the enactment of this
    Act [Dec. 1, 1981]."

           LIMITATION REGARDING TELECOMMUNICATIONS REQUIREMENTS       
      Pub. L. 103-337, div. A, title X, Sec. 1075, Oct. 5, 1994, 108
    Stat. 2861, provided that:
      "(a) Limitation. - No funds available to the Department of
    Defense or any other Executive agency may be expended to provide
    for meeting Department of Defense telecommunications requirements
    through the telecommunications procurement known as 'FTS-2000' or
    through any other Government-wide telecommunications procurement
    until - 
        "(1) the Secretary of Defense submits to the Congress a report
      containing - 
          "(A) a certification by the Secretary that the FTS-2000
        procurement or the other telecommunications procurement will
        provide assured, secure telecommunications support (including
        associated telecommunications services) for Department of
        Defense activities; and
          "(B) a description of how the procurement will be implemented
        and managed to meet defense information infrastructure
        requirements, including requirements to support deployed forces
        and intelligence activities; and
        "(2) 30 days elapse after the date on which such report is
      received by the committees.
      "(b) Definitions. - In this section:
        "(1) The term 'defense telecommunications requirements' means
      requirements for telecommunications equipment and services that,
      if procured by the Department of Defense, would be exempt from
      the requirements of section 111 of the Federal Property and
      Administrative Services Act of 1949 ([former] 40 U.S.C. 759)
      pursuant to section 2315 of title 10, United States Code.
        "(2) The term 'Executive agency' has the meaning given such
      term in section 105 of title 5, United States Code.
        "(3) The term 'procurement' has the meaning given such term in
      section 4 of the Office of Federal Procurement Policy Act (41
      U.S.C. 403).
      "(c) Effect on Other Law. - Nothing in this section may be
    construed as modifying or superseding, or as intended to impair or
    restrict authorities or responsibilities under - 
        "(1) section 111 of the Federal Property and Administrative
      Services Act of 1949 ([former] 40 U.S.C. 759); or
        "(2) section 620 of Public Law 103-123 [107 Stat. 1264]."

-End-

-CITE-
    10 USC Sec. 2316                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2316. Disclosure of identity of contractor

-STATUTE-
      The Secretary of Defense may disclose the identity or location of
    a person awarded a contract by the Department of Defense to any
    individual, including a Member of Congress, only after the
    Secretary makes a public announcement identifying the contractor.
    When the identity of a contractor is to be made public, the
    Secretary shall announce publicly that the contract has been
    awarded and the identity of the contractor.

-SOURCE-
    (Added Pub. L. 97-295, Sec. 1(26)(A), Oct. 12, 1982, 96 Stat.
    1291.)

-MISC1-

                       HISTORICAL AND REVISION NOTES                   
    --------------------------------------------------------------------
     Revised         Source (U.S. Code)           Source (Statutes at   
     section                                             Large)         
    --------------------------------------------------------------------
    2316         10:2304 (note).               Oct. 7, 1970, Pub. L.    
                                                91-441, Sec. 507, 84    
                                                Stat. 913.              
    --------------------------------------------------------------------

      The words "company, or corporation" are omitted as included in
    "person" because of section 1:1. The words "On and after the date
    of enactment of this Act" are omitted as executed. The word
    "contractor" is substituted for "person, company, or corporation to
    whom such contract has been awarded" and "person, company, or
    corporation to whom any defense contract has been awarded" to
    eliminate unnecessary words. The words "and the identity of the
    contractor" are substituted for "and to whom it was awarded" for
    clarity.

-End-

-CITE-
    10 USC Sec. 2317                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2317. Repealed.

-MISC1-
    [Sec. 2317. Repealed. Pub. L. 103-160, div. A, title VIII, Sec.
      821(a)(2), Nov. 30, 1993, 107 Stat. 1704].
      Section, added Pub. L. 98-525, title XII, Sec. 1215, Oct. 19,
    1984, 98 Stat. 2592, related to encouragement of competition and
    cost savings.

-End-

-CITE-
    10 USC Sec. 2318                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2318. Advocates for competition

-STATUTE-
      (a)(1) In addition to the advocates for competition established
    or designated pursuant to section 20(a) of the Office of Federal
    Procurement Policy Act (41 U.S.C. 418(a)), the Secretary of Defense
    shall designate an officer or employee of the Defense Logistics
    Agency to serve as the advocate for competition of the agency.
      (2) The advocate for competition of the Defense Logistics Agency
    shall carry out the responsibilities and functions provided for in
    sections 20(b) and 20(c) of the Office of Federal Procurement
    Policy Act (41 U.S.C. 418(b), (c)).
      (b) Each advocate for competition of an agency named in section
    2303(a) of this title shall be a general or flag officer if a
    member of the armed forces or a grade GS-16 or above under the
    General Schedule (or in a comparable or higher position under
    another schedule), if a civilian employee and shall be designated
    to serve for a minimum of two years.

-SOURCE-
    (Added Pub. L. 98-525, title XII, Sec. 1216(a), Oct. 19, 1984, 98
    Stat. 2593; amended Pub. L. 100-26, Sec. 7(d)(4), Apr. 21, 1987,
    101 Stat. 281; Pub. L. 102-25, title VII, Sec. 701(f)(1), Apr. 6,
    1991, 105 Stat. 115; Pub. L. 103-355, title I, Sec. 1031, Oct. 13,
    1994, 108 Stat. 3260.)

-MISC1-
                                AMENDMENTS                            
      1994 - Subsec. (c). Pub. L. 103-355 struck out subsec. (c) which
    read as follows: "Each advocate for competition of an agency of the
    Department of Defense shall transmit to the Secretary of Defense a
    report describing his activities during the preceding year. The
    report of each advocate for competition shall be included in the
    annual report of the Secretary of Defense required by section 23 of
    the Office of Federal Procurement Policy Act (41 U.S.C. 419), in
    the form in which it was submitted to the Secretary."
      1991 - Subsec. (c). Pub. L. 102-25 substituted "section 23" for
    "section 21".
      1987 - Subsec. (a)(1). Pub. L. 100-26, Sec. 7(d)(4)(A), inserted
    "(41 U.S.C. 418(a))" after "Policy Act".
      Subsec. (a)(2). Pub. L. 100-26, Sec. 7(d)(4)(B), inserted "(41
    U.S.C. 418(b), (c))" after "Policy Act".
      Subsec. (c). Pub. L. 100-26, Sec. 7(d)(4)(C), inserted "(41
    U.S.C. 419)" after "Policy Act".

                              EFFECTIVE DATE                          
      Section 1216(c)(1) of Pub. L. 98-525 provided that: "Section 2318
    of title 10, United States Code (as added by subsection (a)), shall
    take effect on April 1, 1985."

          REFERENCES IN OTHER LAWS TO GS-16, 17, OR 18 PAY RATES      
      References in laws to the rates of pay for GS-16, 17, or 18, or
    to maximum rates of pay under the General Schedule, to be
    considered references to rates payable under specified sections of
    Title 5, Government Organization and Employees, see section 529
    [title I, Sec. 101(c)(1)] of Pub. L. 101-509, set out in a note
    under section 5376 of Title 5.

-End-

-CITE-
    10 USC Sec. 2319                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2319. Encouragement of new competitors

-STATUTE-
      (a) In this section, the term "qualification requirement" means a
    requirement for testing or other quality assurance demonstration
    that must be completed by an offeror before award of a contract.
      (b) Except as provided in subsection (c), the head of the agency
    shall, before establishing a qualification requirement - 
        (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 upon request all requirements which a prospective
      offeror, or its product, must satisfy in order to become
      qualified, such 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 costs of testing and evaluation
      likely to be incurred by a potential offeror in order to become
      qualified;
        (4) ensure that a potential offeror is provided, upon request
      and on a reimbursable basis, a prompt opportunity to demonstrate
      its ability to meet the standards specified for qualification
      using qualified personnel and facilities of the agency concerned
      or of another agency obtained through interagency agreement, or
      under contract, or 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 clause (4), provide to
      the extent possible that such services be provided by a
      contractor who is not expected to benefit from an absence of
      additional qualified sources and who shall be required in such
      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 as to whether qualification is attained and, in
      the event qualification is not attained, is promptly furnished
      specific information why qualification was not attained.

      (c)(1) Subsection (b) of this section does not apply with respect
    to a qualification requirement established by statute or
    administrative action before October 19, 1984, unless such
    requirement is a qualified products list.
      (2)(A) Except as provided in subparagraph (B), if it is
    unreasonable to specify the standards for qualification which a
    prospective offeror or its product must satisfy, a determination to
    that effect shall be submitted to the advocate for competition of
    the procuring activity responsible for the purchase of the item
    subject to the qualification requirement. After considering any
    comments of the advocate for competition reviewing such
    determination, the head of the purchasing office may waive the
    requirements of clauses (2) through (6) of subsection (b) for up to
    two years with respect to the item subject to the qualification
    requirement.
      (B) The waiver authority provided in this paragraph does not
    apply with respect to a qualified products list.
      (3) A potential offeror may not be denied the opportunity to
    submit and have considered an offer for a contract solely because
    the potential offeror (A) is not on a qualified bidders list,
    qualified manufacturers list, or qualified products list, or (B)
    has not been identified as meeting a qualification requirement
    established after October 19, 1984, if the potential offeror can
    demonstrate to the satisfaction of the contracting officer (or, in
    the case of a contract for the procurement of an aviation critical
    safety item or ship critical safety item, the head of the design
    control activity for such item) that the potential offeror or its
    product meets the standards established for qualification or can
    meet such standards before the date specified for award of the
    contract.
      (4) Nothing contained in this subsection requires the referral of
    an offer to the Small Business Administration pursuant to section
    8(b)(7) of the Small Business Act (15 U.S.C. 637(b)(7)) if the
    basis for the referral is a challenge by the offeror to either the
    validity of the qualification requirement or the offeror's
    compliance with such requirement.
      (5) The head of an agency need not delay a proposed procurement
    in order to comply with subsection (b) or in order to provide a
    potential offeror with an opportunity to demonstrate its ability to
    meet the standards specified for qualification.
      (6) The requirements of subsection (b) also apply before
    enforcement of any qualified products list, qualified manufacturers
    list, or qualified bidders list.
      (d)(1) If the number of qualified sources or qualified products
    available to compete actively for an anticipated future requirement
    is fewer than two actual manufacturers or the products of two
    actual manufacturers, respectively, the head of the agency
    concerned shall - 
        (A) periodically publish notice in the Commerce Business Daily
      soliciting additional sources or products to seek qualification,
      unless the contracting officer determines that such publication
      would compromise national security; and
        (B) bear the cost of conducting the specified testing and
      evaluation (excluding the costs 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 which has
      met the standards specified for qualification and which could
      reasonably be expected to compete for a contract for that
      requirement, but such costs may be borne only if the head of the
      agency determines that such additional qualified sources or
      products are likely to result in cost savings from increased
      competition for future requirements sufficient to amortize the
      costs incurred by the agency within a reasonable period of time
      considering the duration and dollar value of anticipated future
      requirements.

      (2) The head of an agency shall require a prospective contractor
    requesting the United States to bear testing and evaluation costs
    under paragraph (1)(B) to certify as to its status as a small
    business concern under section 3 of the Small Business Act (15
    U.S.C. 632).
      (e) Within seven years after the establishment of a qualification
    requirement under subsection (b) or within seven years following an
    agency's enforcement of a qualified products list, qualified
    manufacturers list, or qualified bidders list, any such
    qualification requirement shall be examined and revalidated in
    accordance with the requirements of subsection (b). The preceding
    sentence does not apply in the case of a qualification requirement
    for which a waiver is in effect under subsection (c)(2).
      (f) Except in an emergency as determined by the head of the
    agency, whenever the head of the agency determines not to enforce a
    qualification requirement for a solicitation, the agency may not
    thereafter enforce that qualification requirement unless the agency
    complies with the requirements of subsection (b).
      (g) Definitions. - In this section:
        (1) The term "aviation critical safety item" means a part, an
      assembly, installation equipment, launch equipment, recovery
      equipment, or support equipment for an aircraft or aviation
      weapon system if the part, assembly, or equipment contains a
      characteristic any failure, malfunction, or absence of which
      could cause a catastrophic or critical failure resulting in the
      loss of or serious damage to the aircraft or weapon system, an
      unacceptable risk of personal injury or loss of life, or an
      uncommanded engine shutdown that jeopardizes safety.
        (2) The term "ship critical safety item" means any ship part,
      assembly, or support equipment containing a characteristic the
      failure, malfunction, or absence of which could cause a
      catastrophic or critical failure resulting in loss of or serious
      damage to the ship or unacceptable risk of personal injury or
      loss of life.
        (3) The term "design control activity", with respect to an
      aviation critical safety item or ship critical safety item, means
      the systems command of a military department that is specifically
      responsible for ensuring the airworthiness of an aviation system
      or equipment, or the seaworthiness of a ship or ship equipment,
      in which such item is to be used.

-SOURCE-
    (Added Pub. L. 98-525, title XII, Sec. 1216(a), Oct. 19, 1984, 98
    Stat. 2593; amended Pub. L. 100-26, Sec. 7(d)(5), (i)(4), (k)(3),
    Apr. 21, 1987, 101 Stat. 281, 282, 284; Pub. L. 108-136, div. A,
    title VIII, Sec. 802(d), Nov. 24, 2003, 117 Stat. 1541; Pub. L. 109-
    364, div. A, title I, Sec. 130(d), Oct. 17, 2006, 120 Stat. 2110.)

-MISC1-
                                AMENDMENTS                            
      2006 - Subsec. (c)(3). Pub. L. 109-364, Sec. 130(d)(1), inserted
    "or ship critical safety item" after "aviation critical safety
    item".
      Subsec. (g)(2), (3). Pub. L. 109-364, Sec. 130(d)(2), added par.
    (2), redesignated former par. (2) as (3), inserted "or ship
    critical safety item" after "aviation critical safety item" and ",
    or the seaworthiness of a ship or ship equipment," after "or
    equipment", and substituted "such item" for "the item".
      2003 - Subsec. (c)(3). Pub. L. 108-136, Sec. 802(d)(1), inserted
    "(or, in the case of a contract for the procurement of an aviation
    critical safety item, the head of the design control activity for
    such item)" after "the contracting officer".
      Subsec. (g). Pub. L. 108-136, Sec. 802(d)(2), added subsec. (g).
      1987 - Subsec. (a). Pub. L. 100-26, Sec. 7(k)(3), inserted "the
    term" after "In this section,".
      Subsec. (c)(1), (3). Pub. L. 100-26, Sec. 7(i)(4), substituted
    "October 19, 1984," for "the date of the enactment of the Defense
    Procurement Reform Act of 1984".
      Subsec. (c)(4). Pub. L. 100-26, Sec. 7(d)(5)(A), inserted "(15
    U.S.C. 637(b)(7))" after "Small Business Act".
      Subsec. (d)(2). Pub. L. 100-26, Sec. 7(d)(5)(B), inserted "(15
    U.S.C. 632)" after "Small Business Act".

                              EFFECTIVE DATE                          
      Section 1216(c)(2) of Pub. L. 98-525 provided that: "Sections
    2319, 2320, and 2321 of title 10, United States Code (as added by
    subsection (a)), shall apply with respect to solicitations issued
    after the end of the one-year period beginning on the date of the
    enactment of this Act [Oct. 19, 1984]."

-End-

-CITE-
    10 USC Sec. 2320                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2320. Rights in technical data

-STATUTE-
      (a)(1) The Secretary of Defense shall prescribe regulations to
    define the legitimate interest of the United States and of a
    contractor or subcontractor in technical data pertaining to an item
    or process. Such regulations shall be included in regulations of
    the Department of Defense prescribed as part of the Federal
    Acquisition Regulation. Such regulations may not impair any right
    of the United States or of any contractor or subcontractor with
    respect to patents or copyrights or any other right in technical
    data otherwise established by law. Such regulations also may not
    impair the right of a contractor or subcontractor to receive from a
    third party a fee or royalty for the use of technical data
    pertaining to an item or process developed exclusively at private
    expense by the contractor or subcontractor, except as otherwise
    specifically provided by law.
      (2) Such regulations shall include the following provisions:
        (A) In the case of an item or process that is developed by a
      contractor or subcontractor exclusively with Federal funds (other
      than an item or process developed under a contract or subcontract
      to which regulations under section 9(j)(2) of the Small Business
      Act (15 U.S.C. 638(j)(2)) apply), the United States shall have
      the unlimited right to - 
          (i) use technical data pertaining to the item or process; or
          (ii) release or disclose the technical data to persons
        outside the government or permit the use of the technical data
        by such persons.

        (B) Except as provided in subparagraphs (C) and (D), in the
      case of an item or process that is developed by a contractor or
      subcontractor exclusively at private expense, the contractor or
      subcontractor may restrict the right of the United States to
      release or disclose technical data pertaining to the item or
      process to persons outside the government or permit the use of
      the technical data by such persons.
        (C) Subparagraph (B) does not apply to technical data that - 
          (i) constitutes a correction or change to data furnished by
        the United States;
          (ii) relates to form, fit, or function;
          (iii) is necessary for operation, maintenance, installation,
        or training (other than detailed manufacturing or process
        data); or
          (iv) is otherwise publicly available or has been released or
        disclosed by the contractor or subcontractor without
        restriction on further release or disclosure.

        (D) Notwithstanding subparagraph (B), the United States may
      release or disclose technical data to persons outside the
      Government, or permit the use of technical data by such persons,
      if - 
          (i) such release, disclosure, or use - 
            (I) is necessary for emergency repair and overhaul; or
            (II) is a release or disclosure of technical data (other
          than detailed manufacturing or process data) to, or use of
          such data by, a foreign government that is in the interest of
          the United States and is required for evaluational or
          informational purposes;

          (ii) such release, disclosure, or use is made subject to a
        prohibition that the person to whom the data is released or
        disclosed may not further release, disclose, or use such data;
        and
          (iii) the contractor or subcontractor asserting the
        restriction is notified of such release, disclosure, or use.

        (E) In the case of an item or process that is developed in part
      with Federal funds and in part at private expense, the respective
      rights of the United States and of the contractor or
      subcontractor in technical data pertaining to such item or
      process shall be established as early in the acquisition process
      as practicable (preferably during contract negotiations) and
      shall be based upon negotiations between the United States and
      the contractor, except in any case in which the Secretary of
      Defense determines, on the basis of criteria established in the
      regulations, that negotiations would not be practicable. The
      establishment of such rights shall be based upon consideration of
      all of the following factors:
          (i) The statement of congressional policy and objectives in
        section 200 of title 35, the statement of purposes in section
        2(b) of the Small Business Innovation Development Act of 1982
        (15 U.S.C. 638 note), and the declaration of policy in section
        2 of the Small Business Act (15 U.S.C. 631).
          (ii) The interest of the United States in increasing
        competition and lowering costs by developing and locating
        alternative sources of supply and manufacture.
          (iii) The interest of the United States in encouraging
        contractors to develop at private expense items for use by the
        Government.
          (iv) Such other factors as the Secretary of Defense may
        prescribe.

        (F) A contractor or subcontractor (or a prospective contractor
      or subcontractor) may not be required, as a condition of being
      responsive to a solicitation or as a condition for the award of a
      contract - 
          (i) to sell or otherwise relinquish to the United States any
        rights in technical data except - 
            (I) rights in technical data described in subparagraph (C);
          or
            (II) under the conditions described in subparagraph (D); or

          (ii) to refrain from offering to use, or from using, an item
        or process to which the contractor is entitled to restrict
        rights in data under subparagraph (B).

        (G) The Secretary of Defense may - 
          (i) negotiate and enter into a contract with a contractor or
        subcontractor for the acquisition of rights in technical data
        not otherwise provided under subparagraph (C) or (D), if
        necessary to develop alternative sources of supply and
        manufacture;
          (ii) agree to restrict rights in technical data otherwise
        accorded to the United States under this section if the United
        States receives a royalty-free license to use, release, or
        disclose the data for purposes of the United States (including
        purposes of competitive procurement); or
          (iii) permit a contractor or subcontractor to license
        directly to a third party the use of technical data which the
        contractor is otherwise allowed to restrict, if necessary to
        develop alternative sources of supply and manufacture.

      (3) The Secretary of Defense shall define the terms "developed",
    "exclusively with Federal funds", and "exclusively at private
    expense" in regulations prescribed under paragraph (1). In defining
    such terms, the Secretary shall specify the manner in which
    indirect costs shall be treated and shall specify that amounts
    spent for independent research and development and bid and proposal
    costs shall not be considered to be Federal funds for the purposes
    of definitions under this paragraph.
      (b) Regulations prescribed under subsection (a) shall require
    that, whenever practicable, a contract for supplies or services
    entered into by an agency named in section 2303 of this title
    contain appropriate provisions relating to technical data,
    including provisions - 
        (1) defining the respective rights of the United States and the
      contractor or subcontractor (at any tier) regarding any technical
      data to be delivered under the contract and providing that, in
      the case of a contract for a commercial item, the item shall be
      presumed to be developed at private expense unless shown
      otherwise in accordance with section 2321(f);
        (2) specifying the technical data, if any, to be delivered
      under the contract and delivery schedules for such delivery;
        (3) establishing or referencing procedures for determining the
      acceptability of technical data to be delivered under the
      contract;
        (4) establishing separate contract line items for the technical
      data, if any, to be delivered under the contract;
        (5) to the maximum practicable extent, identifying, in advance
      of delivery, technical data which is to be delivered with
      restrictions on the right of the United States to use such data;
        (6) requiring the contractor to revise any technical data
      delivered under the contract to reflect engineering design
      changes made during the performance of the contract and affecting
      the form, fit, and function of the items specified in the
      contract and to deliver such revised technical data to an agency
      within a time specified in the contract;
        (7) establishing remedies to be available to the United States
      when technical data required to be delivered or made available
      under the contract is found to be incomplete or inadequate or to
      not satisfy the requirements of the contract concerning technical
      data; and
        (8) authorizing the head of the agency to withhold payments
      under the contract (or exercise such other remedies as the head
      of the agency considers appropriate) during any period if the
      contractor does not meet the requirements of the contract
      pertaining to the delivery of technical data.

      (c) Nothing in this section or in section 2305(d) of this title
    prohibits the Secretary of Defense from - 
        (1) prescribing standards for determining whether a contract
      entered into by the Department of Defense shall provide for a
      time to be specified in the contract after which the United
      States shall have the right to use (or have used) for any purpose
      of the United States all technical data required to be delivered
      to the United States under the contract or providing for such a
      period of time (not to exceed 7 years) as a negotiation
      objective; or
        (2) prescribing reasonable and flexible guidelines, including
      negotiation objectives, for the conduct of negotiations regarding
      the respective rights in technical data of the United States and
      the contractor.

      (d) The Secretary of Defense shall by regulation establish
    programs which provide domestic business concerns an opportunity to
    purchase or borrow replenishment parts from the United States for
    the purpose of design replication or modification, to be used by
    such concerns in the submission of subsequent offers to sell the
    same or like parts to the United States. Nothing in this subsection
    limits the authority of the head of an agency to impose
    restrictions on such a program related to national security
    considerations, inventory needs of the United States, the
    improbability of future purchases of the same or like parts, or any
    additional restriction otherwise required by law.
      (e) The Secretary of Defense shall require program managers for
    major weapon systems and subsystems of major weapon systems to
    assess the long-term technical data needs of such systems and
    subsystems and establish corresponding acquisition strategies that
    provide for technical data rights needed to sustain such systems
    and subsystems over their life cycle. Such strategies may include
    the development of maintenance capabilities within the Department
    of Defense or competition for contracts for sustainment of such
    systems or subsystems. Assessments and corresponding acquisition
    strategies developed under this section with respect to a weapon
    system or subsystem shall - 
        (1) be developed before issuance of a contract solicitation for
      the weapon system or subsystem;
        (2) address the merits of including a priced contract option
      for the future delivery of technical data that were not acquired
      upon initial contract award;
        (3) address the potential for changes in the sustainment plan
      over the life cycle of the weapon system or subsystem; and
        (4) apply to weapon systems and subsystems that are to be
      supported by performance-based logistics arrangements as well as
      to weapons systems and subsystems that are to be supported by
      other sustainment approaches.

-SOURCE-
    (Added Pub. L. 98-525, title XII, Sec. 1216(a), Oct. 19, 1984, 98
    Stat. 2595; amended Pub. L. 98-577, title III, Sec. 301(b), Oct.
    30, 1984, 98 Stat. 3076; Pub. L. 99-145, title IX, Sec. 961(d)(1),
    Nov. 8, 1985, 99 Stat. 703; Pub. L. 99-500, Sec. 101(c) [title X,
    Sec. 953(a)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-169, and Pub.
    L. 99-591, Sec. 101(c) [title X, Sec. 953(a)], Oct. 30, 1986, 100
    Stat. 3341-82, 3341-169; Pub. L. 99-661, div. A, title IX, formerly
    title IV, Sec. 953(a), Nov. 14, 1986, 100 Stat. 3949, renumbered
    title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273;
    Pub. L. 100-26, Sec. 7(a)(4), Apr. 21, 1987, 101 Stat. 275; Pub. L.
    100-180, div. A, title VIII, Sec. 808(a), (b), Dec. 4, 1987, 101
    Stat. 1128, 1130; Pub. L. 101-189, div. A, title VIII, Sec.
    853(b)(2), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 103-355, title
    VIII, Sec. 8106(a), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 108-136,
    div. A, title VIII, Sec. 844, Nov. 24, 2003, 117 Stat. 1553; Pub.
    L. 109-364, div. A, title VIII, Sec. 802(a), Oct. 17, 2006, 120
    Stat. 2312.)

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.

-MISC1-
                                AMENDMENTS                            
      2006 - Subsec. (e). Pub. L. 109-364 added subsec. (e).
      2003 - Subsec. (b)(7) to (9). Pub. L. 108-136 redesignated pars.
    (8) and (9) as (7) and (8), respectively, and struck out former
    par. (7) which read as follows: "requiring the contractor to
    furnish written assurance at the time the technical data is
    delivered or is made available that the technical data is complete
    and accurate and satisfies the requirements of the contract
    concerning technical data;".
      1994 - Subsec. (b)(1). Pub. L. 103-355 inserted before semicolon
    at end "and providing that, in the case of a contract for a
    commercial item, the item shall be presumed to be developed at
    private expense unless shown otherwise in accordance with section
    2321(f)".
      1989 - Subsec. (a)(4). Pub. L. 101-189 struck out par. (4) which
    provided that for purposes of this subsection, the term "Federal
    Acquisition Regulation" means the single system of Government-wide
    procurement regulations as defined in section 4(4) of the Office of
    Federal Procurement Policy Act (41 U.S.C. 403(4)).
      1987 - Subsec. (a)(1). Pub. L. 100-180, Sec. 808(a)(1), inserted
    at end "Such regulations also may not impair the right of a
    contractor or subcontractor to receive from a third party a fee or
    royalty for the use of technical data pertaining to an item or
    process developed exclusively at private expense by the contractor
    or subcontractor, except as otherwise specifically provided by
    law."
      Subsec. (a)(2)(A). Pub. L. 100-26, Sec. 7(a)(4)(A), inserted
    "(other than an item or process developed under a contract or
    subcontract to which regulations under section 9(j)(2) of the Small
    Business Act (15 U.S.C. 638(j)(2)) apply)" after "Federal funds".
      Subsec. (a)(2)(E). Pub. L. 100-180, Sec. 808(a)(2), in
    introductory provisions, substituted "established" for "agreed
    upon", struck out comma after "negotiations)" and inserted in lieu
    "and shall be based upon negotiations between the United States and
    the contractor, except in any case in which the Secretary of
    Defense determines, on the basis of criteria established in the
    regulations, that negotiations would not be practicable. The
    establishment of such rights shall be", and added cl. (iv).
      Subsec. (a)(2)(F). Pub. L. 100-180, Sec. 808(a)(3), amended
    subpar. (F) generally. Prior to amendment, subpar. (F) read as
    follows: "A contractor or subcontractor (or a prospective
    contractor or subcontractor) may not be required, as a condition of
    being responsive to a solicitation or as a condition for the award
    of a contract, to sell or otherwise relinquish to the United States
    any rights in technical data except - 
        "(i) rights in technical data described in subparagraph (C); or
        "(ii) under the conditions described in subparagraph (D)."
      Subsec. (a)(2)(G)(i). Pub. L. 100-180, Sec. 808(a)(4)(A),
    substituted "not otherwise provided under subparagraph (C) or (D),"
    for "pertaining to an item or process developed by such contractor
    or subcontractor exclusively at private expense" and struck out
    "or" at end.
      Subsec. (a)(2)(G)(ii). Pub. L. 100-180, Sec. 808(a)(4)(B),
    substituted "this section" for "such regulations" and "; or" for
    period at end.
      Pub. L. 100-26, Sec. 7(a)(4)(B), substituted "in technical data
    otherwise accorded to the United States under such regulations" for
    "of the United States in technical data pertaining to an item or
    process developed entirely or in part with Federal funds".
      Subsec. (a)(2)(G)(iii). Pub. L. 100-180, Sec. 808(a)(4)(C), added
    cl. (iii).
      Subsec. (a)(3). Pub. L. 100-180, Sec. 808(a)(5), substituted ",
    'exclusively with Federal funds', and 'exclusively at private
    expense' " for "and 'private expense' " and inserted at end "In
    defining such terms, the Secretary shall specify the manner in
    which indirect costs shall be treated and shall specify that
    amounts spent for independent research and development and bid and
    proposal costs shall not be considered to be Federal funds for the
    purposes of definitions under this paragraph."
      Subsec. (c). Pub. L. 100-180, Sec. 808(b), substituted "from - "
    for "from", designated existing provisions beginning with
    "prescribing standards" as par. (1), and added par. (2).
      1986 - Subsec. (a). Pub. L. 99-500, Pub. L. 99-591, and Pub. L.
    99-661 amended generally subsec. (a) identically, substituting
    provision that regulations to define the legitimate interest of the
    United States and of a contractor or subcontractor in technical
    data be included in regulations of the Department of Defense
    prescribed as part of the Federal Acquisition Regulation for
    provision that such regulations define the legitimate proprietary
    interest of the United States and a contractor and be part of the
    single system of Government-wide procurement regulations, detailed
    what such regulations must contain if the item or process is
    developed exclusively with Federal funds, exclusively with private
    funds, or partly with Federal funds and partly with private funds,
    inserted provision relating to relinquishment of rights in data to
    the United States, directed the Secretary of Defense to define
    "developed" and "private expense", and defined "Federal Acquisition
    Regulation".
      1985 - Subsec. (a)(1). Pub. L. 99-145 substituted "the item or
    process to which the technical data pertains" for "the technical
    data".
      1984 - Subsec. (a). Pub. L. 98-577 substituted "in regulations of
    the Department of Defense prescribed as part" for "in regulations
    prescribed as part" in text preceding par. (1).

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1987 AMENDMENT                 
      Section 808(c) of Pub. L. 100-180 provided that: "The amendments
    made by this section [amending this section] shall take effect on
    the earlier of - 
        "(1) the last day of the 120-day period beginning on the date
      of the enactment of this Act [Dec. 4, 1987]; or
        "(2) the date on which regulations are prescribed and made
      effective to implement such amendments."

                     EFFECTIVE DATE OF 1986 AMENDMENT                 
      Section 101(c) [title X, Sec. 953(e)] of Pub. L. 99-500 and Pub.
    L. 99-591, and section 953(e) of title IX, formerly title IV, of
    Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made
    by subsections (a) and (b) [amending this section and section 2321
    of this title] shall apply to contracts for which solicitations are
    issued after the end of the 210-day period beginning on the date of
    the enactment of this Act [Oct. 18, 1986]."

                              EFFECTIVE DATE                          
      Section applicable with respect to solicitations issued after the
    end of the one-year period beginning Oct. 19, 1984, see section
    1216(c)(2) of Pub. L. 98-525, set out as a note under section 2319
    of this title.

                                REGULATIONS                            
      Pub. L. 109-364, div. A, title VIII, Sec. 802(c), Oct. 17, 2006,
    120 Stat. 2313, provided that: "Not later than 180 days after the
    date of the enactment of this Act [Oct. 17, 2006], the Secretary of
    Defense shall revise regulations under section 2320 of title 10,
    United States Code, to implement subsection (e) of such section (as
    added by this section), including incorporating policy changes
    developed under such subsection into Department of Defense
    Directive 5000.1 and Department of Defense Instruction 5000.2."
      Section 101(c) [title X, Sec. 953(d)] of Pub. L. 99-500 and Pub.
    L. 99-591, and section 953(d) of title IX, formerly title IV, of
    Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273, required that proposed regulations
    under subsec. (a)(1) of this section be published in Federal
    Register for comment not later than 90 days after Oct. 18, 1986,
    and that proposed final regulations be published in Federal
    Register not later than 180 days after Oct. 18, 1986.

         GOVERNMENT-INDUSTRY COMMITTEE ON RIGHTS IN TECHNICAL DATA     
      Pub. L. 102-190, div. A, title VIII, Sec. 807, Dec. 5, 1991, 105
    Stat. 1421, as amended by Pub. L. 102-484, div. A, title VIII, Sec.
    814, Oct. 23, 1992, 106 Stat. 2454; Pub. L. 105-85, div. A, title
    X, Sec. 1073(d)(3), Nov. 18, 1997, 111 Stat. 1905, provided that
    not later than Sept. 15, 1992, the Secretary of Defense was to
    prescribe final regulations required by subsec. (a) of this section
    that supersede the interim regulations prescribed before Dec. 5,
    1991, for the purposes of this section and contained various
    provisions relating to a government-industry advisory committee,
    reports to Congress, publication of the regulations, and
    application of the regulations.

               CONTROL OF GOVERNMENT PERSONNEL WORK PRODUCT           
      Pub. L. 102-190, div. A, title VIII, Sec. 808, Dec. 5, 1991, 105
    Stat. 1423, required Secretary of Defense to prescribe regulations
    ensuring that any Department of Defense employee or member of the
    armed forces with an appropriate security clearance who is engaged
    in oversight of an acquisition program maintains control of the
    employee's or member's work product, provided that procedures for
    protecting unauthorized disclosure of classified information by
    contractors do not require such an employee or member to relinquish
    control of his or her work product to any such contractor, required
    implementing regulations not later than 120 days after Dec. 5,
    1991, and provided that this section would cease to be effective on
    Sept. 30, 1992.

-End-

-CITE-
    10 USC Sec. 2321                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2321. Validation of proprietary data restrictions

-STATUTE-
      (a) Contracts Covered by Section. - This section applies to any
    contract for supplies or services entered into by the Department of
    Defense that includes provisions for the delivery of technical
    data.
      (b) Contractor Justification for Restrictions. - A contract
    subject to this section shall provide that a contractor under the
    contract and any subcontractor under the contract at any tier shall
    be prepared to furnish to the contracting officer a written
    justification for any use or release restriction (as defined in
    subsection (i)) asserted by the contractor or subcontractor.
      (c) Review of Restrictions. - (1) The Secretary of Defense shall
    ensure that there is a thorough review of the appropriateness of
    any use or release restriction asserted with respect to technical
    data by a contractor or subcontractor at any tier under a contract
    subject to this section.
      (2) The review of an asserted use or release restriction under
    paragraph (1) shall be conducted before the end of the three-year
    period beginning on the later of - 
        (A) the date on which final payment is made on the contract
      under which the technical data is required to be delivered; or
        (B) the date on which the technical data is delivered under the
      contract.

      (d) Challenges to Restrictions. - (1) The Secretary of Defense
    may challenge a use or release restriction asserted with respect to
    technical data by a contractor or subcontractor at any tier under a
    contract subject to this section if the Secretary finds that - 
        (A) reasonable grounds exist to question the current validity
      of the asserted restriction; and
        (B) the continued adherence by the United States to the
      asserted restriction would make it impracticable to procure the
      item to which the technical data pertain competitively at a later
      time.

      (2)(A) A challenge to an asserted use or release restriction may
    not be made under paragraph (1) after the end of the three-year
    period described in subparagraph (B) unless the technical data
    involved - 
        (i) are publicly available;
        (ii) have been furnished to the United States without
      restriction; or
        (iii) have been otherwise made available without restriction.

      (B) The three-year period referred to in subparagraph (A) is the
    three-year period beginning on the later of - 
        (i) the date on which final payment is made on the contract
      under which the technical data are required to be delivered; or
        (ii) the date on which the technical data are delivered under
      the contract.

      (3) If the Secretary challenges an asserted use or release
    restriction under paragraph (1), the Secretary shall provide
    written notice of the challenge to the contractor or subcontractor
    asserting the restriction. Any such notice shall - 
        (A) state the specific grounds for challenging the asserted
      restriction;
        (B) require a response within 60 days justifying the current
      validity of the asserted restriction; and
        (C) state that evidence of a justification described in
      paragraph (4) may be submitted.

      (4) It is a justification of an asserted use or release
    restriction challenged under paragraph (1) that, within the three-
    year period preceding the challenge to the restriction, the
    Department of Defense validated a restriction identical to the
    asserted restriction if - 
        (A) such validation occurred after a challenge to the validated
      restriction under this subsection; and
        (B) the validated restriction was asserted by the same
      contractor or subcontractor (or a licensee of such contractor or
      subcontractor).

      (e) Time for Contractors to Submit Justifications. - If a
    contractor or subcontractor asserting a use or release restriction
    submits to the contracting officer a written request, showing the
    need for additional time to comply with the requirement to justify
    the current validity of the asserted restriction, additional time
    to adequately permit the submission of such justification shall be
    provided by the contracting officer as appropriate. If a party
    asserting a restriction receives notices of challenges to
    restrictions on technical data from more than one contracting
    officer, and notifies each contracting officer of the existence of
    more than one challenge, the contracting officer initiating the
    first in time challenge, after consultation with the party
    asserting the restriction and the other contracting officers, shall
    formulate a schedule of responses to each of the challenges that
    will afford the party asserting the restriction with an equitable
    opportunity to respond to each such challenge.
      (f) Presumption of Development Exclusively at Private Expense. -
    (1) Except as provided in paragraph (2), in the case of a challenge
    to a use or release restriction that is asserted with respect to
    technical data of a contractor or subcontractor under a contract
    for commercial items, the contracting officer shall presume that
    the contractor or subcontractor has justified the restriction on
    the basis that the item was developed exclusively at private
    expense, whether or not the contractor or subcontractor submits a
    justification in response to the notice provided pursuant to
    subsection (d)(3). In such a case, the challenge to the use or
    release restriction may be sustained only if information provided
    by the Department of Defense demonstrates that the item was not
    developed exclusively at private expense.
      (2) In the case of a challenge to a use or release restriction
    that is asserted with respect to technical data of a contractor or
    subcontractor (whether or not under a contract for commercial
    items) for a major system or a subsystem or component thereof on
    the basis that the major system, subsystem or component was
    developed exclusively at private expense, the challenge to the use
    or release restriction shall be sustained unless information
    provided by the contractor or subcontractor demonstrates that the
    item was developed exclusively at private expense.
      (g) Decision by Contracting Officer. - (1) Upon a failure by the
    contractor or subcontractor to submit any response under subsection
    (d)(3), the contracting officer shall issue a decision pertaining
    to the validity of the asserted restriction.
      (2) After review of any justification submitted in response to
    the notice provided pursuant to subsection (d)(3), the contracting
    officer shall, within 60 days of receipt of any justification
    submitted, issue a decision or notify the party asserting the
    restriction of the time within which a decision will be issued.
      (h) Claims. - If a claim pertaining to the validity of the
    asserted restriction is submitted in writing to a contracting
    officer by a contractor or subcontractor at any tier, such claim
    shall be considered a claim within the meaning of the Contract
    Disputes Act of 1978 (41 U.S.C. 601 et seq.).
      (i) Rights and Liability Upon Final Disposition. - (1) If, upon
    final disposition, the contracting officer's challenge to the use
    or release restriction is sustained - 
        (A) the restriction shall be cancelled; and
        (B) if the asserted restriction is found not to be
      substantially justified, the contractor or subcontractor
      asserting the restriction shall be liable to the United States
      for payment of the cost to the United States 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 United
      States in challenging the asserted restriction, unless special
      circumstances would make such payment unjust.

      (2) If, upon final disposition, the contracting officer's
    challenge to the use or release restriction is not sustained - 
        (A) the United States shall continue to be bound by the
      restriction; and
        (B) the United States shall be 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 United States is found not to be made in
      good faith.

      (j) Use or Release Restriction Defined. - In this section, the
    term "use or release restriction", with respect to technical data
    delivered to the United States under a contract subject to this
    section, means a restriction by the contractor or subcontractor on
    the right of the United States - 
        (1) to use such technical data; or
        (2) to release or disclose such technical data to persons
      outside the Government or permit the use of such technical data
      by persons outside the Government.

-SOURCE-
    (Added Pub. L. 98-525, title XII, Sec. 1216(a), Oct. 19, 1984, 98
    Stat. 2597; amended Pub. L. 99-500 Sec. 101(c) [title X, Sec.
    953(b)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-171, and Pub. L. 99-
    591, Sec. 101(c) [title X, Sec. 953(b)], Oct. 30, 1986, 100 Stat.
    3341-82, 3341-171; Pub. L. 99-661, div. A, title IX, formerly title
    IV, Sec. 953(b), Nov. 14, 1986, 100 Stat. 3951, renumbered title
    IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273, Pub.
    L. 100-26, Sec. 7(a)(5), Apr. 21, 1987, 101 Stat. 276; Pub. L. 100-
    180, div. A, title XII, Sec. 1231(6), Dec. 4, 1987, 101 Stat.
    1160; Pub. L. 103-35, title II, Sec. 201(g)(4), May 31, 1993, 107
    Stat. 100; Pub. L. 103-355, title VIII, Sec. 8106(b), Oct. 13,
    1994, 108 Stat. 3393; Pub. L. 109-364, div. A, title VIII, Sec.
    802(b), Oct. 17, 2006, 120 Stat. 2313.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      The Contract Disputes Act of 1978, referred to in subsec. (h), is
    Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which is
    classified principally to chapter 9 (Sec. 601 et seq.) of Title 41,
    Public Contracts. For complete classification of this Act to the
    Code, see Short Title note set out under section 601 of Title 41
    and Tables.

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
      Another section 2321 of this title was contained in chapter 138
    and was renumbered section 2341 of this title.

-MISC1-
                                AMENDMENTS                            
      2006 - Subsec. (f). Pub. L. 109-364 substituted "Expense" for
    "Expense for Commercial Items Contracts" in heading, designated
    existing provisions as par. (1), substituted "Except as provided in
    paragraph (2), in" for "In", and added par. (2).
      1994 - Subsecs. (f) to (j). Pub. L. 103-355 added subsec. (f) and
    redesignated former subsecs. (f) to (i) as (g) to (j),
    respectively.
      1993 - Subsec. (d)(1)(B). Pub. L. 103-35 substituted "adherence"
    for "adherance".
      1987 - Subsec. (a). Pub. L. 100-26, Sec. 7(a)(5)(A)(ii), added
    subsec. (a) and struck out former subsec. (a) which read as
    follows: "A contract for supplies or services entered into by the
    Department of Defense which provides for the delivery of technical
    data shall provide that a contractor or subcontractor at any tier
    shall be prepared to furnish to the contracting officer a written
    justification for any restriction asserted by the contractor or
    subcontractor on the right of the United States to use such
    technical data."
      Subsec. (b). Pub. L. 100-26, Sec. 7(a)(5)(A)(ii), added subsec.
    (b) and struck out former subsec. (b) which read as follows:
      "(1) The Secretary of Defense shall ensure that there is a
    thorough review of the appropriateness of any restriction on the
    right of the United States to release or disclose technical data
    delivered under a contract to persons outside the Government, or to
    permit the use of such technical data by such persons. Such review
    shall be conducted before the end of the three-year period
    beginning on the date on which final payment is made on a contract
    under which technical data is required to be delivered, or the date
    on which the technical data is delivered under such contract,
    whichever is later.
      "(2)(A) If the Secretary determines, at any time before the end
    of the three-year period beginning on the date on which final
    payment is made on a contract under which technical data is
    required to be delivered, or the date on which the technical data
    is delivered under such contract, whichever is later, that a
    challenge to a restriction is warranted, the Secretary shall
    provide written notice to the contractor or subcontractor asserting
    the restriction. Such a determination shall be based on a finding
    by the Secretary that reasonable grounds exist to question the
    current validity of the asserted restriction and that the continued
    adherence to the asserted restriction by the United States would
    make it impracticable to procure the item competitively at a later
    time. Such notice shall - 
        "(i) state the specific grounds for challenging the asserted
      restriction;
        "(ii) require a response within 60 days justifying the current
      validity of the asserted restriction; and
        "(iii) state that evidence of a validation by the Department of
      Defense of a restriction identical to the asserted restriction
      within the three-year period preceding the challenge shall serve
      as justification for the asserted restriction if - 
          "(I) the validation occurred after a review of the validated
        restriction under this subsection; and
          "(II) the validated restriction was asserted by the same
        contractor or subcontractor (or any licensee of such contractor
        or subcontractor) to which such notice is being provided.
      "(B) Notwithstanding subparagraph (A), the United States may
    challenge a restriction on the release, disclosure, or use of
    technical data delivered under a contract at any time if such
    technical data - 
        "(i) is publicly available;
        "(ii) has been furnished to the United States without
      restriction; or
        "(iii) has been otherwise made available without restriction."
      Subsec. (c). Pub. L. 100-26, Sec. 7(a)(5)(A)(ii), added subsec.
    (c). Former subsec. (c) redesignated (e).
      Subsec. (d). Pub. L. 100-26, Sec. 7(a)(5)(A)(ii), added subsec.
    (d). Former subsec. (d) redesignated (f).
      Subsec. (d)(4)(A). Pub. L. 99-180, Sec. 1231(6)(A), substituted
    "subsection" for "paragraph".
      Subsec. (e). Pub. L. 100-26, Sec. 7(a)(5)(A)(i), (B),
    redesignated former subsec. (c) as (e), inserted heading, and
    substituted "If a contractor or subcontractor asserting a use or
    release restriction" for "If a contractor or subcontractor
    asserting a restriction subject to this section". Former subsec.
    (e) redesignated (g).
      Subsec. (f). Pub. L. 100-26, Sec. 7(a)(5)(A)(i), (C),
    redesignated former subsec. (d) as (f), inserted heading, and
    substituted "subsection (d)(3)" for "subsection (b)" in two places.
    Former subsec. (f) redesignated (h).
      Subsec. (g). Pub. L. 100-26, Sec. 7(a)(5)(A)(i), (D),
    redesignated former subsec. (e) as (g) and inserted heading.
      Subsec. (h). Pub. L. 100-26, Sec. 7(a)(5)(A)(i), (E)(i),
    redesignated former subsec. (f) as (h) and inserted heading.
      Subsec. (h)(1). Pub. L. 100-26, Sec. 7(a)(5)(E)(ii)-(iv),
    substituted "the use or release restriction" for "the restriction
    on the right of the United States to use such technical data" in
    introductory provisions, struck out "on the right of the United
    States to use the technical data" after "the restriction" in
    subpar. (A), and substituted "asserting the restriction" for ", as
    appropriate," in subpar. (B).
      Subsec. (h)(2). Pub. L. 100-26, Sec. 7(a)(5)(E)(v), substituted
    "the use or release restriction" for "the restriction on the right
    of the United States to use such technical data" in introductory
    provisions.
      Subsec. (i). Pub. L. 100-180, Sec. 1231(6)(B), inserted "or
    subcontractor" in introductory provisions.
      Pub. L. 100-26, Sec. 7(a)(5)(F), added subsec. (i).
      1986 - Subsecs. (a), (b). Pub. L. 99-500, Pub. L. 99-591, and
    Pub. L. 99-661 amended generally subsecs. (a) and (b) identically.
    Prior to amendment, subsecs. (a) and (b) read as follows:
      "(a) A contract for supplies or services entered into by the
    Department of Defense which provides for the delivery of technical
    data shall provide that - 
        "(1) a contractor or subcontractor at any tier shall be
      prepared to furnish to the contracting officer a written
      justification for any restriction asserted by the contractor or
      subcontractor on the right of the United States to use such
      technical data; and
        "(2) the contracting officer may review the validity of any
      restriction asserted by the contractor or by a subcontractor
      under the contract on the right of the United States to use
      technical data furnished to the United States 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 United States would make it impracticable to
      procure the item competitively at a later time.
      "(b) If after such review the contracting officer determines that
    a challenge to the asserted restriction is warranted, the
    contracting officer shall provide written notice to the contractor
    or subcontractor asserting the restriction. Such notice shall - 
        "(1) state the grounds for challenging the asserted
      restriction; and
        "(2) require a response within 60 days justifying the current
      validity of the asserted restriction."

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1987 AMENDMENT                 
      Section 12(d)(1) of Pub. L. 100-26 provided that: "The amendments
    to section 2321 of title 10, United States Code, made by section
    7(a)(5) shall apply to contracts for which solicitations are issued
    after the end of the 210-day period beginning on October 18, 1986."

                     EFFECTIVE DATE OF 1986 AMENDMENT                 
      Amendment by Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99-661
    applicable to contracts for which solicitations are issued after
    end of 210-day period beginning Oct. 18, 1986, see section 101(c)
    of Pub. L. 99-500 and Pub. L. 99-591, and section 953(e) of Pub. L.
    99-661, set out as a note under section 2320 of this title.

                              EFFECTIVE DATE                          
      Section applicable with respect to solicitations issued after the
    end of the one-year period beginning Oct. 19, 1984, see section
    1216(c)(2) of Pub. L. 98-525, set out as a note under section 2319
    of this title.

-End-

-CITE-
    10 USC Sec. 2322                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2322. Repealed.

-MISC1-
    [Sec. 2322. Repealed. Pub. L. 102-484, div. A, title X, Sec.
      1052(25)(A), Oct. 23, 1992, 106 Stat. 2500].
      Section, added Pub. L. 98-525, title XII, Sec. 1216(a), Oct. 19,
    1984, 98 Stat. 2598; amended Pub. L. 100-26, Sec. 7(a)(6), Apr. 21,
    1987, 101 Stat. 278; Pub. L. 100-180, div. A, title XII, Sec.
    1231(7), Dec. 4, 1987, 101 Stat. 1160, limited small business set-
    asides under the Foreign Military Sales Program and provided that
    the section expired Jan. 17, 1987.
      Another section 2322 of this title was contained in chapter 138
    and was renumbered section 2342 of this title.

-End-

-CITE-
    10 USC Sec. 2323                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2323. Contract goal for small disadvantaged businesses and
      certain institutions of higher education

-STATUTE-
      (a) Goal. - (1) Except as provided in subsection (d), a goal of 5
    percent of the amount described in subsection (b) shall be the
    objective of the Department of Defense, the Coast Guard, and the
    National Aeronautics and Space Administration in each fiscal year
    for the total combined amount obligated for contracts and
    subcontracts entered into with - 
        (A) small business concerns, including mass media and
      advertising firms, owned and controlled by socially and
      economically disadvantaged individuals (as such term is used in
      section 8(d) of the Small Business Act (15 U.S.C. 637(d)) and
      regulations issued under that section), the majority of the
      earnings of which directly accrue to such individuals, and
      qualified HUBZone small business concerns (as defined in section
      3(p) of the Small Business Act);
        (B) historically Black colleges and universities, including any
      nonprofit research institution that was an integral part of such
      a college or university before November 14, 1986;
        (C) minority institutions (as defined in section 365(3) of the
      Higher Education Act of 1965 (20 U.S.C. 1067k)); and
        (D) Hispanic-serving institutions (as defined in section 502(a)
      of the Higher Education Act of 1965 (20 U.S.C. 1101a(a)).(!1)

      (2) The head of the agency shall establish a specific goal within
    the overall 5 percent goal for the award of prime contracts and
    subcontracts to historically Black colleges and universities,
    Hispanic-serving institutions, and minority institutions in order
    to increase the participation of such colleges and universities and
    institutions in the program provided for by this section.
      (3) The Federal Acquisition Regulation shall provide procedures
    or guidelines for contracting officers to set goals which agency
    prime contractors that are required to submit subcontracting plans
    under section 8(d)(4)(B) of the Small Business Act (15 U.S.C.
    637(d)(4)(B)) in furtherance of the agency's program to meet the 5
    percent goal specified in paragraph (1) should meet in awarding
    subcontracts, including subcontracts to minority-owned media, to
    entities described in that paragraph.
      (b) Amount. - (1) With respect to the Department of Defense, the
    requirements of subsection (a) for any fiscal year apply to the
    combined total of the following amounts:
        (A) Funds obligated for contracts entered into with the
      Department of Defense for such fiscal year for procurement.
        (B) Funds obligated for contracts entered into with the
      Department of Defense for such fiscal year for research,
      development, test, and evaluation.
        (C) Funds obligated for contracts entered into with the
      Department of Defense for such fiscal year for military
      construction.
        (D) Funds obligated for contracts entered into with the
      Department of Defense for operation and maintenance.

      (2) With respect to the Coast Guard, the requirements of
    subsection (a) for any fiscal year apply to the total value of all
    prime contract and subcontract awards entered into by the Coast
    Guard for such fiscal year.
      (3) With respect to the National Aeronautics and Space
    Administration, the requirements of subsection (a) for any fiscal
    year apply to the total value of all prime contract and subcontract
    awards entered into by the National Aeronautics and Space
    Administration for such fiscal year.
      (c) Types of Assistance. - (1) To attain the goal specified in
    subsection (a)(1), the head of an agency shall provide technical
    assistance to the entities referred to in that subsection and, in
    the case of historically Black colleges and universities, Hispanic-
    serving institutions, and minority institutions, shall also
    provide infrastructure assistance.
      (2) Technical assistance provided under this section shall
    include information about the program, advice about agency
    procurement procedures, instruction in preparation of proposals,
    and other such assistance as the head of the agency considers
    appropriate. If the resources of the agency are inadequate to
    provide such assistance, the head of the agency may enter into
    contracts with minority private sector entities with experience and
    expertise in the design, development, and delivery of technical
    assistance services to eligible individuals, business firms and
    institutions, acquisition agencies, and prime contractors. Agency
    contracts with such entities shall be awarded annually, based upon,
    among other things, the number of minority small business concerns,
    historically Black colleges and universities, and minority
    institutions that each such entity brings into the program.
      (3) Infrastructure assistance provided by the Department of
    Defense under this section to historically Black colleges and
    universities, to Hispanic-serving institutions, and to minority
    institutions may include programs to do the following:
        (A) Establish and enhance undergraduate, graduate, and doctoral
      programs in scientific disciplines critical to the national
      security functions of the Department of Defense.
        (B) Make Department of Defense personnel available to advise
      and assist faculty at such colleges and universities in the
      performance of defense research and in scientific disciplines
      critical to the national security functions of the Department of
      Defense.
        (C) Establish partnerships between defense laboratories and
      historically Black colleges and universities and minority
      institutions for the purpose of training students in scientific
      disciplines critical to the national security functions of the
      Department of Defense.
        (D) Award scholarships, fellowships, and the establishment of
      cooperative work-education programs in scientific disciplines
      critical to the national security functions of the Department of
      Defense.
        (E) Attract and retain faculty involved in scientific
      disciplines critical to the national security functions of the
      Department of Defense.
        (F) Equip and renovate laboratories for the performance of
      defense research.
        (G) Expand and equip Reserve Officer Training Corps activities
      devoted to scientific disciplines critical to the national
      security functions of the Department of Defense.
        (H) Provide other assistance as the Secretary determines
      appropriate to strengthen scientific disciplines critical to the
      national security functions of the Department of Defense or the
      college infrastructure to support the performance of defense
      research.

      (4) The head of the agency shall, to the maximum extent
    practical, carry out programs under this section at colleges,
    universities, and institutions that agree to bear a substantial
    portion of the cost associated with the programs.
      (d) Applicability. - Subsection (a) does not apply to the
    Department of Defense - 
        (1) to the extent to which the Secretary of Defense determines
      that compelling national security considerations require
      otherwise; and
        (2) if the Secretary notifies Congress of such determination
      and the reasons for such determination.

      (e) Competitive Procedures and Advance Payments. - To attain the
    goal of subsection (a):
        (1)(A) The head of the agency shall - 
          (i) ensure that substantial progress is made in increasing
        awards of agency contracts to entities described in subsection
        (a)(1);
          (ii) exercise his utmost authority, resourcefulness, and
        diligence;
          (iii) in the case of the Department of Defense, actively
        monitor and assess the progress of the military departments,
        Defense Agencies, and prime contractors of the Department of
        Defense in attaining such goal; and
          (iv) in the case of the Coast Guard and the National
        Aeronautics and Space Administration, actively monitor and
        assess the progress of the prime contractors of the agency in
        attaining such goal.

        (B) In making the assessment under clauses (iii) and (iv) of
      subparagraph (A), the head of the agency shall evaluate the
      extent to which use of the authority provided in paragraphs (2)
      and (3) and compliance with the requirement in paragraph (4) is
      effective for facilitating the attainment of the goal.
        (2) To the extent practicable and when necessary to facilitate
      achievement of the 5 percent goal described in subsection (a),
      the head of an agency shall make advance payments under section
      2307 of this title to contractors described in subsection (a).
      The Federal Acquisition Regulation shall provide guidance to
      contracting officers for making advance payments to entities
      described in subsection (a)(1) under such section.
        (3)(A) To the extent practicable and when necessary to
      facilitate achievement of the 5 percent goal described in
      subsection (a), the head of an agency may, except as provided in
      subparagraph (B), enter into contracts using less than full and
      open competitive procedures (including awards under section 8(a)
      of the Small Business Act) and partial set asides for entities
      described in subsection (a)(1), but shall pay a price not
      exceeding fair market cost by more than 10 percent in payment per
      contract to contractors or subcontractors described in subsection
      (a). The head of an agency shall adjust the percentage specified
      in the preceding sentence for any industry category if available
      information clearly indicates that nondisadvantaged small
      business concerns in such industry category are generally being
      denied a reasonable opportunity to compete for contracts because
      of the use of that percentage in the application of this
      paragraph.
        (B)(i) The Secretary of Defense may not exercise the authority
      under subparagraph (A) to enter into a contract for a price
      exceeding fair market cost if the regulations implementing that
      authority are suspended under clause (ii) with respect to that
      contract.
        (ii) At the beginning of each fiscal year, the Secretary shall
      determine, on the basis of the most recent data, whether the
      Department of Defense achieved the 5 percent goal described in
      subsection (a) during the fiscal year to which the data relates.
      Upon determining that the Department achieved the goal for the
      fiscal year to which the data relates, the Secretary shall issue
      a suspension, in writing, of the regulations that implement the
      authority under subparagraph (A). Such a suspension shall be in
      effect for the one-year period beginning 30 days after the date
      on which the suspension is issued and shall apply with respect to
      contracts awarded pursuant to solicitations issued during that
      period.
        (iii) For purposes of clause (ii), the term "most recent data"
      means data relating to the most recent fiscal year for which data
      are available.
        (4) To the extent practicable, the head of an agency shall
      maximize the number of minority small business concerns,
      historically Black colleges and universities, and minority
      institutions participating in the program.
        (5) Each head of an agency shall prescribe regulations which
      provide for the following:
          (A) Procedures or guidance for contracting officers to
        provide incentives for prime contractors referred to in
        subsection (a)(3) to increase subcontractor awards to entities
        described in subsection (a)(1).
          (B) A requirement that contracting officers emphasize the
        award of contracts to entities described in subsection (a)(1)
        in all industry categories, including those categories in which
        such entities have not traditionally dominated.
          (C) Guidance to agency personnel on the relationship among
        the following programs:
            (i) The program implementing this section.
            (ii) The program established under section 8(a) of the
          Small Business Act (15 U.S.C. 637(a)).
            (iii) The small business set-aside program established
          under section 15(a) of the Small Business Act (15 U.S.C.
          644(a)).

          (D) With respect to an agency procurement which is reasonably
        likely to be set aside for entities described in subsection
        (a)(1), a requirement that (to the maximum extent practicable)
        the procurement be designated as such a set-aside before the
        solicitation for the procurement is issued.
          (E) Policies and procedures which, to the maximum extent
        practicable, will ensure that current levels in the number or
        dollar value of contracts awarded under the program established
        under section 8(a) of the Small Business Act (15 U.S.C. 637(a))
        and under the small business set-aside program established
        under section 15(a) of the Small Business Act (15 U.S.C.
        644(a)) are maintained and that every effort is made to provide
        new opportunities for contract awards to eligible entities, in
        order to meet the goal of subsection (a).
          (F) Implementation of this section in a manner which will not
        alter the procurement process under the program established
        under section 8(a) of the Small Business Act (15 U.S.C.
        637(a)).
          (G) A requirement that one factor used in evaluating the
        performance of a contracting officer be the ability of the
        officer to increase contract awards to entities described in
        subsection (a)(1).
          (H) Increased technical assistance to entities described in
        subsection (a)(1).

      (f) Penalties and Regulations Relating to Status. - (1) Whoever
    for the purpose of securing a contract or subcontract under
    subsection (a) misrepresents the status of any concern or person as
    a small business concern owned and controlled by a minority (as
    described in subsection (a)) or as a qualified HUBZone small
    business concern (as defined in section 3(p) of the Small Business
    Act), shall be punished by imprisonment for not more than one year,
    or a fine under title 18, or both.
      (2) The Federal Acquisition Regulation shall prohibit awarding a
    contract under this section to an entity described in subsection
    (a)(1) unless the entity agrees to comply with the requirements of
    section 15(o)(1) of the Small Business Act (15 U.S.C. 644(o)(1)).
      (g) Industry Categories. - (1) To the maximum extent practicable,
    the head of the agency shall - 
        (A) ensure that no particular industry category bears a
      disproportionate share of the contracts awarded to attain the
      goal established by subsection (a); and
        (B) ensure that contracts awarded to attain the goal
      established by subsection (a) are made across the broadest
      possible range of industry categories.

      (2) Under procedures prescribed by the head of the agency, a
    person may request the Secretary to determine whether the use of
    small disadvantaged business set asides by a contracting activity
    of the agency has caused a particular industry category to bear a
    disproportionate share of the contracts awarded to attain the goal
    established for that contracting activity for the purposes of this
    section. Upon making a determination that a particular industry
    category is bearing a disproportionate share, the head of the
    agency shall take appropriate actions to limit the contracting
    activity's use of set asides in awarding contracts in that
    particular industry category.
      (h) Compliance With Subcontracting Plan Requirements. - (1) The
    Federal Acquisition Regulation shall contain regulations to ensure
    that potential contractors submitting sealed bids or competitive
    proposals to the agency for procurement contracts to be awarded
    under the program provided for by this section are complying with
    applicable subcontracting plan requirements of section 8(d) of the
    Small Business Act (15 U.S.C. 637(d)).
      (2) The regulations required by paragraph (1) shall ensure that,
    with respect to a sealed bid or competitive proposal for which the
    bidder or offeror is required to negotiate or submit a
    subcontracting plan under section 8(d) of the Small Business Act
    (15 U.S.C. 637(d)), the subcontracting plan shall be a factor in
    evaluating the bid or proposal.
      (i) Annual Report. - (1) Not later than December 15 of each year,
    the head of the agency shall submit to Congress a report on the
    progress of the agency toward attaining the goal of subsection (a)
    during the preceding fiscal year.
      (2) The report required under paragraph (1) shall include the
    following:
        (A) A full explanation of any progress toward attaining the
      goal of subsection (a).
        (B) A plan to achieve the goal, if necessary.

      (j) Definitions. - In this section:
        (1) The term "agency" means the Department of Defense, the
      Coast Guard, and the National Aeronautics and Space
      Administration.
        (2) The term "head of an agency" means the Secretary of
      Defense, the Secretary of Homeland Security, and the
      Administrator of the National Aeronautics and Space
      Administration.

      (k) Effective Date. - (1) This section applies in the Department
    of Defense to each of fiscal years 1987 through 2009.
      (2) This section applies in the Coast Guard and the National
    Aeronautics and Space Administration in each of fiscal years 1995
    through 2009.

-SOURCE-
    (Added and amended Pub. L. 102-484, div. A, title VIII, Secs.
    801(a)(1), (b)-(f), 802, Oct. 23, 1992, 106 Stat. 2442-2444, 2446;
    Pub. L. 103-35, title II, Sec. 202(a)(6), May 31, 1993, 107 Stat.
    101; Pub. L. 103-160, div. A, title VIII, Sec. 811(a)-(c), (e),
    Nov. 30, 1993, 107 Stat. 1702; Pub. L. 103-355, title VII, Sec.
    7105, Oct. 13, 1994, 108 Stat. 3369; Pub. L. 104-106, div. D, title
    XLIII, Sec. 4321(b)(8), Feb. 10, 1996, 110 Stat. 672; Pub. L. 105-
    135, title VI, Sec. 604(a), Dec. 2, 1997, 111 Stat. 2632; Pub. L.
    105-261, div. A, title VIII, Sec. 801, Oct. 17, 1998, 112 Stat.
    2080; Pub. L. 106-65, div. A, title VIII, Sec. 808, Oct. 5, 1999,
    113 Stat. 705; Pub. L. 107-107, div. A, title X, Sec. 1048(a)(17),
    Dec. 28, 2001, 115 Stat. 1223; Pub. L. 107-296, title XVII, Sec.
    1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 107-314, div. A,
    title VIII, Sec. 816, Dec. 2, 2002, 116 Stat. 2610; Pub. L. 108-
    136, div. A, title X, Sec. 1031(a)(15), Nov. 24, 2003, 117 Stat.
    1597; Pub. L. 109-163, div. A, title VIII, Sec. 842, Jan. 6, 2006,
    119 Stat. 3389; Pub. L. 109-364, div. A, title VIII, Sec. 858, Oct.
    17, 2006, 120 Stat. 2349.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 3(p) of the Small Business Act, referred to in subsecs.
    (a)(1)(A) and (f)(1), is classified to section 632(p) of Title 15,
    Commerce and Trade.
      Section 8(a) of the Small Business Act, referred to in subsec.
    (e)(3)(A), is classified to section 637(a) of Title 15, Commerce
    and Trade.

-COD-
                               CODIFICATION                           
      Section, as added by Pub. L. 102-484, Sec. 801(a)(1), consists of
    text of Pub. L. 99-661, div. A, title XII, Sec. 1207, Nov. 14,
    1986, 100 Stat. 3973, revised by Pub. L. 102-484 by substituting
    "each of fiscal years 1987 through 2000" for "each of fiscal years
    1987, 1988, 1989, 1990, 1991, 1992, and 1993" in subsec. (a)(1),
    "of this title" for "of title 10, United States Code," in subsec.
    (e)(2), and "each of fiscal years 1987 through 2000" for "each of
    fiscal years 1987, 1988, 1989, 1990, 1991, 1992, and 1993" in
    subsec. (h). Section 1207 of Pub. L. 99-661, which was formerly set
    out as a note under section 2301 of this title, was repealed by
    Pub. L. 102-484, div. A, title VIII, Sec. 801(h)(1), Oct. 23, 1992,
    106 Stat. 2445.

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2323, added Pub. L. 98-525, title XII, Sec.
    1216(a), Oct. 19, 1984, 98 Stat. 2598; amended Pub. L. 99-500, Sec.
    101(c) [title X, Sec. 926(a)(1)], Oct. 18, 1986, 100 Stat. 1783-82,
    1783-153, and Pub. L. 99-591, Sec. 101(c) [title X, Sec.
    926(a)(1)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-153; Pub. L. 99-
    661, div. A, title IX, formerly title IV, Sec. 926(a)(1), Nov. 14,
    1986, 100 Stat. 3933, renumbered title IX, Pub. L. 100-26, Sec.
    3(5), Apr. 21, 1987, 101 Stat. 273, related to commercial pricing
    for spare or repair parts, prior to repeal by Pub. L. 101-510, div.
    A, title VIII, Sec. 804(a), Nov. 5, 1990, 104 Stat. 1591.

                                AMENDMENTS                            
      2006 - Subsec. (a)(1)(D). Pub. L. 109-364, Sec. 858(1), added
    subpar. (D).
      Subsec. (a)(2). Pub. L. 109-364, Sec. 858(2), inserted ",
    Hispanic-serving institutions," before "and minority institutions"
    and "and institutions" before "in the program".
      Subsec. (c)(1). Pub. L. 109-364, Sec. 858(3), inserted ",
    Hispanic-serving institutions," before "and minority institutions".
      Subsec. (c)(3). Pub. L. 109-364, Sec. 858(4), inserted ", to
    Hispanic-serving institutions," before "and to minority
    institutions" in introductory provisions.
      Subsec. (k). Pub. L. 109-163 substituted "2009" for "2006" in
    pars. (1) and (2).
      2003 - Subsec. (i)(3). Pub. L. 108-136 struck out par. (3) which
    listed certain items to be included in the report required under
    par. (1).
      2002 - Subsec. (j)(2). Pub. L. 107-296 substituted "of Homeland
    Security" for "of Transportation".
      Subsec. (k). Pub. L. 107-314 substituted "2006" for "2003" in
    pars. (1) and (2).
      2001 - Subsec. (a)(1)(C). Pub. L. 107-107 substituted "section
    365(3)" for "section 1046(3)" and "20 U.S.C. 1067k" for "20 U.S.C.
    1135d-5(3)" and struck out before period at end ", which, for the
    purposes of this section, shall include Hispanic-serving
    institutions (as defined in section 316(b)(1) of such Act (20
    U.S.C. 1059c(b)(1)))".
      1999 - Subsec. (k). Pub. L. 106-65 substituted "2003" for "2000"
    in pars. (1) and (2).
      1998 - Subsec. (e)(3). Pub. L. 105-261 designated existing
    provisions as subpar. (A), inserted ", except as provided in
    subparagraph (B)," after "the head of an agency may" in first
    sentence, and added subpar. (B).
      1997 - Subsec. (a)(1)(A). Pub. L. 105-135, Sec. 604(a)(1),
    inserted before semicolon at end ", and qualified HUBZone small
    business concerns (as defined in section 3(p) of the Small Business
    Act)".
      Subsec. (f)(1). Pub. L. 105-135, Sec. 604(a)(2), inserted "or as
    a qualified HUBZone small business concern (as defined in section
    3(p) of the Small Business Act)" after "(as described in subsection
    (a))".
      1996 - Subsec. (a)(1)(C). Pub. L. 104-106, Sec. 4321(b)(8)(A),
    inserted closing parenthesis after "1135d-5(3))" and
    "1059c(b)(1))".
      Subsec. (a)(3). Pub. L. 104-106, Sec. 4321(b)(8)(B), struck out
    "(issued under section 25(c) of the Office of Federal Procurement
    Policy Act (41 U.S.C. 421(c))" after "Acquisition Regulation".
      Subsec. (b). Pub. L. 104-106, Sec. 4321(b)(8)(C), inserted "(1)"
    after "Amount. - ".
      Subsec. (i)(3)(D). Pub. L. 104-106, Sec. 4321(b)(8)(D), added
    subpar. (D).
      1994 - Pub. L. 103-355 amended section generally to extend
    defense contract goal for small disadvantaged businesses and
    certain institutions of higher education to Coast Guard and
    National Aeronautics and Space Administration.
      1993 - Subsec. (a)(1)(B). Pub. L. 103-160, Sec. 811(a), amended
    subpar. (B) generally. Prior to amendment, subpar. (B) read as
    follows: "historically Black colleges and universities; and".
      Subsec. (a)(1)(C). Pub. L. 103-160, Sec. 811(b), amended subpar.
    (C) generally. Prior to amendment, subpar. (C) read as follows:
    "minority institutions (as defined in paragraphs (3), (4), and (5)
    of section 312(b) of the Higher Education Act of 1965 (20 U.S.C.
    1058)), including any nonprofit research institution that was an
    integral part of a historically Black college or university before
    November 14, 1986."
      Subsec. (f)(2). Pub. L. 103-160, Sec. 811(c), amended par. (2)
    generally. Prior to amendment, par. (2) read as follows: "The
    Secretary of Defense shall prescribe regulations which provide for
    the following:
        "(A) A requirement that a business which represents itself as
      an entity described in subsection (a)(1) and is seeking a
      Department of Defense contract maintain its status as an entity
      at the time of contract award.
        "(B) A prohibition on the award of a contract under this
      section to an entity described in subsection (a)(1) unless the
      entity agrees to comply with the requirements of section 15(o)(1)
      of the Small Business Act (15 U.S.C. 644(o)(1))."
      Subsec. (i). Pub. L. 103-35 amended and made technical amendment
    to directory language of Pub. L. 102-484, Sec. 801(f). See 1992
    Amendment note for subsec. (h) below.
      Subsec. (i)(3)(D). Pub. L. 103-160, Sec. 811(e), added subpar.
    (D).
      1992 - Subsec. (a)(3). Pub. L. 102-484, Sec. 801(b), added par.
    (3).
      Subsec. (e). Pub. L. 102-484, Sec. 801(c)(1), substituted
    "subsection (a):" for "subsection (a) - " in introductory
    provisions.
      Subsec. (e)(1). Pub. L. 102-484, Sec. 801(c)(2), added par. (1)
    and struck out former par. (1) which read as follows: "The
    Secretary of Defense shall exercise his utmost authority,
    resourcefulness, and diligence."
      Subsec. (e)(2). Pub. L. 102-484, Sec. 801(c)(3), inserted at end
    "The Secretary shall prescribe regulations that provide guidance to
    contracting officers for making advance payments to entities
    described in subsection (a)(1) under such section."
      Subsec. (e)(3). Pub. L. 102-484, Sec. 801(c)(4), inserted "and
    partial set asides for entities described in subsection (a)(1)"
    after "Act".
      Subsec. (e)(5). Pub. L. 102-484, Sec. 801(c)(5), added par. (5).
      Subsec. (f). Pub. L. 102-484, Sec. 801(d), substituted "Penalties
    and Regulations Relating to Status" for "Penalties for
    Misrepresentation" in heading, designated existing provisions as
    par. (1), and added par. (2).
      Subsec. (g). Pub. L. 102-484, Sec. 801(e)(2), added subsec. (g).
    Former subsec. (g) redesignated (h).
      Subsec. (h). Pub. L. 102-484, Sec. 802(2), added subsec. (h).
    Former subsec. (h) redesignated (i).
      Pub. L. 102-484, Sec. 801(f), as amended by Pub. L. 103-35,
    substituted "Report" for "Reports" in heading, struck out "July 15
    of each year, the Secretary of Defense shall submit to Congress a
    report on the progress toward meeting the goal of subsection (a)
    during the current fiscal year. (2) Not later than" after "(1) Not
    later than", struck out "final" after "Congress a", and substituted
    "Secretary toward attaining" for "Secretary with" in former par.
    (2), redesignated par. (3) as (2) and substituted "report required
    under paragraph (1) shall" for "reports described in paragraphs (1)
    and (2) shall each", redesignated par. (4) as (3) and substituted
    "report required under paragraph (1)" for "reports required under
    paragraph (2)", and struck out par. (5) which read as follows: "The
    first report required by this subsection shall be submitted between
    May 1 and May 30, 1987."
      Pub. L. 102-484, Sec. 801(e)(1), redesignated subsec. (g) as (h).
    Former subsec. (h) redesignated (i).
      Subsec. (i). Pub. L. 102-484, Sec. 802(1), redesignated subsec.
    (h) as (i). Former subsec. (i) redesignated (j).
      Pub. L. 102-484, Sec. 801(e)(1), redesignated subsec. (h) as (i).
      Subsec. (j). Pub. L. 102-484, Sec. 802(1), redesignated subsec.
    (i) as (j).

                     EFFECTIVE DATE OF 2002 AMENDMENT                 
      Amendment by Pub. L. 107-296 effective on the date of transfer of
    the Coast Guard to the Department of Homeland Security, see section
    1704(g) of Pub. L. 107-296, set out as a note under section 101 of
    this title.

                     EFFECTIVE DATE OF 1997 AMENDMENT                 
      Amendment by Pub. L. 105-135 effective Oct. 1, 1997, see section
    3 of Pub. L. 105-135 set out as a note under section 631 of Title
    15, Commerce and Trade.

                     EFFECTIVE DATE OF 1996 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 104-
    106, see section 4401 of Pub. L. 104-106, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1993 AMENDMENT                 
      Amendment by Pub. L. 103-35 applicable as if included in the
    enactment of Pub. L. 102-484, see section 202(b) of Pub. L. 103-35,
    set out as a note under section 155 of this title.

                     EFFECTIVE DATE OF 1992 AMENDMENT                 
      Section 801(f) of Pub. L. 102-484 provided that the amendment
    made by that section is effective Oct. 1, 1993.

                                REGULATIONS                            
      Section 811(d) of Pub. L. 103-160 provided that:
      "(1) The Secretary of Defense shall propose amendments to the
    Department of Defense Supplement to the Federal Acquisition
    Regulation that address the matters described in subsection (g) and
    subsection (h)(2) of section 2323 of title 10, United States Code.
      "(2) Not later than 15 days after the date of the enactment of
    this Act [Nov. 30, 1993], the Secretary shall publish such proposed
    amendments in accordance with section 22 of the Office of Federal
    Procurement Policy Act (41 U.S.C. 418b). The Secretary shall
    provide a period of at least 60 days for public comment on the
    proposed amendments.
      "(3) The Secretary shall publish the final regulations not later
    than 120 days after the date of the enactment of this Act."

-TRANS-
                           TRANSFER OF FUNCTIONS                       
      For transfer of authorities, functions, personnel, and assets of
    the Coast Guard, including the authorities and functions of the
    Secretary of Transportation relating thereto, to the Department of
    Homeland Security, and for treatment of related references, see
    sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
    Security, and the Department of Homeland Security Reorganization
    Plan of November 25, 2002, as modified, set out as a note under
    section 542 of Title 6.

-FOOTNOTE-               

    (!1) So in original. The period probably should be preceded by
         an additional closing parenthesis.

-End-

-CITE-
    10 USC Sec. 2323a                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2323a. Credit for Indian contracting in meeting certain
      subcontracting goals for small disadvantaged businesses and
      certain institutions of higher education

-STATUTE-
      (a) Regulations. - Subject to subsections (b) and (c), in any
    case in which a subcontracting goal is specified in a Department of
    Defense contract in the implementation of section 2323 of this
    title and section 8(d) of the Small Business Act (15 U.S.C.
    637(d)), credit toward meeting that subcontracting goal shall be
    given for - 
        (1) work performed in connection with that Department of
      Defense contract, and work performed in connection with any
      subcontract awarded under that Department of Defense contract, if
      such work is performed on any Indian lands and meets the
      requirements of paragraph (1) of subsection (b); or
        (2) work performed in connection with that Department of
      Defense contract, and work performed in connection with any
      subcontract awarded under that Department of Defense contract, if
      the performance of such contract or subcontract is undertaken as
      a joint venture that meets the requirements of paragraph (2) of
      that subsection.

      (b) Eligible Work. - (1) Work performed on Indian lands meets the
    requirements of this paragraph if - 
        (A) not less than 40 percent of the workers directly engaged in
      the performance of the work are Indians; or
        (B) the contractor or subcontractor has an agreement with the
      tribal government having jurisdiction over such Indian lands that
      provides goals for training and development of the Indian
      workforce and Indian management.

      (2) A joint venture undertaking to perform a contract or
    subcontract meets the requirements of this paragraph if - 
        (A) an Indian tribe or tribally owned corporation owns at least
      50 percent of the joint venture;
        (B) the activities of the joint venture under the contract or
      subcontract provide employment opportunities for Indians either
      directly or through the purchase of products or services for the
      performance of such contract or subcontract; and
        (C) the Indian tribe or tribally owned corporation manages the
      performance of such contract or subcontract.

      (c) Extent of Credit. - The amount of the credit given toward the
    attainment of any subcontracting goal under subsection (a) shall be
    - 
        (1) in the case of work performed as described in subsection
      (a)(1), the value of the work performed; and
        (2) in the case of a contract or subcontract undertaken to be
      performed by a joint venture as described in subsection (a)(2),
      an amount equal to the amount of the contract or subcontract
      multiplied by the percentage of the tribe's or tribally owned
      corporation's ownership interest in the joint venture.

      (d) Regulations. - The Secretary of Defense shall prescribe
    regulations for the implementation of this section.
      (e) Definitions. - In this section:
        (1) The term "Indian lands" has the meaning given that term by
      section 4(4) of the Indian Gaming Regulatory Act (102 Stat. 2468;
      25 U.S.C. 2703(4)).
        (2) The term "Indian" has the meaning given that term by
      section 4(d) of the Indian Self-Determination and Education
      Assistance Act (25 U.S.C. 450b(d)).
        (3) The term "Indian tribe" has the meaning given that term by
      section 4(e) of the Indian Self-Determination and Education
      Assistance Act (25 U.S.C. 450b(e)).
        (4) The term "tribally owned corporation" means a corporation
      owned entirely by an Indian tribe.

-SOURCE-
    (Added Pub. L. 102-484, div. A, title VIII, Sec. 801(g)(1), Oct.
    23, 1992, 106 Stat. 2445; amended Pub. L. 104-201, div. A, title X,
    Sec. 1074(a)(13), Sept. 23, 1996, 110 Stat. 2659.)

-COD-
                               CODIFICATION                           
      Section, as added by Pub. L. 102-484, consists of text of Pub. L.
    101-189, div. A, title VIII, Sec. 832, Nov. 29, 1989, 103 Stat.
    1508, revised by Pub. L. 102-484 by substituting "section 2323 of
    this title" for "section 1207 of the National Defense Authorization
    Act for Fiscal Year 1987 (10 U.S.C. 2301 note)" in subsec. (a).
    Section 832 of Pub. L. 101-189, which was formerly set out as a
    note under section 2301 of this title, was repealed by Pub. L. 102-
    484, div. A, title VIII, Sec. 801(h)(5), Oct. 23, 1992, 106 Stat.
    2445.

-MISC1-
                                AMENDMENTS                            
      1996 - Subsec. (a). Pub. L. 104-201, which directed amendment of
    subsec. (a) by substituting "section 2323 of this title" for
    "section 1207 of the National Defense Authorization Act for Fiscal
    Year 1987 (10 U.S.C. 2301 note)", could not be executed because the
    language "section 1207 of the National Defense Authorization Act
    for Fiscal Year 1987 (10 U.S.C. 2301 note)" did not appear. See
    Codification note above.

-End-

-CITE-
    10 USC Sec. 2324                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2324. Allowable costs under defense contracts

-STATUTE-
      (a) Indirect Cost That Violates a FAR Cost Principle. - The head
    of an agency shall require that a covered contract provide that if
    the contractor submits to the agency a proposal for settlement of
    indirect costs incurred by the contractor for any period after such
    costs have been accrued and if that proposal includes the
    submission of a cost which is unallowable because the cost violates
    a cost principle in the Federal Acquisition Regulation or
    applicable agency supplement to the Federal Acquisition Regulation,
    the cost shall be disallowed.
      (b) Penalty for Violation of Cost Principle. - (1) If the head of
    the agency determines that a cost submitted by a contractor in its
    proposal for settlement is expressly unallowable under a cost
    principle referred to in subsection (a) that defines the
    allowability of specific selected costs, the head of the agency
    shall assess a penalty against the contractor in an amount equal to
    - 
        (A) the amount of the disallowed cost allocated to covered
      contracts for which a proposal for settlement of indirect costs
      has been submitted; plus
        (B) interest (to be computed based on provisions in the Federal
      Acquisition Regulation) to compensate the United States for the
      use of any funds which a contractor has been paid in excess of
      the amount to which the contractor was entitled.

      (2) If the head of the agency determines that a proposal for
    settlement of indirect costs submitted by a contractor includes a
    cost determined to be unallowable in the case of such contractor
    before the submission of such proposal, the head of the agency
    shall assess a penalty against the contractor in an amount equal to
    two times the amount of the disallowed cost allocated to covered
    contracts for which a proposal for settlement of indirect costs has
    been submitted.
      (c) Waiver of Penalty. - The Federal Acquisition Regulation shall
    provide for a penalty under subsection (b) to be waived in the case
    of a contractor's proposal for settlement of indirect costs when - 
        (1) the contractor withdraws the proposal before the formal
      initiation of an audit of the proposal by the Federal Government
      and resubmits a revised proposal;
        (2) the amount of unallowable costs subject to the penalty is
      insignificant; or
        (3) the contractor demonstrates, to the contracting officer's
      satisfaction, that - 
          (A) it has established appropriate policies and personnel
        training and an internal control and review system that provide
        assurances that unallowable costs subject to penalties are
        precluded from being included in the contractor's proposal for
        settlement of indirect costs; and
          (B) the unallowable costs subject to the penalty were
        inadvertently incorporated into the proposal.

      (d) Applicability of Contract Disputes Procedure to Disallowance
    of Cost and Assessment of Penalty. - An action of the head of an
    agency under subsection (a) or (b) - 
        (1) shall be considered a final decision for the purposes of
      section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605);
      and
        (2) is appealable in the manner provided in section 7 of such
      Act (41 U.S.C. 606).

      (e) Specific Costs Not Allowable. - (1) The following costs are
    not allowable under a covered contract:
        (A) Costs of entertainment, including amusement, diversion, and
      social activities and any costs directly associated with such
      costs (such as tickets to shows or sports events, meals, lodging,
      rentals, transportation, and gratuities).
        (B) 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.
        (C) Costs incurred in defense of any civil or criminal fraud
      proceeding or similar proceeding (including filing of any false
      certification) brought by the United States where the contractor
      is found liable or has pleaded nolo contendere to a charge of
      fraud or similar proceeding (including filing of a false
      certification).
        (D) 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 such payments in accordance with
      applicable provisions of the Federal Acquisition Regulation.
        (E) Costs of membership in any social, dining, or country club
      or organization.
        (F) Costs of alcoholic beverages.
        (G) Contributions or donations, regardless of the recipient.
        (H) Costs of advertising designed to promote the contractor or
      its products.
        (I) Costs of promotional items and memorabilia, including
      models, gifts, and souvenirs.
        (J) Costs for travel by commercial aircraft which exceed the
      amount of the standard commercial fare.
        (K) Costs incurred in making any payment (commonly known as a
      "golden parachute payment") which is - 
          (i) in an amount in excess of the normal severance pay paid
        by the contractor to an employee upon termination of
        employment; and
          (ii) is paid to the employee contingent upon, and following,
        a change in management control over, or ownership of, the
        contractor or a substantial portion of the contractor's assets.

        (L) Costs of commercial insurance that protects against the
      costs of the contractor for correction of the contractor's own
      defects in materials or workmanship.
        (M) 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.
        (N) 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 United States military
      facility in that country at the request of the government of that
      country.
        (O) Costs incurred by a contractor in connection with any
      criminal, civil, or administrative proceeding commenced by the
      United States or a State, to the extent provided in subsection
      (k).
        (P) Costs of compensation of senior executives of contractors
      for a fiscal year, regardless of the contract funding source, to
      the extent that such compensation exceeds the benchmark
      compensation amount determined applicable for the fiscal year by
      the Administrator for Federal Procurement Policy under section 39
      of the Office of Federal Procurement Policy Act (41 U.S.C. 435).

      (2)(A) The Secretary of Defense may provide in a military banking
    contract that the provisions of paragraphs (1)(M) and (1)(N) shall
    not apply to costs incurred under the contract by the contractor
    for payment of mandated foreign national severance pay. The
    Secretary may include such a provision in a military banking
    contract only if the Secretary determines, with respect to that
    contract, that 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.
      (B) In subparagraph (A):
        (i) The term "military banking contract" means a contract
      between the Secretary and a financial institution under which the
      financial institution operates a military banking facility
      outside the United States for use by members of the armed forces
      stationed or deployed outside the United States and other
      authorized personnel.
        (ii) The term "mandated foreign national severance pay" means
      severance pay paid by a contractor to a foreign national employee
      the payment of which by the contractor is required in order 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.

      (C) Subparagraph (A) does not apply to a contract with a
    financial institution that is owned or controlled by citizens or
    nationals of a foreign country, as determined by the Secretary of
    Defense. Such a determination shall be made in accordance with the
    criteria set out in paragraph (1) of section 4(g) of the Buy
    American Act (!1) (41 U.S.C. 10b-1) and the policy guidance
    referred to in paragraph (2)(A) of that section.

      (3)(A) Pursuant to the Federal Acquisition Regulation and subject
    to the availability of appropriations, the head of an agency
    awarding a covered contract (other than a contract to which
    paragraph (2) applies) may waive the application of the provisions
    of paragraphs (1)(M) and (1)(N) to that contract if the head of the
    agency determines that - 
        (i) the application of such provisions to the contract would
      adversely affect the continuation of a program, project, or
      activity that provides significant support services for members
      of the armed forces stationed or deployed outside the United
      States;
        (ii) 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
        (iii) the payment of severance pay is necessary in order 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.

      (B) The head of an agency shall include in the solicitation for a
    covered contract a statement indicating - 
        (i) that a waiver has been granted under subparagraph (A) for
      the contract; or
        (ii) whether the head of the agency will consider granting such
      a waiver, and, if the agency head will consider granting a
      waiver, the criteria to be used in granting the waiver.

      (C) The head of an agency shall make the final determination
    regarding whether to grant a waiver under subparagraph (A) with
    respect to a covered contract before award of the contract.
      (4) The provisions of the Federal Acquisition Regulation
    implementing this section may establish appropriate definitions,
    exclusions, limitations, and qualifications.
      (f) Required Regulations. - (1) The Federal Acquisition
    Regulation shall contain provisions on the allowability of
    contractor costs. Such provisions shall define in detail and in
    specific terms those costs which are unallowable, in whole or in
    part, under covered contracts. The regulations shall, at a minimum,
    clarify the cost principles applicable to contractor costs of the
    following:
        (A) Air shows.
        (B) Membership in civic, community, and professional
      organizations.
        (C) Recruitment.
        (D) Employee morale and welfare.
        (E) 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).
        (F) Community relations.
        (G) Dining facilities.
        (H) Professional and consulting services, including legal
      services.
        (I) Compensation.
        (J) Selling and marketing.
        (K) Travel.
        (L) Public relations.
        (M) Hotel and meal expenses.
        (N) Expense of corporate aircraft.
        (O) Company-furnished automobiles.
        (P) Advertising.
        (Q) Conventions.

      (2) The Federal Acquisition Regulation shall require that a
    contracting officer not resolve any questioned costs until he has
    obtained - 
        (A) adequate documentation with respect to such costs; and
        (B) the opinion of the contract auditor on the allowability of
      such costs.

      (3) The Federal Acquisition Regulation shall provide that, to the
    maximum extent practicable, the contract auditor be present at any
    negotiation or meeting with the contractor regarding a
    determination of the allowability of indirect costs of the
    contractor.
      (4) The Federal Acquisition Regulation shall require that all
    categories of costs designated in the report of the contract
    auditor as questioned with respect to a proposal for settlement be
    resolved in such a manner that the amount of the individual
    questioned costs that are paid will be reflected in the settlement.
      (g) Applicability of Regulations to Subcontractors. - The
    regulations referred to in subsections (e) and (f)(1) shall require
    prime contractors of a covered contract, to the maximum extent
    practicable, to apply the provisions of such regulations to all
    subcontractors of the covered contract.
      (h) Contractor Certification Required. - (1) A proposal for
    settlement of indirect costs applicable to a covered contract shall
    include a certification by an official of the contractor that, to
    the best of the certifying official's knowledge and belief, all
    indirect costs included in the proposal are allowable. Any such
    certification shall be in a form prescribed in the Federal
    Acquisition Regulation.
      (2) The head of the agency or the Secretary of the military
    department concerned may, in an exceptional case, waive the
    requirement for certification under paragraph (1) in the case of
    any contract if the head of the agency or the Secretary - 
        (A) determines in such case that it would be in the interest of
      the United States to waive such certification; and
        (B) states in writing the reasons for that determination and
      makes such determination available to the public.

      (i) Penalties for Submission of Cost Known as Not Allowable. -
    The submission to an agency of a proposal for settlement of costs
    for any period after such costs have been accrued that includes a
    cost that is expressly specified by statute or regulation as being
    unallowable, with the knowledge that such cost is unallowable,
    shall be subject to the provisions of section 287 of title 18 and
    section 3729 of title 31.
      (j) Contractor To Have Burden of Proof. - In a proceeding before
    the Armed Services 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 Department of Defense is in issue, the
    burden of proof shall be upon the contractor to establish that
    those costs are reasonable.
      (k) Proceeding Costs Not Allowable. - (1) Except as otherwise
    provided in this subsection, costs incurred by a contractor in
    connection with any criminal, civil, or administrative proceeding
    commenced by the United States or a State are not allowable as
    reimbursable costs under a covered contract if the proceeding (A)
    relates to a violation of, or failure to comply with, a Federal or
    State statute or regulation, and (B) results in a disposition
    described in paragraph (2).
      (2) A disposition referred to in paragraph (1)(B) is any of the
    following:
        (A) In the case of 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 paragraph (1).
        (B) In the case of a civil or administrative proceeding
      involving an allegation of fraud or similar misconduct, a
      determination of contractor liability on the basis of the
      violation or failure referred to in paragraph (1).
        (C) In the case of any civil or administrative proceeding, the
      imposition of a monetary penalty by reason of the violation or
      failure referred to in paragraph (1).
        (D) A final decision - 
          (i) to debar or suspend the contractor;
          (ii) to rescind or void the contract; or
          (iii) to terminate the contract for default;

      by reason of the violation or failure referred to in paragraph
      (1).
        (E) A disposition of the proceeding by consent or compromise if
      such action could have resulted in a disposition described in
      subparagraph (A), (B), (C), or (D).

      (3) In the case of a proceeding referred to in paragraph (1) that
    is commenced by the United States and is resolved by consent or
    compromise pursuant to an agreement entered into by a contractor
    and the United States, the costs incurred by the contractor in
    connection with such proceeding that are otherwise not allowable as
    reimbursable costs under such paragraph may be allowed to the
    extent specifically provided in such agreement.
      (4) In the case of a proceeding referred to in paragraph (1) that
    is commenced by a State, the head of the agency or Secretary of the
    military department concerned that awarded the covered contract
    involved in the proceeding may allow the costs incurred by the
    contractor in connection with such proceeding as reimbursable costs
    if the agency head or Secretary determines, in accordance with the
    Federal Acquisition Regulation, that the costs were incurred as a
    result of (A) a specific term or condition of the contract, or (B)
    specific written instructions of the agency or military department.
      (5)(A) Except as provided in subparagraph (C), costs incurred by
    a contractor in connection with a criminal, civil, or
    administrative proceeding commenced by the United States or a State
    in connection with a covered contract may be allowed as
    reimbursable costs under the contract if such costs are not
    disallowable under paragraph (1), but only to the extent provided
    in subparagraph (B).
      (B)(i) The amount of the costs allowable under subparagraph (A)
    in any case may not exceed the amount equal to 80 percent of the
    amount of the costs incurred, to the extent that such costs are
    determined to be otherwise allowable and allocable under the
    Federal Acquisition Regulation.
      (ii) Regulations issued for the purpose of clause (i) shall
    provide for appropriate consideration of the complexity of
    procurement litigation, generally accepted principles governing the
    award of legal fees in civil actions involving the United States as
    a party, and such other factors as may be appropriate.
      (C) In the case of a proceeding referred to in subparagraph (A),
    contractor costs otherwise allowable as reimbursable costs under
    this paragraph are not allowable if (i) such proceeding involves
    the same contractor misconduct alleged as the basis of another
    criminal, civil, or administrative proceeding, and (ii) the costs
    of such other proceeding are not allowable under paragraph (1).
      (6) In this subsection:
        (A) The term "proceeding" includes an investigation.
        (B) The term "costs", with respect to a proceeding - 
          (i) means all costs incurred by a contractor, whether before
        or after the commencement of any such proceeding; and
          (ii) includes - 
            (I) administrative and clerical expenses;
            (II) the cost of legal services, including legal services
          performed by an employee of the contractor;
            (III) the cost of the services of accountants and
          consultants retained by the contractor; and
            (IV) the pay of directors, officers, and employees of the
          contractor for time devoted by such directors, officers, and
          employees to such proceeding.

        (C) The term "penalty" does not include restitution,
      reimbursement, or compensatory damages.

      (l) Definitions. - In this section:
        (1)(A) The term "covered contract" means a contract for an
      amount in excess of $500,000 that is entered into by the head of
      an agency, except that such term does not include a fixed-price
      contract without cost incentives or any firm fixed-price contract
      for the purchase of commercial items.
        (B) Effective on October 1 of each year that is divisible by
      five, the amount set forth in subparagraph (A) shall be adjusted
      to the equivalent amount in constant fiscal year 1994 dollars. An
      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 is not
      evenly divisible by $50,000, the amount shall be rounded to the
      next higher multiple of $50,000.
        (2) The term "head of the agency" or "agency head" does not
      include the Secretary of a military department.
        (3) The term "agency" means the Department of Defense, the
      Coast Guard, and the National Aeronautics and Space
      Administration.
        (4) The term "compensation", for a year, means the total amount
      of wages, salary, bonuses and deferred compensation for the year,
      whether paid, earned, or otherwise accruing, as recorded in an
      employer's cost accounting records for the year.
        (5) The term "senior executives", with respect to a contractor,
      means the five most highly compensated employees in management
      positions at each home office and each segment of the contractor.
        (6) The term "fiscal year" means a fiscal year established by a
      contractor for accounting purposes.

-SOURCE-
    (Added Pub. L. 99-145, title IX, Sec. 911(a)(1), Nov. 8, 1985, 99
    Stat. 682; amended Pub. L. 99-190, Sec. 101(b) [title VIII, Sec.
    8112(a)], Dec. 19, 1985, 99 Stat. 1185, 1223; Pub. L. 100-26, Sec.
    7(k)(3), Apr. 21, 1987, 101 Stat. 284; Pub. L. 100-180, div. A,
    title VIII, Sec. 805(a), Dec. 4, 1987, 101 Stat. 1126; Pub. L. 100-
    370, Sec. 1(f)(2)(A), (3)(A), July 19, 1988, 102 Stat. 846; Pub.
    L. 100-456, div. A, title III, Sec. 322(a), title VIII, Secs.
    826(a), 832(a), Sept. 29, 1988, 102 Stat. 1952, 2022, 2023; Pub. L.
    100-463, title VIII, Sec. 8105(a), Oct. 1, 1988, 102 Stat. 2270-36;
    Pub. L. 100-526, title I, Sec. 106(a)(2), Oct. 24, 1988, 102 Stat.
    2625; Pub. L. 100-700 Sec. 8(b), Nov. 19, 1988, 102 Stat. 4636;
    Pub. L. 101-189, div. A, title III, Sec. 311(a)(1), title VIII,
    Sec. 853(a)(1), (b)(3), Nov. 29, 1989, 103 Stat. 1411, 1518; Pub.
    L. 101-510, div. A, title XIII, Sec. 1301(10), Nov. 5, 1990, 104
    Stat. 1668; Pub. L. 102-190, div. A, title III, Sec. 346(a), Dec.
    5, 1991, 105 Stat. 1346; Pub. L. 102-484, div. A, title VIII, Sec.
    818(a), title X, Sec. 1052(26), title XIII, Sec. 1352(b), Oct. 23,
    1992, 106 Stat. 2457, 2500, 2559; Pub. L. 103-355, title II, Sec.
    2101(a)-(d), Oct. 13, 1994, 108 Stat. 3306-3308; Pub. L. 104-106,
    div. D, title XLIII, Sec. 4321(a)(5), (b)(9), Feb. 10, 1996, 110
    Stat. 671, 672; Pub. L. 105-85, div. A, title VIII, Sec. 808(a),
    Nov. 18, 1997, 111 Stat. 1836; Pub. L. 105-261, div. A, title VIII,
    Sec. 804(a), Oct. 17, 1998, 112 Stat. 2083.)

-MISC1-
                       HISTORICAL AND REVISION NOTES                   
      Subsection (e)(1)(L) is based on section 2399 of this title as
    enacted by Pub. L. 97-295, Sec. 1(29)(A), Oct. 12, 1982, 96 Stat.
    1293.
      Section 1(f)(2) of the bill would transfer the provisions of
    existing 10 U.S.C. 2399 to a new subparagraph (L) of 10 U.S.C.
    2324(e)(1). The existing section 2399 prohibits the use of
    appropriated funds to reimburse a defense contractor for insurance
    against the contractor's costs of correcting defects in the
    contractor's materials or workmanship. The transfer would add the
    provision to the list of contractor costs which are not allowable
    as expenses which may be paid by the Department of Defense under a
    contract. This allowable cost limitation applies only to contracts
    for more than $100,000 other than fixed price contracts without
    cost incentives (see 10 U.S.C. 2324(k)). The committee determined
    that it is appropriate to treat the subject matter of section 2399
    in the same manner as other provisions relating to allowable costs
    of defense contractors and notes that section 2324, providing a
    more comprehensive treatment of allowable costs, was enacted after
    section 2399. The committee recognizes that contracts for amounts
    less than $100,000 and fixed price contracts without cost
    incentives are covered by the existing section 2399 and would not
    be covered by the provision as transferred. The committee
    determined that in practice the existing section 2399 would not
    have significant applicability to such contracts and that the
    transfer is appropriate as part of this bill.
      Subsection (j) is based on Pub. L. 99-145, title IX, Sec. 933,
    Nov. 8, 1985, 99 Stat. 700.

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 4 of the Buy American Act (41 U.S.C. 10b-1), referred to
    in subsec. (e)(2)(C), was omitted from the Code in view of section
    7004 of Pub. L. 100-418 which provided that the amendment by Pub.
    L. 100-418 which enacted section 10b-1 of Title 41, Public
    Contracts, ceased to be effective on Apr. 30, 1996. Another section
    4 of the Buy American Act is classified as an Effective Date note
    under section 10c of Title 41.

-COD-
                               CODIFICATION                           
      Another section 2324 of this title was contained in chapter 138
    and was renumbered section 2344 of this title.

-MISC2-
                                AMENDMENTS                            
      1998 - Subsec. (l)(5). Pub. L. 105-261 amended par. (5)
    generally. Prior to amendment, par. (5) read as follows: "The term
    'senior executive', with respect to a contractor, means - 
        "(A) the chief executive officer of the contractor or any
      individual acting in a similar capacity for the contractor;
        "(B) the four most highly compensated employees in management
      positions of the contractor other than the chief executive
      officer; and
        "(C) in the case of a contractor that has components which
      report directly to the contractor's headquarters, the five most
      highly compensated employees in management positions at each such
      component."
      1997 - Subsec. (e)(1)(P). Pub. L. 105-85, Sec. 808(a)(1), added
    subpar. (P).
      Subsec. (l)(4) to (6). Pub. L. 105-85, Sec. 808(a)(2), added
    pars. (4) to (6).
      1996 - Subsec. (e)(2)(C). Pub. L. 104-106, Sec. 4321(b)(9)(A),
    struck out "awarding the contract" after "Secretary of Defense" and
    substituted "the Buy American Act (41 U.S.C. 10b-1)" for "title III
    of the Act of March 3, 1933 (41 U.S.C. 10b-1) (commonly referred to
    as the Buy American Act)".
      Subsec. (f)(2) to (4). Pub. L. 104-106, Sec. 4321(a)(5), made
    technical correction to directory language of Pub. L. 103-355, Sec.
    2101(a)(6)(B)(ii). See 1994 Amendment notes below.
      Subsec. (h)(2). Pub. L. 104-106, Sec. 4321(b)(9)(B), inserted
    "the head of the agency or" after "in the case of any contract if".
      1994 - Subsec. (a). Pub. L. 103-355, Sec. 2101(a), inserted
    heading and substituted "head of an agency" for "Secretary of
    Defense", "agency" for "Department of Defense", and "applicable
    agency supplement" for "the Department of Defense Supplement".
      Subsec. (b). Pub. L. 103-355, Sec. 2101(a)(2)(A), inserted
    heading.
      Subsec. (b)(1). Pub. L. 103-355, Sec. 2101(a)(2)(C), substituted
    "head of the agency" for "Secretary" in two places in introductory
    provisions.
      Subsec. (b)(1)(B). Pub. L. 103-355, Sec. 2101(a)(2)(B),
    substituted "provisions in the Federal Acquisition Regulation" for
    "regulations issued by the Secretary".
      Subsec. (b)(2). Pub. L. 103-355, Sec. 2101(a)(2)(C), substituted
    "head of the agency" for "Secretary" in two places.
      Subsec. (c). Pub. L. 103-355, Sec. 2101(a)(3), inserted heading
    and substituted "The Federal Acquisition Regulation shall provide"
    for "The Secretary shall prescribe regulations providing".
      Subsec. (d). Pub. L. 103-355, Sec. 2101(a)(4), inserted heading
    and substituted "the head of an agency" for "the Secretary" in
    introductory provisions.
      Subsec. (e). Pub. L. 103-355, Sec. 2101(a)(5)(A), inserted
    heading.
      Subsec. (e)(1)(B). Pub. L. 103-355, Sec. 2101(b), substituted ",
    a State legislature, or a legislative body of a political
    subdivision of a State" for "or a State legislature".
      Subsec. (e)(1)(D). Pub. L. 103-355, Sec. 2101(a)(5)(B),
    substituted "provisions of the Federal Acquisition Regulation" for
    "regulations of the Secretary of Defense".
      Subsec. (e)(1)(M). Pub. L. 103-355, Sec. 2101(a)(5)(C),
    substituted "the Federal Acquisition Regulation" for "regulations
    prescribed by the Secretary of Defense".
      Subsec. (e)(2)(A). Pub. L. 103-355, Sec. 2101(a)(5)(D),
    substituted "the Secretary of Defense may provide" for "the
    Secretary may provide".
      Subsec. (e)(2)(C). Pub. L. 103-355, Sec. 2101(a)(5)(E),
    substituted "Secretary of Defense" for "head of the agency".
      Subsec. (e)(3)(A). Pub. L. 103-355, Sec. 2101(a)(5)(F),
    substituted "the Federal Acquisition Regulation" for "regulations
    prescribed by the Secretary".
      Subsec. (e)(4). Pub. L. 103-355, Sec. 2101(a)(5)(G), amended par.
    (4) generally. Prior to amendment, par. (4) read as follows: "The
    Secretary shall prescribe regulations to implement this section.
    Such regulations may establish appropriate definitions, exclusions,
    limitations, and qualifications."
      Subsec. (f)(1). Pub. L. 103-355, Sec. 2101(a)(6)(A), inserted
    heading and substituted "(1) The Federal Acquisition Regulation
    shall contain provisions on the allowability of contractor costs.
    Such provisions" for "(1) The Secretary shall prescribe proposed
    regulations to amend those provisions of the Department of Defense
    Supplement to the Federal Acquisition Regulation dealing with the
    allowability of contractor costs. The amendments" and "The
    regulations" for "These regulations".
      Subsec. (f)(1)(Q). Pub. L. 103-355, Sec. 2101(c), added subpar.
    (Q).
      Subsec. (f)(2). Pub. L. 103-355, Sec. 2101(a)(6)(B)(ii), as
    amended by Pub. L. 104-106, Sec. 4321(a)(5), substituted "Federal
    Acquisition Regulation" for "regulations".
      Subsec. (f)(2)(B). Pub. L. 103-355, Sec. 2101(a)(6)(B)(i), struck
    out "defense" before "contract auditor".
      Subsec. (f)(3). Pub. L. 103-355, Sec. 2101(a)(6)(B)(ii), as
    amended by Pub. L. 104-106, Sec. 4321(a)(5), substituted "Federal
    Acquisition Regulation" for "regulations".
      Pub. L. 103-355, Sec. 2101(a)(6)(B)(i), struck out "defense"
    before "contract auditor".
      Subsec. (f)(4). Pub. L. 103-355, Sec. 2101(a)(6)(B)(ii), as
    amended by Pub. L. 104-106, Sec. 4321(a)(5), substituted "Federal
    Acquisition Regulation" for "regulations".
      Pub. L. 103-355, Sec. 2101(a)(6)(B)(i), struck out "defense"
    before "contract auditor".
      Subsec. (g). Pub. L. 103-355, Sec. 2101(a)(7), amended subsec.
    (g) generally. Prior to amendment, subsec. (g) read as follows:
    "The regulations of the Secretary required to be prescribed under
    subsections (e) and (f)(1) shall require, to the maximum extent
    practicable, that such regulations apply to all subcontractors of a
    covered contract."
      Subsec. (h). Pub. L. 103-355, Sec. 2101(a)(8), inserted heading
    and substituted "in the Federal Acquisition Regulation" for "by the
    Secretary" in par. (1) and "head of the agency" for "Secretary of
    Defense" in introductory provisions of par. (2).
      Subsec. (i). Pub. L. 103-355, Sec. 2101(a)(9), inserted heading
    and substituted "The submission to an agency" for "The submission
    to the Department of Defense".
      Subsec. (j). Pub. L. 103-355, Sec. 2101(a)(10), inserted heading
    and substituted "United States Court of Federal Claims" for "United
    States Claims Court".
      Subsec. (k). Pub. L. 103-355, Sec. 2101(a)(11)(A), inserted
    heading.
      Subsec. (k)(2)(D). Pub. L. 103-355, Sec. 2101(a)(11)(B), struck
    out "by the Department of Defense" after "decision" in introductory
    provisions.
      Subsec. (k)(4). Pub. L. 103-355, Sec. 2101(a)(11)(C), inserted
    "or Secretary of the military department concerned" after "head of
    the agency", "or Secretary" after "agency head", and "or military
    department" before period at end and substituted "in accordance
    with the Federal Acquisition Regulation" for "under regulations
    prescribed by such agency head".
      Subsec. (l). Pub. L. 103-355, Sec. 2101(d), added subsec. (l) and
    struck out former subsec. (l) which related to periodic evaluation
    by Comptroller General of implementation of this section by
    Secretary of Defense.
      Subsec. (m). Pub. L. 103-355, Sec. 2101(d), struck out subsec.
    (m) which read as follows: "In this section, the term 'covered
    contract' means a contract for an amount more than $100,000 entered
    into by the Department of Defense other than a fixed-price contract
    without cost incentives."
      1992 - Subsec. (a). Pub. L. 102-484, Sec. 818(a)(1)(A),
    redesignated subsec. (a)(1) as entire subsection. Former subsec.
    (a)(2) redesignated subsec. (b)(1).
      Subsec. (b)(1). Pub. L. 102-484, Sec. 818(a)(1)(B), redesignated
    subsec. (a)(2) as subsec. (b)(1), in introductory provisions struck
    out "by clear and convincing evidence" after "Secretary determines"
    and substituted "expressly unallowable under a cost principle
    referred to in subsection (a) that defines the allowability of
    specific selected costs" for "unallowable under paragraph (1)", and
    in subpar. (A), substituted "cost allocated to covered contracts
    for which a proposal for settlement of indirect costs has been
    submitted" for "costs". Former subsec. (b) redesignated subsec.
    (b)(2).
      Subsec. (b)(2). Pub. L. 102-484, Sec. 818(a)(2), redesignated
    subsec. (b) as subsec. (b)(2), struck out ", in addition to the
    penalty assessed under subsection (a)," after "against the
    contractor", and substituted "the amount of the disallowed cost
    allocated to covered contracts for which a proposal for settlement
    of indirect costs has been submitted" for "the amount of such
    cost".
      Subsec. (c). Pub. L. 102-484, Sec. 818(a)(5), added subsec. (c).
    Former subsec. (c) redesignated (d).
      Subsec. (d). Pub. L. 102-484, Sec. 818(a)(3), (4), redesignated
    subsec. (c) as (d) and struck out former subsec. (d) which read as
    follows: "If any penalty is assessed under subsection (a) or (b)
    with respect to a proposal for settlement of indirect costs, the
    Secretary may assess an additional penalty of not more than $10,000
    per proposal."
      Subsec. (e)(3), (4). Pub. L. 102-484, Sec. 1352(b), added par.
    (3) and redesignated former par. (3) as (4).
      Subsec. (f)(5). Pub. L. 102-484, Sec. 1052(26)(A), struck out
    par. (5) which read as follows: "The regulations shall provide that
    costs to promote the export of products of the United States
    defense industry, including costs of exhibiting or demonstrating
    products, shall be allowable to the extent that such costs - 
        "(A) are allocable, reasonable, and not otherwise unallowable;
        "(B) with respect to the activities of the business segment to
      which such costs are being allocated, are determined by the
      Secretary of Defense to be likely to result in future cost
      advantages to the United States; and
        "(C) with respect to a business segment which allocates to
      Department of Defense contracts $2,500,000 or more of such costs
      in any fiscal year of such business segment, are not in excess of
      the amount equal to 110 percent of such costs incurred by such
      business segment in the previous fiscal year."
      Subsec. (l)(2). Pub. L. 102-484, Sec. 1052(26)(B)(i), substituted
    "paragraph (3)" for "subsection (e)(2)(C)".
      Subsec. (l)(3). Pub. L. 102-484, Sec. 1052(26)(B)(ii), added par.
    (3).
      1991 - Subsec. (e)(2), (3). Pub. L. 102-190 added par. (2) and
    redesignated former par. (2) as (3).
      1990 - Subsec. (e)(2). Pub. L. 101-510 struck out "(A)" before
    "The Secretary" and struck out subpars. (B) and (C) which read as
    follows:
      "(B) The Secretary shall submit to the committees named in
    subparagraph (C) any proposed regulations that would make
    substantive changes to regulations prescribed under the second
    sentence of subparagraph (A) before the publication of such
    proposed regulations in accordance with section 22 of the Office of
    Federal Procurement Policy Act (41 U.S.C. 418b).
      "(C) The committees named in this subparagraph are - 
        "(i) the Committees on Armed Services and on Government
      Operations of the House of Representatives; and
        "(ii) the Committees on Armed Services and on Governmental
      Affairs of the Senate."
      1989 - Subsec. (e)(1)(N), (O). Pub. L. 101-189, Sec. 311(a)(1),
    added subpar. (N) and redesignated former subpar. (N) as (O).
      Subsec. (k)(5)(B)(i). Pub. L. 101-189, Sec. 853(b)(3),
    substituted "the Federal Acquisition Regulation" for "the single
    Government-wide procurement regulation issued pursuant to section
    4(4)(A) of the Office of Federal Procurement Policy Act (41 U.S.C.
    403(4)(A))".
      Subsec. (k)(6). Pub. L. 101-189, Sec. 853(a)(1)(A), designated
    par. (2) of subsec. (l), set out first, as subsec. (k)(6) and
    substituted "In this subsection:" for "In subsection (k):" in
    introductory provisions.
      Subsec. (l). Pub. L. 101-189, Sec. 853(a)(1)(A), (C), restored
    the text of subsec. (k) as in effect prior to being struck out by
    Pub. L. 100-700, Sec. 8(b)(2) (see 1988 Amendment note below),
    designated such text as subsec. (l), and struck out former subsec.
    (l)(1), set out first, which defined "covered contract". Former
    subsec. (l)(2), set out first, was redesignated subsec. (k)(6).
    Former subsec. (l), set out second, was redesignated (m).
      Subsec. (m). Pub. L. 101-189, Sec. 853(a)(1)(B), redesignated
    subsec. (l), set out second, as (m).
      1988 - Subsec. (e)(1)(L). Pub. L. 100-370, Sec. 1(f)(2)(A), added
    subpar. (L).
      Subsec. (e)(1)(M). Pub. L. 100-456, Sec. 322(a), added subpar.
    (M).
      Subsec. (e)(1)(N). Pub. L. 100-700, Sec. 8(b)(1)(A), which
    directed amendment of subsec. (e) by striking out subpar. (N) and
    inserting in lieu thereof a new subpar. (N), was executed to
    subsec. (e)(1)(N) of this section as the probable intent of
    Congress. Former subpar. (N) read as follows: "Except as provided
    in paragraph (2), costs incurred in connection with any civil,
    criminal, or administrative action brought by the United States
    that results in a determination that a contractor has violated or
    failed to comply with any Federal law or regulation if the action
    results in any of the following:
        "(i) In the case of a criminal action, a conviction (including
      a conviction pursuant to a plea of nolo contendere).
        "(ii) In the case of a civil or administrative action, (I) a
      determination by the Secretary of Defense that the violation or
      failure to comply was knowing or willful, and (II) the imposition
      of a monetary penalty.
        "(iii) A final decision by an appropriate official of the
      Department of Defense to debar or suspend the contractor or to
      rescind, void, or terminate a contract awarded to such contractor
      if such decision is based on a determination by the Secretary of
      Defense that the violation or failure to comply was knowing or
      willful."
      Pub. L. 100-456, Sec. 832(a)(1), added subpar. (N).
      Subsec. (e)(2), (3). Pub. L. 100-700, Sec. 8(b)(1)(B), (C),
    redesignated par. (3) as (2) and struck out former par. (2) which
    read as follows: "If a civil, criminal, or administrative action
    referred to in paragraph (1)(N) is resolved by consent or
    compromise pursuant to an agreement entered into by a contractor
    and the United States, the contractor's costs that are otherwise
    not allowable under paragraph (1)(N) may be allowed to the extent
    provided in such agreement."
      Pub. L. 100-456, Sec. 832(a)(2), (3), added par. (2) and
    redesignated former par. (2) as (3).
      Subsec. (f)(5). Pub. L. 100-463, Sec. 8105(a), and Pub. L. 100-
    456, Sec. 826(a), amended section identically, temporarily adding
    par. (5). Pub. L. 100-526 provided that Pub. L. 100-463, Sec. 8105,
    and amendment made by that section shall cease to be effective. See
    Effective and Termination Dates of 1988 Amendment note below.
      Subsec. (j). Pub. L. 100-370, Sec. 1(f)(3)(A)(ii), added subsec.
    (j). Former subsec. (j) redesignated (k).
      Subsec. (k). Pub. L. 100-700, Sec. 8(b)(2), added subsec. (k),
    and struck out former subsec. (k), the text of which was restored
    and redesignated subsec. (l) by Pub. L. 101-189, Sec. 853(a)(1)(C).
    See 1989 Amendment note above.
      Pub. L. 100-370, Sec. 1(f)(3)(A)(i), redesignated subsec. (j) as
    (k). Former subsec. (k) redesignated (l).
      Subsec. (l). Pub. L. 100-700, Sec. 8(b)(2), added subsec. (l)
    defining terms "covered contract", "proceeding", "costs", and
    "penalty".
      Pub. L. 100-370, Sec. 1(f)(3)(A)(i), redesignated subsec. (k) as
    (l).
      1987 - Subsec. (e)(1)(K). Pub. L. 100-180 added subpar. (K).
      Subsec. (k). Pub. L. 100-26 inserted "the term" after "In this
    section,".
      1985 - Subsec. (e)(2). Pub. L. 99-190, Sec. 101(b) [Sec.
    8112(a)(1)], designated existing provisions as subpar. (A) and
    added subpars. (B) and (C).
      Subsec. (h)(2). Pub. L. 99-190, Sec. 101(b) [Sec. 8112(a)(2)],
    inserted ", in an exceptional case," in provisions preceding
    subpar. (A).
      Subsecs. (j), (k). Pub. L. 99-190, Sec. 101(b) [Sec. 8112(a)(3)],
    added subsec. (j) and redesignated former subsec. (j) as (k).

                     EFFECTIVE DATE OF 1998 AMENDMENT                 
      Pub. L. 105-261, div. A, title VIII, Sec. 804(d), Oct. 17, 1998,
    112 Stat. 2083, provided that: "The amendments made by this section
    [amending this section, sections 256 and 435 of Title 41, Public
    Contracts, and provisions set out as a note under section 435 of
    Title 41] shall apply with respect to costs of compensation of
    senior executives incurred after January 1, 1999, under covered
    contracts (as defined in section 2324(l) of title 10, United States
    Code, and section 306(l) of the Federal Property and Administrative
    Services Act of 1949 (41 U.S.C.256(l)) entered into before, on, or
    after the date of the enactment of this Act [Oct. 17, 1998]."

                     EFFECTIVE DATE OF 1997 AMENDMENT                 
      Amendment by Pub. L. 105-85 effective on date that is 90 days
    after Nov. 18, 1997, and applicable with respect to costs of
    compensation incurred after Jan. 1, 1998, under covered contracts
    entered into before, on, or after Nov. 18, 1997, see section 808(e)
    of Pub. L. 105-85, set out as an Effective Date note under section
    435 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1996 AMENDMENT                 
      Section 4321(a) of Pub. L. 104-106 provided that the amendment
    made by that section is effective as of Oct. 13, 1994, and as if
    included in Pub. L. 103-355 as enacted.
      For effective date and applicability of amendment by section
    4321(b)(9) of Pub. L. 104-106, see section 4401 of Pub. L. 104-106,
    set out as a note under section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                     EFFECTIVE DATE OF 1992 AMENDMENTS                 
      Amendment by Pub. L. 102-572 effective Oct. 29, 1992, see section
    911 of Pub. L. 102-572, set out as a note under section 171 of
    Title 28, Judiciary and Judicial Procedure.
      Section 818(b) of Pub. L. 102-484 provided that: "The amendments
    made by subsection (a) [amending this section] shall take effect on
    the date of the enactment of this Act [Oct. 23, 1992] and shall
    apply, as provided in regulations prescribed by the Secretary of
    Defense, with respect to proposals for settlement of indirect costs
    for which the Federal Government has not formally initiated an
    audit before that date."
      Section 1352(c) of Pub. L. 102-484 provided that: "The amendments
    made by subsection (b) [amending this section] apply to covered
    contracts (as defined in section 2324 of title 10, United States
    Code) that are in effect or are entered into on or after October 1,
    1991, for costs incurred on or after October 1, 1991."

                     EFFECTIVE DATE OF 1991 AMENDMENT                 
      Section 346(b) of Pub. L. 102-190 provided that: "The amendments
    made by subsection (a) [amending this section] shall not apply with
    respect to a foreign national whose employment under a military
    banking contract (defined in section 2324(e)(2)(B) of title 10,
    United States Code, as added by subsection (a)) was terminated
    before the date of the enactment of this Act [Dec. 5, 1991]."

                     EFFECTIVE DATE OF 1989 AMENDMENT                 
      Section 311(a)(2) of Pub. L. 101-189 provided that: "Subparagraph
    (N) of such subsection [10 U.S.C. 2324(e)(1)(N)], as added by
    paragraph (1), shall not apply with respect to the termination of
    the employment of a foreign national employed under any covered
    contract (as defined in subsection (l) of such section [10 U.S.C.
    2324(l)]) if such termination is the result of the closing of, or
    the curtailment of activities at, a United States military facility
    in a foreign country pursuant to an agreement entered into with the
    government of that country before the date of the enactment of this
    Act [Nov. 29, 1989]."
      Section 853(a)(3) of Pub. L. 101-189 provided that: "The
    amendments made by this subsection [amending this section and
    provisions set out as a note below] shall take effect as of
    November 19, 1988."

            EFFECTIVE AND TERMINATION DATES OF 1988 AMENDMENTS        
      Section 8(e) of Pub. L. 100-700 provided that: "The amendments
    made by subsections (a) and (b) [enacting section 256 of Title 41,
    Public Contracts, and amending this section] shall take effect with
    respect to contracts awarded after the date of the enactment of
    this Act [Nov. 19, 1988]."
      Section 8105(d) of Pub. L. 100-463 provided that subsec. (f)(5)
    of this section, as enacted by section 8105(a) of Pub. L. 100-463,
    would cease to be effective three years after Oct. 1, 1988. Section
    106(a)(2) of Pub. L. 100-526 provided that section 8105 of Pub. L.
    100-463 "and the amendment made by that section shall cease to be
    effective".
      Section 322(b) of Pub. L. 100-456 provided that: "Subparagraph
    (M) of section 2324(e)(1) of title 10, United States Code, as added
    by subsection (a), shall apply with respect to any contract entered
    into after the end of the 180-day period beginning on the date of
    the enactment of this Act [Sept. 29, 1988]."
      Section 826(d) of Pub. L. 100-456, as amended by Pub. L. 100-526,
    title I, Sec. 106(a)(1)(B), Oct. 24, 1988, 102 Stat. 2625, provided
    that: "Section 2324(f)(5) of title 10, United States Code (as added
    by subsection (a)), shall cease to be effective on September 30,
    1991."

                     EFFECTIVE DATE OF 1987 AMENDMENT                 
      Section 805(b) of Pub. L. 100-180 provided that: "Subparagraph
    (K) of section 2324(e)(1) of title 10, United States Code, as added
    by subsection (a), shall apply to any contract entered into after
    the end of the 120-day period beginning on the date of the
    enactment of this Act [Dec. 4, 1987]."

                              EFFECTIVE DATE                          
      Section 911(c) of Pub. L. 99-145 provided that: "Section 2324 of
    title 10, United States Code, as added by subsection (a), shall
    apply only to contracts for which solicitations are issued on or
    after the date on which such regulations are prescribed."

                                REGULATIONS                            
      Section 2101(e) of Pub. L. 103-355 provided that: "The
    regulations of the Secretary of Defense implementing section 2324
    of title 10, United States Code, shall remain in effect until the
    Federal Acquisition Regulation is revised to implement the
    amendments made by this section [amending this section]."
      Section 8(d) of Pub. L. 100-700 provided that: "The regulations
    necessary for the implementation of section 306(e) of the Federal
    Property and Administrative Services Act of 1949 [41 U.S.C. 256(e)]
    (as added by subsection (a)) and section 2324(k)(5) of title 10,
    United States Code (as added by subsection (b)) - 
        "(1) shall be prescribed not later than 120 days after the date
      of the enactment of this Act [Nov. 19, 1988]; and
        "(2) shall apply to contracts entered into more than 30 days
      after the date on which such regulations are issued."
      Section 8105(b), (c) of Pub. L. 100-463 provided for the
    promulgation of regulations and the preparation of a report in
    connection with the operation of subsec. (f)(5), as enacted by
    section 8105(a) of Pub. L. 100-463. Section 106(a)(2) of Pub. L.
    100-526 provided that section 8105 of Pub. L. 100-463 "and the
    amendment made by that section shall cease to be effective".
      Section 826(b) of Pub. L. 100-456 provided that: "The Secretary
    of Defense shall prescribe final regulations under paragraph (5) of
    section 2324(f) of title 10, United States Code (as added by
    subsection (a)), not later than 90 days after the date of the
    enactment of this Act [Sept. 29, 1988]. Such regulations shall
    apply with respect to costs referred to in such paragraph that are
    incurred by a Department of Defense contractor (or a subcontractor
    of such a contractor) on or after the first day of the contractor's
    (or subcontractor's) first fiscal year that begins on or after the
    date on which such final regulations are prescribed."
      Section 832(b) of Pub. L. 100-456 related to regulations for the
    implementation of subsec. (e)(1)(N) of this section, prior to
    repeal by Pub. L. 100-700, Sec. 8(c), Nov. 19, 1988, 102 Stat.
    4638.
      Section 101(b) [title VIII, Sec. 8112(b), (c)] of Pub. L. 99-190
    required the regulations required under section 911(b) of Pub. L.
    99-145, set out below, to be submitted to Congress before the
    publication of such regulations in accordance with 41 U.S.C. 418b
    and directed the Comptroller General, within 180 days of
    publication of the regulations, to submit to Congress a report on
    the Comptroller General's initial evaluation under subsection
    (j)(1) of this section.
      Section 911(b) of Pub. L. 99-145 provided that:
      "(1) Not later than 150 days after the date of the enactment of
    this Act [Nov. 8, 1985], the Secretary of Defense shall prescribe
    the regulations required by subsections (e) and (f) of section 2324
    of title 10, United States Code, as added by subsection (a). Such
    regulations shall be published in accordance with section 22 of the
    Office of Federal Procurement Policy Act (41 U.S.C. 418b).
      "(2) The Secretary shall review such regulations at least once
    every five years. The results of each such review shall be made
    public."

-TRANS-
                           TRANSFER OF FUNCTIONS                       
      For transfer of authorities, functions, personnel, and assets of
    the Coast Guard, including the authorities and functions of the
    Secretary of Transportation relating thereto, to the Department of
    Homeland Security, and for treatment of related references, see
    sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
    Security, and the Department of Homeland Security Reorganization
    Plan of November 25, 2002, as modified, set out as a note under
    section 542 of Title 6.

-MISC3-
         REPORT AND REGULATIONS ON EXCESSIVE PASS-THROUGH CHARGES     
      Pub. L. 109-364, div. A, title VIII, Sec. 852, Oct. 17, 2006, 120
    Stat. 2340, provided that:
      "(a) Comptroller General Report on Excessive Pass-Through
    Charges. - 
        "(1) In general. - Not later than 180 days after the date of
      the enactment of this Act [Oct. 17, 2006], the Comptroller
      General shall issue a report on pass-through charges on contracts
      or subcontracts (or task or delivery orders) that are entered
      into for or on behalf of the Department of Defense.
        "(2) Matters covered. - The report issued under this subsection
      - 
          "(A) shall assess the extent to which the Department of
        Defense has paid excessive pass-through charges to contractors
        who provided little or no value to the performance of the
        contract;
          "(B) shall assess the extent to which the Department has been
        particularly vulnerable to excessive pass-through charges on
        any specific category of contracts or by any specific category
        of contractors (including any category of small business); and
          "(C) shall determine the extent to which any prohibition on
        excessive pass-through charges would be inconsistent with
        existing commercial practices for any specific category of
        contracts or have an unjustified adverse effect on any specific
        category of contractors (including any category of small
        business).
      "(b) Regulations Required. - 
        "(1) In general. - Not later than May 1, 2007, the Secretary of
      Defense shall prescribe regulations to ensure that pass-through
      charges on contracts or subcontracts (or task or delivery orders)
      that are entered into for or on behalf of the Department of
      Defense are not excessive in relation to the cost of work
      performed by the relevant contractor or subcontractor.
        "(2) Scope of regulations. - The regulations prescribed under
      this subsection - 
          "(A) shall not apply to any firm, fixed-price contract or
        subcontract (or task or delivery order) that is - 
            "(i) awarded on the basis of adequate price competition; or
            "(ii) for the acquisition of a commercial item, as defined
          in section 4(12) of the Office of Federal Procurement Policy
          Act (41 U.S.C. 403(12)); and
          "(B) may include such additional exceptions as the Secretary
        determines to be necessary in the interest of the national
        defense.
        "(3) Definition. - In this section, the term 'excessive pass-
      through charge', with respect to a contractor or subcontractor
      that adds no, or negligible, value to a contract or subcontract,
      means a charge to the Government by the contractor or
      subcontractor that is for overhead or profit on work performed by
      a lower-tier contractor or subcontractor (other than charges for
      the direct costs of managing lower-tier contracts and
      subcontracts and overhead and profit based on such direct costs).
        "(4) Report. - Not later than one year after the date of the
      enactment of this Act [Oct. 17, 2006], the Secretary of Defense
      shall submit to the congressional defense committees [Committees
      on Armed Services and Appropriations of the Senate and the House
      of Representatives] a report on the steps taken to implement the
      requirements of this subsection, including - 
          "(A) any standards for determining when no, or negligible,
        value has been added to a contract by a contractor or
        subcontractor;
          "(B) any procedures established for preventing excessive pass-
        through charges; and
          "(C) any exceptions determined by the Secretary to be
        necessary in the interest of the national defense.
        "(5) Effective date. - The regulations prescribed under this
      subsection shall apply to contracts awarded for or on behalf of
      the Department of Defense on or after May 1, 2007."

          PAYMENT OF RESTRUCTURING COSTS UNDER DEFENSE CONTRACTS      
      Pub. L. 103-337, div. A, title VIII, Sec. 818, Oct. 5, 1994, 108
    Stat. 2821, as amended by Pub. L. 105-85, div. A, title VIII, Sec.
    804(d), Nov. 18, 1997, 111 Stat. 1834, provided that:
      "[(a) Repealed. Pub. L. 105-85, div. A, title VIII, Sec. 804(d),
    Nov. 18, 1997, 111 Stat. 1834.]
      "(b) Requirement for Regulations. - Not later than January 1,
    1995, the Secretary of Defense shall prescribe regulations on the
    allowability of restructuring costs associated with business
    combinations under defense contracts.
      "(c) Matters To Be Included. - At a minimum, the regulations
    shall - 
        "(1) include a definition of the term 'restructuring costs';
      and
        "(2) address the issue of contract novations under such
      contracts.
      "(d) Consultation. - In developing the regulations, the Secretary
    of Defense shall consult with the Administrator for Federal
    Procurement Policy.
      "(e) Report. - Not later than November 13 in each of the years
    1995, 1996, and 1997, the Secretary of Defense shall submit to
    Congress a report on the following:
        "(1) A description of the procedures being followed within the
      Department of Defense for evaluating projected costs and savings
      under a defense contract resulting from a restructuring of a
      defense contractor associated with a business combination.
        "(2) A list of all defense contractors for which restructuring
      costs have been allowed by the Department, along with the
      identities of the firms which those contractors have acquired or
      with which those contractors have combined since July 21, 1993,
      that qualify the contractors for such restructuring
      reimbursement.
        "(3) The Department's experience with business combinations for
      which the Department has agreed to allow restructuring costs
      since July 21, 1993, including the following:
          "(A) The estimated amount of costs associated with each
        restructuring that have been or will be treated as allowable
        costs under defense contracts, including the type and amounts
        of costs that would not have arisen absent the business
        combination.
          "(B) The estimated amount of savings associated with each
        restructuring that are expected to be achieved on defense
        contracts.
          "(C) The types of documentation relied on to establish that
        savings associated with each restructuring will exceed costs
        associated with the restructuring.
          "(D) Actual experience on whether savings associated with
        each restructuring are exceeding costs associated with the
        restructuring.
          "(E) Identification of any programmatic or budgetary
        disruption in the Department of Defense resulting from
        contractor restructuring.
      "(f) Definition. - In this section, the term 'business
    combination' includes a merger or acquisition.
      "(g) Comptroller General Reports. - (1) Not later than March 1,
    1995, the Comptroller General shall submit to Congress a report on
    the adequacy of the regulations prescribed under subsection (b)
    with respect to - 
        "(A) whether such regulations are consistent with the purposes
      of this section, other applicable law, and the Federal
      Acquisition Regulation; and
        "(B) whether such regulations establish policies, procedures,
      and standards to ensure that restructuring costs are paid only
      when in the best interests of the United States.
      "(2) The Comptroller General shall report periodically to
    Congress on the implementation of the policy of the Department of
    Defense regarding defense industry restructuring."

    REIMBURSEMENT OF INDIRECT COSTS OF INSTITUTIONS OF HIGHER EDUCATION
                   UNDER DEPARTMENT OF DEFENSE CONTRACTS
      Pub. L. 103-160, div. A, title VIII, Sec. 841, Nov. 30, 1993, 107
    Stat. 1719, as amended by Pub. L. 105-244, title I, Sec.
    102(a)(2)(C), Oct. 7, 1998, 112 Stat. 1617, provided that:
      "(a) Prohibition. - The Secretary of Defense may not by
    regulation place a limitation on the amount that the Department of
    Defense may reimburse an institution of higher education for
    allowable indirect costs incurred by the institution for work
    performed for the Department of Defense under a Department of
    Defense contract unless that same limitation is applied uniformly
    to all other organizations performing similar work for the
    Department of Defense under Department of Defense contracts.
      "(b) Waiver. - The Secretary of Defense may waive the application
    of the prohibition in subsection (a) in the case of a particular
    institution of higher education if the governing body of the
    institution requests the waiver in order to simplify the overall
    management by that institution of cost reimbursements by the
    Department of Defense for contracts awarded by the Department to
    the institution.
      "(c) Definitions. - In this section:
        "(1) The term 'allowable indirect costs' means costs that are
      generally considered allowable as indirect costs under
      regulations that establish the cost reimbursement principles
      applicable to an institution of higher education for purposes of
      Department of Defense contracts.
        "(2) The term 'institution of higher education' has the meaning
      given such term in section 101 of the Higher Education Act of
      1965 [20 U.S.C. 1001]."

      ASSESSMENT OF REGULATIONS RELATING TO ALLOWABILITY OF COSTS TO
          PROMOTE EXPORT OF DEFENSE PRODUCTS; REPORT TO CONGRESS
      Section 826(c) of Pub. L. 100-456, as amended by Pub. L. 100-526,
    title I, Sec. 106(a)(1)(A), Oct. 24, 1988, 102 Stat. 2625, directed
    Comptroller General of United States and Inspector General of
    Department of Defense, not later than 2 years after Sept. 29, 1988,
    to submit to Congress a report including an assessment of whether
    the regulations required by subsec. (f)(5) of this section provide
    the appropriate incentives to stimulate exports by the United
    States defense industry and provide cost savings to the United
    States and whether such regulations provide appropriate criteria to
    ensure that costs allowed are reasonably likely to provide future
    cost savings to the United States.

            AIR TRAVEL EXPENSES OF DEFENSE CONTRACTOR PERSONNEL        
      Pub. L. 100-456, div. A, title VIII, Sec. 833, Sept. 29, 1988,
    102 Stat. 2024, as amended by Pub. L. 101-189, div. A, title VIII,
    Sec. 853(a)(2), Nov. 29, 1989, 103 Stat. 1518, directed the
    Administrator of General Services to enter into negotiations with
    commercial air carriers for agreements that would permit personnel
    of contractors who were traveling solely in the performance of
    covered contracts to be transported by such carriers at the same
    discount rates as such carriers charged for travel by Federal
    Government employees traveling at Government expense, directed the
    Secretary of Defense, not later than 120 days after the first such
    agreement would go into effect, to prescribe regulations that would
    provide that costs in excess of the rates established under the
    agreement were not allowable if the rate had been available and
    travel could have reasonably been performed under the conditions
    required by the air carrier to qualify for such rate, and provided
    that section 833 of Pub. L. 100-456 would cease to be effective
    three years after Sept. 29, 1988.

         BURDEN OF PROOF IN GOVERNMENT CONTRACT DISPUTE RESOLUTION     
      Section 933 of Pub. L. 99-145, which provided that in proceeding
    before the Armed Services Board of Contract Appeals, United States
    Claims Court, or any other Federal court in which reasonableness of
    indirect costs for which a contractor seeks reimbursement from
    Department of Defense is in issue, the burden of proof is upon the
    contractor to establish that such costs are reasonable, was
    repealed and restated in subsec. (j) of this section by Pub. L. 100-
    370, Sec. 1(f)(3)(A)(ii), (B), July 19, 1988, 102 Stat. 846.

-FOOTNOTE-
    (!1) See References in Text note below.

-End-

-CITE-
    10 USC Sec. 2325                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2325. Restructuring costs

-STATUTE-
      (a) Limitation on Payment of Restructuring Costs. - (1) The
    Secretary of Defense may not pay, under section 2324 of this title,
    a defense contractor for restructuring costs associated with a
    business combination of the contractor that occurs after November
    18, 1997, unless the Secretary determines in writing either - 
        (A) that the amount of projected savings for the Department of
      Defense associated with the restructuring will be at least twice
      the amount of the costs allowed; or
        (B) that the amount of projected savings for the Department of
      Defense associated with the restructuring will exceed the amount
      of the costs allowed and that the business combination will
      result in the preservation of a critical capability that
      otherwise might be lost to the Department.

      (2) The Secretary may not delegate the authority to make a
    determination under paragraph (1), with respect to a business
    combination, to an official of the Department of Defense - 
        (A) below the level of an Assistant Secretary of Defense for
      cases in which the amount of restructuring costs is expected to
      exceed $25,000,000 over a 5-year period; or
        (B) below the level of the Director of the Defense Contract
      Management Agency for all other cases.

      (b) Report. - Not later than March 1 in each of 1998, 1999, 2000,
    2001, and 2002, the Secretary of Defense shall submit to Congress a
    report that contains, with respect to business combinations
    occurring on or after August 15, 1994, the following:
        (1) For each defense contractor to which the Secretary has
      paid, under section 2324 of this title, restructuring costs
      associated with a business combination, a summary of the
      following:
          (A) An estimate of the amount of savings for the Department
        of Defense associated with the restructuring that has been
        realized as of the end of the preceding calendar year.
          (B) An estimate of the amount of savings for the Department
        of Defense associated with the restructuring that is expected
        to be achieved on defense contracts.

        (2) An identification of any business combination for which the
      Secretary has paid restructuring costs under section 2324 of this
      title during the preceding calendar year and, for each such
      business combination - 
          (A) the supporting rationale for allowing such costs;
          (B) factual information associated with the determination
        made under subsection (a) with respect to such costs; and
          (C) a discussion of whether the business combination would
        have proceeded without the payment of restructuring costs by
        the Secretary.

        (3) For business combinations of major defense contractors that
      took place during the year preceding the year of the report - 
          (A) an assessment of any potentially adverse effects that the
        business combinations could have on competition for Department
        of Defense contracts (including potential horizontal effects,
        vertical effects, and organizational conflicts of interest),
        the national technology and industrial base, or innovation in
        the defense industry; and
          (B) the actions taken to mitigate the potentially adverse
        effects.

      (c) Definition. - In this section, the term "business
    combination" includes a merger or acquisition.

-SOURCE-
    (Added Pub. L. 105-85, div. A, title VIII, Sec. 804(a)(1), Nov. 18,
    1997, 111 Stat. 1832; amended Pub. L. 106-65, div. A, title X, Sec.
    1066(a)(19), Oct. 5, 1999, 113 Stat. 771; Pub. L. 108-375, div. A,
    title VIII, Sec. 819, Oct. 28, 2004, 118 Stat. 2016.)

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2325, added Pub. L. 99-500, Sec. 101(c) [title X,
    Sec. 907(a)(1)], Oct. 18, 1986, 100 Stat. 1783-82, 1783-137, and
    Pub. L. 99-591, Sec. 101(c) [title X, Sec. 907(a)(1)], Oct. 30,
    1986, 100 Stat. 3341-82, 3341-137; Pub. L. 99-661, div. A, title
    IX, formerly title IV, Sec. 907(a)(1), Nov. 14, 1986, 100 Stat.
    3917, renumbered title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21,
    1987, 101 Stat. 273; amended Pub. L. 101-189, div. A, title XVI,
    Sec. 1622(c)(5), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 101-510,
    div. A, title VIII, Sec. 810, Nov. 5, 1990, 104 Stat. 1595; Pub. L.
    103-160, div. A, title IX, Sec. 904(d)(1), Nov. 30, 1993, 107 Stat.
    1728, directed Secretary of Defense to ensure that requirements of
    Department of Defense with respect to procurement of supplies be
    stated in terms of functions to be performed, performance required,
    or essential physical characteristics, and related to preference
    for nondevelopmental items in procurement of supplies, prior to
    repeal by Pub. L. 103-355, title VIII, Sec. 8104(b)(1), Oct. 13,
    1994, 108 Stat. 3391. See sections 2376 and 2377 of this title.
      Another prior section 2325 was renumbered section 2345 of this
    title.

                                AMENDMENTS                            
      2004 - Subsec. (a)(2). Pub. L. 108-375 substituted "paragraph
    (1), with respect to a business combination, to an official of the
    Department of Defense - " for "paragraph (1) to an official of the
    Department of Defense below the level of an Assistant Secretary of
    Defense." and added subpars. (A) and (B).
      1999 - Subsec. (a)(1). Pub. L. 106-65 inserted "that occurs after
    November 18, 1997," after "of the contractor" in introductory
    provisions.

                              EFFECTIVE DATE                          
      Section 804(c) of Pub. L. 105-85 provided that: "Section 2325(a)
    of title 10, United States Code, as added by subsection (a), shall
    apply with respect to business combinations that occur after the
    date of the enactment of this Act [Nov. 18, 1997]."

                                GAO REPORTS                            
      Pub. L. 105-85, div. A, title VIII, Sec. 804(b), Nov. 18, 1997,
    111 Stat. 1832, directed the Comptroller General, not later than
    Apr. 1, 1998, to identify major market areas affected by business
    combinations of defense contractors since Jan. 1, 1990, and develop
    a methodology for determining the savings from business
    combinations of defense contractors on the prices paid on
    particular defense contracts, and to submit to committees of
    Congress a report describing the changes in numbers of businesses
    competing for major defense contracts since Jan. 1, 1990; and
    directed the Comptroller General, not later than Dec. 1, 1998, to
    submit to committees of Congress a report containing updated
    information on restructuring costs of business combinations paid by
    the Department of Defense pursuant to certifications under Pub. L.
    103-337, Sec. 818 (set out as a note under section 2324 of this
    title), savings realized by the Department of Defense as a result
    of the business combinations for which the payment of restructuring
    costs was so certified, and an assessment of the savings on the
    prices paid on a meaningful sample of defense contracts.

-End-

-CITE-
    10 USC Sec. 2326                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2326. Undefinitized contractual actions: restrictions

-STATUTE-
      (a) In General. - The head of an agency may not enter into an
    undefinitized contractual action unless the request to the head of
    the agency for authorization of the contractual action includes a
    description of the anticipated effect on requirements of the
    military department concerned if a delay is incurred for purposes
    of determining contractual terms, specifications, and price before
    performance is begun under the contractual action.
      (b) Limitations on Obligation of Funds. - (1) A contracting
    officer of the Department of Defense may not enter into an
    undefinitized contractual action unless the contractual action
    provides for agreement upon contractual terms, specifications, and
    price by the earlier of - 
        (A) the end of the 180-day period beginning on the date on
      which the contractor submits a qualifying proposal to definitize
      the contractual terms, specifications, and price; or
        (B) the date on which the amount of funds obligated under the
      contractual action is equal to more than 50 percent of the
      negotiated overall ceiling price for the contractual action.

      (2) Except as provided in paragraph (3), the contracting officer
    for an undefinitized contractual action may not obligate with
    respect to such contractual action an amount that is equal to more
    than 50 percent of the negotiated overall ceiling price until the
    contractual terms, specifications, and price are definitized for
    such contractual action.
      (3) If a contractor submits a qualifying proposal (as defined in
    subsection (g)) to definitize an undefinitized contractual action
    before an amount equal to more than 50 percent of the negotiated
    overall ceiling price is obligated on such action, the contracting
    officer for such action may not obligate with respect to such
    contractual action an amount that is equal to more than 75 percent
    of the negotiated overall ceiling price until the contractual
    terms, specifications, and price are definitized for such
    contractual action.
      (4) The head of an agency may waive the provisions of this
    subsection with respect to a contract of that agency if that head
    of an agency determines that the waiver is necessary in order to
    support any of the following operations:
        (A) A contingency operation.
        (B) A humanitarian or peacekeeping operation.

      (5) This subsection does not apply to an undefinitized
    contractual action for the purchase of initial spares.
      (c) Inclusion of Non-Urgent Requirements. - Requirements for
    spare parts and support equipment that are not needed on an urgent
    basis may not be included in an undefinitized contractual action
    for spare parts and support equipment that are needed on an urgent
    basis unless the head of the agency approves such inclusion as
    being - 
        (1) good business practice; and
        (2) in the best interests of the United States.

      (d) Modification of Scope. - The scope of an undefinitized
    contractual action under which performance has begun may not be
    modified unless the head of the agency approves such modification
    as being - 
        (1) good business practice; and
        (2) in the best interests of the United States.

      (e) Allowable Profit. - The head of an agency shall ensure that
    the profit allowed on an undefinitized contractual action for which
    the final price is negotiated after a substantial portion of the
    performance required is completed reflects - 
        (1) the possible reduced cost risk of the contractor with
      respect to costs incurred during performance of the contract
      before the final price is negotiated; and
        (2) the reduced cost risk of the contractor with respect to
      costs incurred during performance of the remaining portion of the
      contract.

      (f) Applicability. - This section does not apply to the Coast
    Guard or the National Aeronautics and Space Administration.
      (g) Definitions. - In this section:
        (1) The term "undefinitized contractual action" means a new
      procurement action entered into by the head of an agency for
      which the contractual terms, specifications, or price are not
      agreed upon before performance is begun under the action. Such
      term does not include contractual actions with respect to the
      following:
          (A) Foreign military sales.
          (B) Purchases in an amount not in excess of the amount of the
        simplified acquisition threshold.
          (C) Special access programs.
          (D) Congressionally mandated long-lead procurement contracts.

        (2) The term "qualifying proposal" means a proposal that
      contains sufficient information to enable the Department of
      Defense to conduct complete and meaningful audits of the
      information contained in the proposal and of any other
      information that the Department is entitled to review in
      connection with the contract, as determined by the contracting
      officer.

-SOURCE-
    (Added Pub. L. 99-500, Sec. 101(c) [title X, Sec. 908(d)(1)(A)],
    Oct. 18, 1986, 100 Stat. 1783-82, 1783-140, and Pub. L. 99-591,
    Sec. 101(c) [title X, Sec. 908(d)(1)(A)], Oct. 30, 1986, 100 Stat.
    3341-82, 3341-140; Pub. L. 99-661, div. A, title IX, formerly title
    IV, Sec. 908(d)(1)(A), Nov. 14, 1986, 100 Stat. 3920, renumbered
    title IX, Pub. L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273;
    amended Pub. L. 101-189, div. A, title XVI, Sec. 1622(c)(6), Nov.
    29, 1989, 103 Stat. 1604; Pub. L. 102-25, title VII, Sec.
    701(d)(5), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103-355, title I,
    Sec. 1505, Oct. 13, 1994, 108 Stat. 3298; Pub. L. 105-85, div. A,
    title VIII, Sec. 803(a), Nov. 18, 1997, 111 Stat. 1831.)

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
      Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99-661 added
    identical sections.

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2326 was renumbered section 2346 of this title.

                                AMENDMENTS                            
      1997 - Subsec. (b)(4). Pub. L. 105-85 amended par. (4) generally.
    Prior to amendment, par. (4) read as follows: "The head of an
    agency may waive the provisions of this subsection with respect to
    a contract of that agency if such head of an agency determines that
    the waiver is necessary in order to support a contingency
    operation."
      1994 - Subsec. (b). Pub. L. 103-355, Sec. 1505(a)(1), struck out
    "and expenditure" after "obligation" in heading.
      Subsec. (b)(1)(B). Pub. L. 103-355, Sec. 1505(a)(2), struck out
    "or expended" after "obligated".
      Subsec. (b)(2). Pub. L. 103-355, Sec. 1505(a)(3), substituted
    "obligate" for "expend".
      Subsec. (b)(3). Pub. L. 103-355, Sec. 1505(a)(4), substituted
    "obligated" for "expended" and "obligate" for "expend".
      Subsec. (b)(4), (5). Pub. L. 103-355, Sec. 1505(b), added par.
    (4) and redesignated former par. (4) as (5).
      Subsec. (g)(1)(B). Pub. L. 103-355, Sec. 1505(c), substituted
    "simplified acquisition threshold" for "small purchase threshold".
      1991 - Subsec. (g)(1)(B). Pub. L. 102-25 substituted "in an
    amount not in excess of the amount of the small purchase threshold"
    for "of less than $25,000".
      1989 - Subsec. (g)(1)(D). Pub. L. 101-189 substituted
    "Congressionally mandated" for "Congressionally-mandated".

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                              EFFECTIVE DATE                          
      Section 101(c) [title X, Sec. 908(d)(2)] of Pub. L. 99-500 and
    Pub. L. 99-591, and section 908(d)(2) of title IX, formerly title
    IV, of Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec.
    3(5), Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2326 of
    title 10, United States Code (as added by subsection (d)(1)),
    applies to undefinitized contractual actions that are entered into
    after the end of the 180-day period beginning on the date of the
    enactment of this Act [Oct. 18, 1986]."

-TRANS-
                           TRANSFER OF FUNCTIONS                       
      For transfer of authorities, functions, personnel, and assets of
    the Coast Guard, including the authorities and functions of the
    Secretary of Transportation relating thereto, to the Department of
    Homeland Security, and for treatment of related references, see
    sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
    Security, and the Department of Homeland Security Reorganization
    Plan of November 25, 2002, as modified, set out as a note under
    section 542 of Title 6.

-MISC2-
     LIMITATION ON USE OF FUNDS FOR UNDEFINITIZED CONTRACTUAL ACTIONS;
             OVERSIGHT BY INSPECTOR GENERAL; WAIVER AUTHORITY
      Section 101(c) [title X, Sec. 908(a)-(c), (e)] of Pub. L. 99-500
    and Pub. L. 99-591, and section 908(a)-(c), (e) of title IX,
    formerly title IV, of Pub. L. 99-661; renumbered title IX and
    amended by Pub. L. 100-26, Secs. 3(5), 5(2), Apr. 21, 1987, 101
    Stat. 273, 274; Pub. L. 104-106, div. D, title XLIII, Sec.
    4322(b)(2), Feb. 10, 1996, 110 Stat. 677, provided that:
      "(a) Limitation on Use of Funds for Undefinitized Contractual
    Actions. - (1) On the last day of each six-month period described
    in paragraph (4), the Secretary of Defense (with respect to the
    Defense Logistics Agency) and the Secretary of each military
    department shall determine - 
        "(A) the total amount of funds obligated for contractual
      actions during the six-month period;
        "(B) the total amount of funds obligated during the six-month
      period for undefinitized contractual actions; and
        "(C) the total amount of funds obligated during the six-month
      period for undefinitized contractual actions that are not
      definitized on or before the last day of such period.
      "(2) On the last day of each six-month period described in
    paragraph (4), the amount of funds obligated for undefinitized
    contractual actions entered into by the Secretary of Defense (with
    respect to the Defense Logistics Agency) or the Secretary of a
    military department during the six-month period that are not
    definitized on or before such day may not exceed 10 percent of the
    amount of funds obligated for all contractual actions entered into
    by the Secretary during the six-month period.
      "(3) If on the last day of a six-month period described in
    paragraph (4) the total amount of funds obligated for undefinitized
    contractual actions under the jurisdiction of a Secretary that were
    entered into during the six-month period exceeds the limit
    established in paragraph (2), the Secretary - 
        "(A) shall, not later than the end of the 45-day period
      beginning on the first day following the six-month period, submit
      to the defense committees an unclassified report concerning - 
          "(i) the amount of funds obligated for contractual actions
        under the jurisdiction of the Secretary that were entered into
        during the six-month period with respect to which the report is
        submitted; and
          "(ii) the amount of such funds obligated for undefinitized
        contractual actions; and
        "(B) except with respect to the six-month period described in
      paragraph (4)(A), may not enter into any additional undefinitized
      contractual actions until the date on which the Secretary
      certifies to Congress that such limit is not exceeded by the
      cumulative amount of funds obligated for undefinitized
      contractual actions under the jurisdiction of the Secretary that
      are not definitized on or before such date and were entered into -
       
          "(i) during the six-month period for which such limit was
        exceeded; or
          "(ii) after the end of such six-month period.
      "(4) This subsection applies to the following six-month periods:
        "(A) The period beginning on October 1, 1986, and ending on
      March 31, 1987.
        "(B) The period beginning on April 1, 1987, and ending on
      September 30, 1987.
        "(C) The period beginning on October 1, 1987, and ending on
      March 31, 1988.
        "(D) The period beginning on April 1, 1988, and ending on
      September 30, 1988.
        "(E) The period beginning on October 1, 1988, and ending on
      March 31, 1989.
      "(b) Oversight by Inspector General. - The Inspector General of
    the Department of Defense shall - 
        "(1) periodically conduct an audit of contractual actions under
      the jurisdiction of the Secretary of Defense (with respect to the
      Defense Logistics Agency) and the Secretaries of the military
      departments; and
        "(2) after each audit, submit to Congress a report on the
      management of undefinitized contractual actions by each
      Secretary, including the amount of contractual actions under the
      jurisdiction of each Secretary that is represented by
      undefinitized contractual actions.
      "(c) Waiver Authority. - The Secretary of Defense may waive the
    application of subsections (a) and (b) for urgent and compelling
    considerations relating to national security or public safety if
    the Secretary notifies the Committees on Armed Services of the
    Senate and House of Representatives of such waiver before the end
    of the 30-day period beginning on the date that the waiver is made.
      "(e) Definition. - For purposes of this section, the term
    'undefinitized contractual action' has the meaning given such term
    in section 2326(g) of title 10, United States Code (as added by
    subsection (d)(1))."

-End-

-CITE-
    10 USC Sec. 2327                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2327. Contracts: consideration of national security objectives

-STATUTE-
      (a) Disclosure of Ownership or Control by a Foreign Government. -
    The head of an agency shall require a firm or a subsidiary of a
    firm that submits a bid or proposal in response to a solicitation
    issued by the Department of Defense to disclose in that bid or
    proposal any significant interest in such firm or subsidiary (or,
    in the case of a subsidiary, in the firm that owns the subsidiary)
    that is owned or controlled (whether directly or indirectly) by a
    foreign government or an agent or instrumentality of a foreign
    government, if such foreign government is the government of a
    country that the Secretary of State determines under section
    6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App.
    2405(j)(1)(A)) has repeatedly provided support for acts of
    international terrorism.
      (b) Prohibition on Entering Into Contracts Against the Interests
    of the United States. - Except as provided in subsection (c), the
    head of an agency may not enter into a contract with a firm or a
    subsidiary of a firm if - 
        (1) a foreign government owns or controls (whether directly or
      indirectly) a significant interest in such firm or subsidiary
      (or, in the case of a subsidiary, in the firm that owns the
      subsidiary); and
        (2) such foreign government is the government of a country that
      the Secretary of State determines under section 6(j)(1)(A) of the
      Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A))
      has repeatedly provided support for acts of international
      terrorism.

      (c) Waiver. - (1)(A) If the Secretary of Defense determines under
    paragraph (2) that entering into a contract with a firm or a
    subsidiary of a firm described in subsection (b) is not
    inconsistent with the national security objectives of the United
    States, the head of an agency may enter into a contract with such
    firm or subsidiary if in the best interests of the Government.
      (B) The Secretary shall maintain records of each contract entered
    into by reason of subparagraph (A). Such records shall include the
    following:
        (i) The identity of the foreign government concerned.
        (ii) The nature of the contract.
        (iii) The extent of ownership or control of the firm or
      subsidiary concerned (or, if appropriate in the case of a
      subsidiary, of the firm that owns the subsidiary) by the foreign
      government concerned or the agency or instrumentality of such
      foreign government.
        (iv) The reasons for entering into the contract.

      (2) Upon the request of the head of an agency, the Secretary of
    Defense shall determine whether entering into a contract with a
    firm or subsidiary described in subsection (b) is inconsistent with
    the national security objectives of the United States. In making
    such a determination, the Secretary of Defense shall consider the
    following:
        (A) The relationship of the United States with the foreign
      government concerned.
        (B) The obligations of the United States under international
      agreements.
        (C) The extent of the ownership or control of the firm or
      subsidiary (or, if appropriate in the case of a subsidiary, of
      the firm that owns the subsidiary) by the foreign government or
      an agent or instrumentality of the foreign government.
        (D) Whether payments made, or information made available, to
      the firm or subsidiary under the contract could be used for
      purposes hostile to the interests of the United States.

      (d) List of Firms Subject to Prohibition. - (1) The Secretary of
    Defense shall develop and maintain a list of all firms and
    subsidiaries of firms that the Secretary has identified as being
    subject to the prohibition in subsection (b).
      (2)(A) A person may request the Secretary to include on the list
    maintained under paragraph (1) any firm or subsidiary of a firm
    that the person believes to be owned or controlled by a foreign
    government described in subsection (b)(2). Upon receipt of such a
    request, the Secretary shall determine whether the conditions in
    paragraphs (1) and (2) of subsection (b) exist in the case of that
    firm or subsidiary. If the Secretary determines that such
    conditions do exist, the Secretary shall include the firm or
    subsidiary on the list.
      (B) A firm or subsidiary of a firm included on the list may
    request the Secretary to remove such firm or subsidiary from the
    list on the basis that it has been erroneously included on the list
    or its ownership circumstances have significantly changed. Upon
    receipt of such a request, the Secretary shall determine whether
    the conditions in paragraphs (1) and (2) of subsection (b) exist in
    the case of that firm or subsidiary. If the Secretary determines
    that such conditions do not exist, the Secretary shall remove the
    firm or subsidiary from the list.
      (C) The Secretary shall establish procedures to carry out this
    paragraph.
      (3) The head of an agency shall prohibit each firm or subsidiary
    of a firm awarded a contract by the agency from entering into a
    subcontract under that contract in an amount in excess of $25,000
    with a firm or subsidiary included on the list maintained under
    paragraph (1) unless there is a compelling reason to do so. In the
    case of any subcontract requiring consent by the head of an agency,
    the head of the agency shall not consent to the award of the
    subcontract to a firm or subsidiary included on such list unless
    there is a compelling reason for such approval.
      (e) Distribution of List. - The Administrator of General Services
    shall ensure that the list developed and maintained under
    subsection (d) is made available to Federal agencies and the public
    in the same manner and to the same extent as the list of suspended
    and debarred contractors compiled pursuant to subpart 9.4 of the
    Federal Acquisition Regulation.
      (f) Applicability. - (1) This section does not apply to a
    contract for an amount less than $100,000.
      (2) This section does not apply to the Coast Guard or the
    National Aeronautics and Space Administration.
      (g) Regulations. - The Secretary of Defense, after consultation
    with the Secretary of State, shall prescribe regulations to carry
    out this section. Such regulations shall include a definition of
    the term "significant interest".

-SOURCE-
    (Added Pub. L. 99-500, Sec. 101(c) [title X, Sec. 951(a)(1)], Oct.
    18, 1986, 100 Stat. 1783-82, 1783-164, and Pub. L. 99-591, Sec.
    101(c) [title X, Sec. 951(a)(1)], Oct. 30, 1986, 100 Stat. 3341-82,
    3341-164; Pub. L. 99-661, div. A, title IX, formerly title IV, Sec.
    951(a)(1), Nov. 14, 1986, 100 Stat. 3944, renumbered title IX, Pub.
    L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L.
    100-180, div. A, title XII, Sec. 1231(8), Dec. 4, 1987, 101 Stat.
    1160; Pub. L. 100-224, Sec. 5(b)(2), Dec. 30, 1987, 101 Stat. 1538;
    Pub. L. 105-85, div. A, title VIII, Sec. 843, Nov. 18, 1997, 111
    Stat. 1844; Pub. L. 108-136, div. A, title X, Sec. 1031(a)(16),
    Nov. 24, 2003, 117 Stat. 1597.)

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
      Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99-661 added
    identical sections.

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2327 was renumbered section 2347 of this title.

                                AMENDMENTS                            
      2003 - Subsec. (c)(1)(A). Pub. L. 108-136, Sec. 1031(a)(16)(A),
    substituted "if in the best interests of the Government" for "after
    the date on which such head of an agency submits to Congress a
    report on the contract".
      Subsec. (c)(1)(B). Pub. L. 108-136, Sec. 1031(a)(16)(B),
    substituted "The Secretary shall maintain records of each contract
    entered into by reason of subparagraph (A). Such records" for "A
    report under subparagraph (A)".
      Subsec. (c)(1)(C). Pub. L. 108-136, Sec. 1031(a)(16)(C), struck
    out subpar. (C) which read as follows: "After the head of an agency
    submits a report to Congress under subparagraph (A) with respect to
    a firm or a subsidiary, such head of an agency is not required to
    submit a report before entering into any subsequent contract with
    such firm or subsidiary unless the information required to be
    included in such report under subparagraph (B) has materially
    changed since the submission of the previous report."
      1997 - Subsecs. (d) to (g). Pub. L. 105-85 added subsecs. (d) and
    (e) and redesignated former subsecs. (d) and (e) as (f) and (g),
    respectively.
      1987 - Subsecs. (a), (b)(2). Pub. L. 100-224 substituted "50
    U.S.C. App." for "50 U.S.C." in parenthetical after "Export
    Administration Act of 1979".
      Subsec. (d)(1). Pub. L. 100-180 inserted par. (1) designation.

                              EFFECTIVE DATE                          
      Section 101(c) [title X, Sec. 951(c)] of Pub. L. 99-500 and Pub.
    L. 99-591, and section 951(c) of title IX, formerly title IV, of
    Pub. L. 99-661, renumbered title IX, Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273, provided that: "Section 2327 of title
    10, United States Code (as added by subsection (a)(1)), shall apply
    to contracts entered into by the Secretary of Defense after the end
    of the 90-day period beginning on the date of the enactment of this
    Act [Oct. 18, 1986]."

-TRANS-
                           TRANSFER OF FUNCTIONS                       
      For transfer of authorities, functions, personnel, and assets of
    the Coast Guard, including the authorities and functions of the
    Secretary of Transportation relating thereto, to the Department of
    Homeland Security, and for treatment of related references, see
    sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
    Security, and the Department of Homeland Security Reorganization
    Plan of November 25, 2002, as modified, set out as a note under
    section 542 of Title 6.

-MISC2-
    REPORTS BY DEFENSE CONTRACTORS OF DEALINGS WITH TERRORIST COUNTRIES
      Pub. L. 103-160, div. A, title VIII, Sec. 843, Nov. 30, 1993, 107
    Stat. 1720, as amended by Pub. L. 103-355, title VIII, Sec.
    8105(j), Oct. 13, 1994, 108 Stat. 3393, directed the Secretary of
    Defense to require any person with whom the Secretary proposed to
    enter into a contract for the provision of goods or services in an
    amount in excess of $5,000,000, to report to the Secretary each
    commercial transaction which that person had conducted with the
    government of any terrorist country during the preceding three
    years and during the course of the contract, required the Secretary
    to prescribe regulations and to submit an annual report to Congress
    setting forth those commercial transactions with terrorist
    countries that had been included in the reports made during the
    preceding fiscal year, and provided that section 843 of Pub. L. 103-
    160 would expire on Sept. 30, 1996.

-End-

-CITE-
    10 USC Sec. 2328                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2328. Release of technical data under Freedom of Information
      Act: recovery of costs

-STATUTE-
      (a) In General. - (1) The Secretary of Defense shall, if required
    to release technical data under section 552 of title 5 (relating to
    the Freedom of Information Act), release such technical data to the
    person requesting the release if the person pays all reasonable
    costs attributable to search, duplication, and review.
      (2) The Secretary of Defense shall prescribe regulations,
    pursuant to notice and receipt of public comment, specifying a
    uniform schedule of fees under this section.
      (b) Crediting of Receipts. - An amount received under this
    section - 
        (1) shall be retained by the Department of Defense or the
      element of the Department of Defense receiving the amount; and
        (2) shall be merged with and available for the same purpose and
      the same time period as the appropriation from which the costs
      incurred in complying with requests for technical data were paid.

      (c) Waiver. - The Secretary of Defense shall waive the payment of
    costs required by subsection (a) which are in an amount greater
    than the costs that would be required for such a release of
    information under section 552 of title 5 if - 
        (1) the request is made by a citizen of the United States or a
      United States corporation, and such citizen or corporation
      certifies that the technical data requested is required to enable
      such citizen or corporation to submit an offer or determine
      whether it is capable of submitting an offer to provide the
      product to which the technical data relates to the United States
      or a contractor with the United States (except that the Secretary
      may require the citizen or corporation to pay a deposit in an
      amount equal to not more than the cost of complying with the
      request, to be refunded upon submission of an offer by the
      citizen or corporation);
        (2) the release of technical data is requested in order to
      comply with the terms of an international agreement; or
        (3) the Secretary determines, in accordance with section
      552(a)(4)(A)(iii) of title 5, that such a waiver is in the
      interests of the United States.

-SOURCE-
    (Added Pub. L. 99-500, Sec. 101(c) [title X, Sec. 954(a)(1)], Oct.
    18, 1986, 100 Stat. 1783-82, 1783-172, and Pub. L. 99-591, Sec.
    101(c) [title X, Sec. 954(a)(1)], Oct. 30, 1986, 100 Stat. 3341-82,
    3341-172; Pub. L. 99-661, div. A, title IX, formerly title IV, Sec.
    954(a)(1), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub.
    L. 100-26, Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L.
    100-26, Sec. 7(a)(7)(A), (B)(i), Apr. 21, 1987, 101 Stat. 278.)

-COD-
                               CODIFICATION                           
      Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
      Pub. L. 99-500, Pub. L. 99-591, and Pub. L. 99-661 added
    identical sections.

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2328 was renumbered section 2348 of this title.

                                AMENDMENTS                            
      1987 - Pub. L. 100-26, Sec. 7(a)(7)(B)(i), substituted "Release
    of technical data under Freedom of Information Act: recovery of
    costs" for "Release of technical data" in section catchline.
      Subsec. (a)(1). Pub. L. 100-26, Sec. 7(a)(7)(A)(i)(I),
    substituted "such technical data to the person requesting the" for
    "technical data to a person requesting such a".
      Pub. L. 100-26, Sec. 7(a)(7)(A)(i)(II), substituted "search,
    duplication, and review" for "search and duplication".
      Subsec. (b). Pub. L. 100-26, Sec. 7(a)(7)(A)(ii), substituted
    "Crediting of receipts" for "Disposition of costs" in heading.
      Subsec. (c)(3). Pub. L. 100-26, Sec. 7(a)(7)(A)(iii), substituted
    "section 552(a)(4)(A)(iii)" for "section 552(a)(4)(A)".

                     EFFECTIVE DATE OF 1987 AMENDMENT                 
      Section 12(d)(2) of Pub. L. 100-26 provided that: "The amendment
    to section 2328 of such title made by section 7(a)(7)(A)(i)(II)
    shall take effect on the same date and in the same manner as
    provided in section 1804(b) of Public Law 99-570 [set out as an
    Effective Date of 1986 Amendment note under section 552 of Title 5,
    Government Organization and Employees] for the amendment made by
    section 1803 of that Public Law to section 552a of title 5, United
    States Code [probably means amendment by section 1803 of Pub. L. 99-
    570 to section 552(a) of Title 5]."

                              EFFECTIVE DATE                          
      Section 101(c) [title X, Sec. 954(b)] of Pub. L. 99-500 and Pub.
    L. 99-591, and section 954(b) of title IX, formerly title IV, of
    Pub. L. 99-661, renumbered title IX by Pub. L. 100-26, Sec. 3(5),
    Apr. 21, 1987, 101 Stat. 273, provided that: "The amendments made
    by this section [enacting this section] shall take effect at the
    end of the 90-day period beginning on the date of the enactment of
    this Act [Oct. 18, 1986]."

-End-

-CITE-
    10 USC Sec. 2329                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2329. Repealed.

-MISC1-
    [Sec. 2329. Repealed. Pub. L. 103-355, title I, Sec. 1506(a), Oct.
      13, 1994, 108 Stat. 3298].
      Section, added Pub. L. 100-180, div. A, title VIII, Sec.
    810(a)(1), Dec. 4, 1987, 101 Stat. 1130; amended Pub. L. 100-456,
    div. A, title XII, Sec. 1233(j), Sept. 29, 1988, 102 Stat. 2058;
    Pub. L. 103-160, div. A, title IX, Sec. 904(d)(1), Nov. 30, 1993,
    107 Stat. 1728, related to contract terms and conditions for
    production special tooling and production special test equipment.

-End-

-CITE-
    10 USC Sec. 2330                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2330. Procurement of contract services: management structure

-STATUTE-
      (a) Requirement for Management Structure. - The Secretary of
    Defense shall establish and implement a management structure for
    the procurement of contract services for the Department of Defense.
    The management structure shall provide, at a minimum, for the
    following:
        (1) The Under Secretary of Defense for Acquisition, Technology,
      and Logistics shall - 
          (A) develop and maintain (in consultation with the service
        acquisition executives) policies, procedures, and best
        practices guidelines addressing the procurement of contract
        services, including policies, procedures, and best practices
        guidelines for - 
            (i) acquisition planning;
            (ii) solicitation and contract award;
            (iii) requirements development and management;
            (iv) contract tracking and oversight;
            (v) performance evaluation; and
            (vi) risk management;

          (B) work with the service acquisition executives and other
        appropriate officials of the Department of Defense - 
            (i) to identify the critical skills and competencies needed
          to carry out the procurement of contract services on behalf
          of the Department of Defense;
            (ii) to develop a comprehensive strategy for recruiting,
          training, and deploying employees to meet the requirements
          for such skills and competencies; and
            (iii) to ensure that the military departments and Defense
          Agencies have staff and administrative support that are
          adequate to effectively perform their duties under this
          section;

          (C) establish contract services acquisition categories, based
        on dollar thresholds, for the purpose of establishing the level
        of review, decision authority, and applicable procedures in
        such categories; and
          (D) oversee the implementation of the requirements of this
        section and the policies, procedures, and best practices
        guidelines established pursuant to subparagraph (A).

        (2) The service acquisition executive of each military
      department shall be the senior official responsible for the
      management of acquisition of contract services for or on behalf
      of the military department.
        (3) The Under Secretary of Defense for Acquisition, Technology,
      and Logistics shall be the senior official responsible for the
      management of acquisition of contract services for or on behalf
      of the Defense Agencies and other components of the Department of
      Defense outside the military departments.

      (b) Duties and Responsibilities of Senior Officials Responsible
    for the Management of Acquisition of Contract Services. - (1)
    Except as provided in paragraph (2), the senior officials
    responsible for the management of acquisition of contract services
    shall assign responsibility for the review and approval of
    procurements in each contract services acquisition category
    established under subsection (a)(1)(C) to specific Department of
    Defense officials, subject to the direction, supervision, and
    oversight of such senior officials.
      (2) With respect to the acquisition of contract services by a
    component or command of the Department of Defense the primary
    mission of which is the acquisition of products and services, such
    acquisition shall be conducted in accordance with policies,
    procedures, and best practices guidelines developed and maintained
    by the Under Secretary of Defense for Acquisition, Technology, and
    Logistics pursuant to subsection (a)(1), subject to oversight by
    the senior officials referred to in paragraph (1).
      (3) In carrying out paragraph (1), each senior official
    responsible for the management of acquisition of contract services
    shall - 
        (A) implement the requirements of this section and the
      policies, procedures, and best practices guidelines developed by
      the Under Secretary of Defense for Acquisition, Technology, and
      Logistics pursuant to subsection (a)(1)(A);
        (B) authorize the procurement of contract services through
      contracts entered into by agencies outside the Department of
      Defense in appropriate circumstances, in accordance with the
      requirements of section 854 of the Ronald W. Reagan National
      Defense Authorization Act for Fiscal Year 2005 (10 U.S.C. 2304
      note), section 814 of the Strom Thurmond National Defense
      Authorization Act for Fiscal Year 1999 (31 U.S.C. 1535 note), and
      the regulations implementing such sections;
        (C) dedicate full-time commodity managers to coordinate the
      procurement of key categories of services;
        (D) ensure that contract services are procured by means of
      procurement actions that are in the best interests of the
      Department of Defense and are entered into and managed in
      compliance with applicable laws, regulations, directives, and
      requirements;
        (E) ensure that competitive procedures and performance-based
      contracting are used to the maximum extent practicable for the
      procurement of contract services; and
        (F) monitor data collection under section 2330a of this title,
      and periodically conduct spending analyses, to ensure that funds
      expended for the procurement of contract services are being
      expended in the most rational and economical manner practicable.

      (c) Definitions. - In this section:
        (1) The term "procurement action" includes the following
      actions:
          (A) Entry into a contract or any other form of agreement.
          (B) Issuance of a task order, delivery order, or military
        interdepartmental purchase request.

        (2) The term "contract services" includes all services acquired
      from private sector entities by or for the Department of Defense,
      other than services relating to research and development or
      military construction.

-SOURCE-
    (Added Pub. L. 107-107, div. A, title VIII, Sec. 801(b)(1), Dec.
    28, 2001, 115 Stat. 1174; amended Pub. L. 107-314, div. A, title X,
    Sec. 1062(a)(8), Dec. 2, 2002, 116 Stat. 2650; Pub. L. 109-163,
    div. A, title VIII, Sec. 812(a)(1), Jan. 6, 2006, 119 Stat. 3376.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 854 of the Ronald W. Reagan National Defense
    Authorization Act for Fiscal Year 2005, referred to in subsec.
    (b)(3)(B), is section 854 of div. A of Pub. L. 108-375, which is
    set out as a note under section 2304 of this title.
      Section 814 of the Strom Thurmond National Defense Authorization
    Act for Fiscal Year 1999, referred to in subsec. (b)(3)(B), is
    section 814 of div. A of Pub. L. 105-261, which was formerly set
    out as a note under section 1535 of Title 31, Money and Finance.

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2330, added Pub. L. 100-456, div. A, title VIII,
    Sec. 801(a)(1), Sept. 29, 1988, 102 Stat. 2007; amended Pub. L. 101-
    510, div. A, title XIV, Sec. 1484(h)(2), Nov. 5, 1990, 104 Stat.
    1717; Pub. L. 102-190, div. A, title VIII, Sec. 802(d), Dec. 5,
    1991, 105 Stat. 1414, related to integrated financing policy, prior
    to repeal by Pub. L. 102-484, div. D, title XLII, Sec. 4271(a)(1),
    Oct. 23, 1992, 106 Stat. 2695.
      Another prior section 2330 was renumbered section 2349 of this
    title.

                                AMENDMENTS                            
      2006 - Pub. L. 109-163 amended section generally. Prior to
    amendment, section consisted of subsecs. (a) to (c) relating to
    requirement for management structure, contracting responsibilities
    of designated officials, and definitions.
      2002 - Subsec. (c). Pub. L. 107-314 inserted comma after "a task
    order".

         ESTABLISHMENT AND IMPLEMENTATION OF MANAGEMENT STRUCTURE     
      Pub. L. 107-107, div. A, title VIII, Sec. 801(b)(2), Dec. 28,
    2001, 115 Stat. 1176, directed the Secretary of Defense to
    establish and implement the management structure required under
    this section and the Under Secretary of Defense for Acquisition,
    Technology, and Logistics to issue guidance for officials in such
    management structure not later than 180 days after Dec. 28, 2001.

                       PHASED IMPLEMENTATION; REPORT                   
      Pub. L. 109-163, div. A, title VIII, Sec. 812(b), (c), Jan. 6,
    2006, 119 Stat. 3378, 3379, provided that:
      "(b) Phased Implementation. - The requirements of section 2330 of
    title 10, United States Code (as added by subsection (a)), shall be
    implemented as follows:
        "(1) The Under Secretary of Defense for Acquisition,
      Technology, and Logistics shall - 
          "(A) establish an initial set of contract services
        acquisition categories, based on dollar thresholds, by not
        later than June 1, 2006; and
          "(B) issue an initial set of policies, procedures, and best
        practices guidelines in accordance with section 2330(a)(1)(A)
        by not later than October 1, 2006.
        "(2) The contract services acquisition categories established
      by the Under Secretary shall include - 
          "(A) one or more categories for acquisitions with an
        estimated value of $250,000,000 or more;
          "(B) one or more categories for acquisitions with an
        estimated value of at least $10,000,000 but less than
        $250,000,000; and
          "(C) one or more categories for acquisitions with an
        estimated value greater than the simplified acquisition
        threshold but less than $10,000,000.
        "(3) The senior officials responsible for the management of
      acquisition of contract services shall assign responsibility to
      specific individuals in the Department of Defense for the review
      and approval of procurements in the contract services acquisition
      categories established by the Under Secretary, as follows:
          "(A) Not later than October 1, 2006, for all categories
        established pursuant to paragraph (2)(A).
          "(B) Not later than October 1, 2007, for all categories
        established pursuant to paragraph (2)(B).
          "(C) Not later than October 1, 2009, for all categories
        established pursuant to paragraph (2)(C).
      "(c) Report. - Not later than one year after the date of the
    enactment of this Act [Jan. 6, 2006], the Secretary of Defense
    shall submit to the Committees on Armed Services of the Senate and
    House of Representatives a final report on the implementation of
    section 2330 of title 10, United States Code, as added by this
    section."

     PROCUREMENT PROGRAM REVIEW STRUCTURE; COMPTROLLER GENERAL REVIEW 
      Pub. L. 107-107, div. A, title VIII, Sec. 801(d)-(f), Dec. 28,
    2001, 115 Stat. 1177, provided that:
      "(d) Requirement for Program Review Structure. - (1) Not later
    than 180 days after the date of the enactment of this Act [Dec. 28,
    2001], the Secretary of Defense shall issue and implement a policy
    that applies to the procurement of services by the Department of
    Defense a program review structure that is similar to the one
    developed for and applied to the procurement of weapon systems by
    the Department of Defense.
      "(2) The program review structure for the procurement of services
    shall, at a minimum, include the following:
        "(A) Standards for determining which procurements should be
      subject to review by either the senior procurement executive of a
      military department or the senior procurement executive of the
      Department of Defense under such section, including criteria
      based on dollar thresholds, program criticality, or other
      appropriate measures.
        "(B) Appropriate key decision points at which those reviews
      should take place.
        "(C) A description of the specific matters that should be
      reviewed.
      "(e) Comptroller General Review. - Not later than 90 days after
    the date on which the Secretary issues the policy required by
    subsection (d) and the Under Secretary of Defense for Acquisition,
    Technology, and Logistics issues the guidance required by
    subsection (b)(2) [set out as a note above], the Comptroller
    General shall submit to the Committees on Armed Services of the
    Senate and the House of Representatives an assessment of the
    compliance with the requirements of this section [enacting this
    section and section 2330a of this title, amending sections 133 and
    2331 of this title, and enacting provisions set out as a note under
    this section] and the amendments made by this section.
      "(f) Definitions. - In this section:
        "(1) The term 'senior procurement executive' means the official
      designated as the senior procurement executive under section
      16(3) of the Office of Federal Procurement Policy Act ([former]
      41 U.S.C. 414(3)).
        "(2) The term 'performance-based', with respect to a contract
      or a task order means that the contract or task order,
      respectively, includes the use of performance work statements
      that set forth contract requirements in clear, specific, and
      objective terms with measurable outcomes."

              PERFORMANCE GOALS FOR PROCUREMENTS OF SERVICES          
      Pub. L. 107-107, div. A, title VIII, Sec. 802, Dec. 28, 2001, 115
    Stat. 1178, as amended by Pub. L. 107-314, div. A, title VIII, Sec.
    805, Dec. 2, 2002, 116 Stat. 2605, provided that:
      "(a) Goals. - (1) It shall be an objective of the Department of
    Defense to achieve efficiencies in procurements of services
    pursuant to multiple award contracts through the use of - 
        "(A) performance-based services contracting;
        "(B) appropriate competition for task orders under services
      contracts;
        "(C) program review, spending analyses, and improved management
      of services contracts.
      "(2) In furtherance of such objective, the Department of Defense
    shall have the following goals:
        "(A) To increase, as a percentage of all of the individual
      purchases of services made by or for the Department of Defense
      under multiple award contracts for a fiscal year (calculated on
      the basis of dollar value), the volume of the individual
      purchases of services that are made on a competitive basis and
      involve receipt of more than one offer from qualified contractors
      to a percentage as follows:
          "(i) For fiscal year 2003, a percentage not less than 40
        percent.
          "(ii) For fiscal year 2004, a percentage not less than 50
        percent.
          "(iii) For fiscal year 2011, a percentage not less than 75
        percent.
        "(B) To increase, as a percentage of all of the individual
      purchases of services made by or for the Department of Defense
      under multiple award contracts for a fiscal year (calculated on
      the basis of dollar value), the use of performance-based
      purchasing specifying firm fixed prices for the specific tasks to
      be performed to a percentage as follows:
          "(i) For fiscal year 2003, a percentage not less than 25
        percent.
          "(ii) For fiscal year 2004, a percentage not less than 35
        percent.
          "(iii) For fiscal year 2005, a percentage not less than 50
        percent.
          "(iv) For fiscal year 2011, a percentage not less than 70
        percent.
      "(3) The Secretary of Defense may adjust any percentage goal
    established in paragraph (2) if the Secretary determines in writing
    that such a goal is too high and cannot reasonably be achieved. In
    the event that the Secretary chooses to adjust such a goal, the
    Secretary shall - 
        "(A) establish a percentage goal that the Secretary determines
      would create an appropriate incentive for Department of Defense
      components to use competitive procedures or performance-based
      services contracting, as the case may be; and
        "(B) submit to the congressional defense committees [Committees
      on Armed Services and Appropriations of the Senate and the House
      of Representatives] a report containing an explanation of the
      reasons for the Secretary's determination and a statement of the
      new goal that the Secretary has established.
      "(b) Annual Report. - Not later than March 1, 2002, and annually
    thereafter through March 1, 2011, the Secretary of Defense shall
    submit to the congressional defense committees [Committees on Armed
    Services and Appropriations of the Senate and the House of
    Representatives] a report on the progress made toward meeting the
    objective and goals established in subsection (a). Each report
    shall include, at a minimum, the following information:
        "(1) A summary of the steps taken or planned to be taken in the
      fiscal year of the report to improve the management of
      procurements of services.
        "(2) A summary of the steps planned to be taken in the
      following fiscal year to improve the management of procurements
      of services.
        "(3) An estimate of the amount that will be expended by the
      Department of Defense for procurements of services in the fiscal
      year of the report.
        "(4) An estimate of the amount that will be expended by the
      Department of Defense for procurements of services in the
      following fiscal year.
        "(5) Regarding the individual purchases of services that were
      made by or for the Department of Defense under multiple award
      contracts in the fiscal year preceding the fiscal year in which
      the report is required to be submitted, information (determined
      using the data collection system established under section 2330a
      of title 10, United States Code) as follows:
          "(A) The percentage (calculated on the basis of dollar value)
        of such purchases that are purchases that were made on a
        competitive basis and involved receipt of more than one offer
        from qualified contractors.
          "(B) The percentage (calculated on the basis of dollar value)
        of such purchases that are performance-based purchases
        specifying firm fixed prices for the specific tasks to be
        performed.
      "(c) Definitions. - (1) In this section, the terms 'individual
    purchase' and 'multiple award contract' have the meanings given
    such terms in section 803(c) of this Act [10 U.S.C. 2304 note].
      "(2) For the purposes of this section, an individual purchase of
    services is made on a competitive basis only if it is made pursuant
    to procedures described in paragraphs (2), (3), and (4) of section
    803(b) of this Act [10 U.S.C. 2304 note]."

-End-

-CITE-
    10 USC Sec. 2330a                                           01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2330a. Procurement of services: tracking of purchases

-STATUTE-
      (a) Data Collection Required. - The Secretary of Defense shall
    establish a data collection system to provide management
    information with regard to each purchase of services by a military
    department or Defense Agency in excess of the simplified
    acquisition threshold, regardless of whether such a purchase is
    made in the form of a contract, task order, delivery order,
    military interdepartmental purchase request, or any other form of
    interagency agreement.
      (b) Data To Be Collected. - The data required to be collected
    under subsection (a) includes the following:
        (1) The services purchased.
        (2) The total dollar amount of the purchase.
        (3) The form of contracting action used to make the purchase.
        (4) Whether the purchase was made through - 
          (A) a performance-based contract, performance-based task
        order, or other performance-based arrangement that contains
        firm fixed prices for the specific tasks to be performed;
          (B) any other performance-based contract, performance-based
        task order, or performance-based arrangement; or
          (C) any contract, task order, or other arrangement that is
        not performance based.

        (5) In the case of a purchase made through an agency other than
      the Department of Defense, the agency through which the purchase
      is made.
        (6) The extent of competition provided in making the purchase
      and whether there was more than one offer.
        (7) Whether the purchase was made from - 
          (A) a small business concern;
          (B) a small business concern owned and controlled by socially
        and economically disadvantaged individuals; or
          (C) a small business concern owned and controlled by women.

      (c) Compatibility With Data Collection System for Information
    Technology Purchases. - To the maximum extent practicable, a single
    data collection system shall be used to collect data under this
    section and information under section 2225 of this title.
      (d) Definitions. - In this section:
        (1) The term "performance-based", with respect to a contract,
      task order, or arrangement, means that the contract, task order,
      or arrangement, respectively, includes the use of performance
      work statements that set forth contract requirements in clear,
      specific, and objective terms with measurable outcomes.
        (2) The definitions set forth in section 2225(f) of this title
      for the terms "simplified acquisition threshold", "small business
      concern", "small business concern owned and controlled by
      socially and economically disadvantaged individuals", and "small
      business concern owned and controlled by women" shall apply.

-SOURCE-
    (Added Pub. L. 107-107, div. A, title VIII, Sec. 801(c), Dec. 28,
    2001, 115 Stat. 1176.)

-End-

-CITE-
    10 USC Sec. 2331                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2331. Procurement of services: contracts for professional and
      technical services

-STATUTE-
      (a) In General. - The Secretary of Defense shall prescribe
    regulations to ensure, to the maximum extent practicable, that
    professional and technical services are acquired on the basis of
    the task to be performed rather than on the basis of the number of
    hours of services provided.
      (b) Content of Regulations. - With respect to contracts to
    acquire services on the basis of the number of hours of services
    provided, the regulations described in subsection (a) shall - 
        (1) include standards and approval procedures to minimize the
      use of such contracts;
        (2) establish criteria to ensure that proposals for contracts
      for technical and professional services are evaluated on a basis
      which does not encourage contractors to propose uncompensated
      overtime;
        (3) ensure appropriate emphasis on technical and quality
      factors in the source selection process;
        (4) require identification of any hours in excess of 40-hour
      weeks included in a proposal;
        (5) ensure that offerors are notified that proposals which
      include unrealistically low labor rates or which do not otherwise
      demonstrate cost realism will be considered in a risk assessment
      and evaluated appropriately; and
        (6) provide guidance to contracting officers to ensure that any
      use of uncompensated overtime will not degrade the level of
      technical expertise required to perform the contract.

-SOURCE-
    (Added Pub. L. 101-510, div. A, title VIII, Sec. 834(a)(1), Nov. 5,
    1990, 104 Stat. 1613; amended Pub. L. 102-25, title VII, Sec.
    701(a), Apr. 6, 1991, 105 Stat. 113; Pub. L. 103-355, title I, Sec.
    1004(c), Oct. 13, 1994, 108 Stat. 3253; Pub. L. 107-107, div. A,
    title VIII, Sec. 801(g)(1), Dec. 28, 2001, 115 Stat. 1177.)

-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 2331 was renumbered section 2350 of this title.

                                AMENDMENTS                            
      2001 - Pub. L. 107-107 substituted "Procurement of services:
    contracts" for "Contracts" in section catchline.
      1994 - Subsec. (c). Pub. L. 103-355 struck out text and heading
    of subsec. (c). Text read as follows:
      "(1) The Secretary of Defense may waive the limitation in section
    2304(j)(4) of this title on the total value of task orders for
    specific contracting activities to the extent the Secretary
    considers the use of master agreements necessary in order to
    further the policy set forth in subsection (a).
      "(2) During any fiscal year, such a waiver may not increase the
    total value of task orders under master agreements of a contracting
    activity by more than 20 percent of the value of all contracts for
    advisory and assistance services awarded by that contracting
    activity during fiscal year 1989.
      "(3) Such a waiver shall not become effective until 60 days after
    the Secretary of Defense has published notice thereof in the
    Federal Register."
      1991 - Subsec. (c)(1). Pub. L. 102-25 struck out "on a case-by-
    case basis" after "value of task orders", substituted "considers
    the use of master agreements necessary" for "considers necessary
    the use of master agreements", and struck out "of this section"
    before period at end.

                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      For effective date and applicability of amendment by Pub. L. 103-
    355, see section 10001 of Pub. L. 103-355, set out as a note under
    section 251 of Title 41, Public Contracts.

                                REGULATIONS                            
      Section 834(b) of Pub. L. 101-510 provided that: "Not later than
    180 days after the date of the enactment of this Act [Nov. 5,
    1990], the Secretary of Defense shall publish for public comment
    new regulations to carry out the requirements in this section
    [enacting this section]. The Secretary shall promulgate final
    regulations to carry out such requirements not later than 270 days
    after the date of the enactment of this Act."

                PROVISIONS NOT AFFECTED BY PUB. L. 103-355            
      Repeal of subsec. (c) of this section by Pub. L. 103-355 not to
    be construed as modifying or superseding, or as intended to impair
    or restrict, authorities or responsibilities under former 40 U.S.C.
    759 or chapter 11 of Title 40, Public Buildings, Property, and
    Works, see section 1004(d) of Pub. L. 103-355, set out as a note
    under section 2304a of this title.

-End-

-CITE-
    10 USC Sec. 2332                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2332. Share-in-savings contracts

-STATUTE-
      (a) Authority To Enter Into Share-in-Savings Contracts. - (1) The
    head of an agency may enter into a share-in-savings contract for
    information technology (as defined in section 11101(6) of title 40)
    in which the Government awards a contract to improve mission-
    related or administrative processes or to accelerate the
    achievement of its mission and share with the contractor in savings
    achieved through contract performance.
      (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) Cancellation and Termination. - (1) If funds are not made
    available for the continuation of a share-in-savings contract
    entered into under this section in a subsequent fiscal year, the
    contract shall be canceled or terminated. The costs of cancellation
    or termination may be paid out of - 
        (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 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 agencies to which
    this chapter applies in a fiscal year may not exceed 5 in each of
    fiscal years 2003, 2004, and 2005.
      (c) Definitions. - In this section:
        (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) Termination. - No share-in-savings contracts may be entered
    into under this section after September 30, 2005.

-SOURCE-
    (Added Pub. L. 107-347, title II, Sec. 210(a)(1), Dec. 17, 2002,
    116 Stat. 2932.)

-MISC1-
                              EFFECTIVE DATE                          
      Section effective 120 days after Dec. 17, 2002, see section
    402(a) of Pub. L. 107-347, set out as a note under section 3601 of
    Title 44, Public Printing and Documents.

-End-

-CITE-
    10 USC Sec. 2333                                            01/03/2007

-EXPCITE-
    TITLE 10 - ARMED FORCES
    Subtitle A - General Military Law
    PART IV - SERVICE, SUPPLY, AND PROCUREMENT
    CHAPTER 137 - PROCUREMENT GENERALLY

-HEAD-
    Sec. 2333. Joint policies on requirements definition, contingency
      program management, and contingency contracting

-STATUTE-
      (a) Joint Policy Requirement. - The Secretary of Defense, in
    consultation with the Chairman of the Joint Chiefs of Staff, shall
    develop joint policies for requirements definition, contingency
    program management, and contingency contracting during combat
    operations and post-conflict operations.
      (b) Requirements Definition Matters Covered. - The joint policy
    for requirements definition required by subsection (a) shall, at a
    minimum, provide for the following:
        (1) The assignment of a senior commissioned officer or civilian
      member of the senior executive service, with appropriate
      experience and qualifications related to the definition of
      requirements to be satisfied through acquisition contracts (such
      as for delivery of products or services, performance of work, or
      accomplishment of a project), to act as head of requirements
      definition and coordination during combat operations, post-
      conflict operations, and contingency operations, if required,
      including leading a requirements review board involving all
      organizations concerned.
        (2) An organizational approach to requirements definition and
      coordination during combat operations, post-conflict operations,
      and contingency operations that is designed to ensure that
      requirements are defined in a way that effectively implements
      United States Government and Department of Defense objectives,
      policies, and decisions regarding the allocation of resources,
      coordination of interagency efforts in the theater of operations,
      and alignment of requirements with the proper use of funds.

      (c) Contingency Program Management Matters Covered. - The joint
    policy for contingency program management required by subsection
    (a) shall, at a minimum, provide for the following:
        (1) The assignment of a senior commissioned officer or civilian
      member of the senior executive service, with appropriate program
      management experience and qualifications, to act as head of
      program management during combat operations, post-conflict
      operations, and contingency operations, including stabilization
      and reconstruction operations involving multiple United States
      Government agencies and international organizations, if required.
        (2) A preplanned organizational approach to program management
      during combat operations, post-conflict operations, and
      contingency operations that is designed to ensure that the
      Department of Defense is prepared to conduct such program
      management.
        (3) Identification of a deployable cadre of experts, with the
      appropriate tools and authority, and trained in processes under
      paragraph (6).
        (4) Utilization of the hiring and appointment authorities
      necessary for the rapid deployment of personnel to ensure the
      availability of key personnel for sufficient lengths of time to
      provide for continuing program and project management.
        (5) A requirement to provide training (including training under
      a program to be created by the Defense Acquisition University) to
      program management personnel in - 
          (A) the use of laws, regulations, policies, and directives
        related to program management in combat or contingency
        environments;
          (B) the integration of cost, schedule, and performance
        objectives into practical acquisition strategies aligned with
        available resources and subject to effective oversight; and
          (C) procedures of the Department of Defense related to
        funding mechanisms and contingency contract management.

        (6) Appropriate steps to ensure that training is maintained for
      such personnel even when they are not deployed in a contingency
      operation.
        (7) Such steps as may be needed to ensure jointness and cross-
      service coordination in the area of program management during
      contingency operations.

      (d) Contingency Contracting Matters Covered. - (1) The joint
    policy for contingency contracting required by subsection (a)
    shall, at a minimum, provide for the following:
        (A) The designation of a senior commissioned officer or
      civilian member of the senior executive service in each military
      department with the responsibility for administering the policy.
        (B) The assignment of a senior commissioned officer with
      appropriate acquisition experience and qualifications to act as
      head of contingency contracting during combat operations, post-
      conflict operations, and contingency operations, who shall
      report directly to the commander of the combatant command in
      whose area of responsibility the operations occur.
        (C) A sourcing approach to contingency contracting that is
      designed to ensure that each military department is prepared to
      conduct contingency contracting during combat operations, post-
      conflict operations, and contingency operations, including
      stabilization and reconstruction operations involving interagency
      organizations, if required.
        (D) A requirement to provide training (including training under
      a program to be created by the Defense Acquisition University) to
      contingency contracting personnel in - 
          (i) the use of law, regulations, policies, and directives
        related to contingency contracting operations;
          (ii) the appropriate use of rapid acquisition methods,
        including the use of exceptions to competition requirements
        under section 2304 of this title, sealed bidding, letter
        contracts, indefinite delivery (!1) indefinite quantity task
        orders, set asides under section 8(a) of the Small Business Act
        (15 U.S.C. 637(a)), undefinitized contract actions, and other
        tools available to expedite the delivery of goods and services
        during combat operations or post-conflict operations;

          (iii) the appropriate use of rapid acquisition authority,
        commanders' emergency response program funds, and other tools
        unique to contingency contracting; and
          (iv) instruction on the necessity for the prompt transition
        from the use of rapid acquisition authority to the use of full
        and open competition and other methods of contracting that
        maximize transparency in the acquisition process.

        (E) Appropriate steps to ensure that training is maintained for
      such personnel even when they are not deployed in a contingency
      operation.
        (F) Such steps as may be needed to ensure jointness and cross-
      service coordination in the area of contingency contracting.

      (2) To the extent practicable, the joint policy for contingency
    contracting required by subsection (a) should be taken into account
    in the development of interagency plans for stabilization and
    reconstruction operations, consistent with the report submitted by
    the President under section 1035 of this Act (!2) on interagency
    operating procedures for the planning and conduct of stabilization
    and reconstruction operations.

      (e) Definitions. - In this section:
        (1) Contingency contracting personnel. - The term "contingency
      contracting personnel" means members of the armed forces and
      civilian employees of the Department of Defense who are members
      of the defense acquisition workforce and, as part of their
      duties, are assigned to provide support to contingency operations
      (whether deployed or not).
        (2) Contingency contracting. - The term "contingency
      contracting" means all stages of the process of acquiring
      property or services by the Department of Defense during a
      contingency operation.
        (3) Contingency operation. - The term "contingency operation"
      has the meaning provided in section 101(13) (!3) of this title.

        (4) Acquisition support agencies. - The term "acquisition
      support agencies" means Defense Agencies and Department of
      Defense Field Activities that carry out and provide support for
      acquisition-related activities.
        (5) Contingency program management. - The term "contingency
      program management" means the process of planning, organizing,
      staffing, controlling, and leading the combined efforts of
      participating civilian and military personnel and organizations
      for the management of a specific defense acquisition program or
      programs during combat operations, post-conflict operations, and
      contingency operations.
        (6) Requirements definition. - The term "requirements
      definition" means the process of translating policy objectives
      and mission needs into specific requirements, the description of
      which will be the basis for awarding acquisition contracts for
      projects to be accomplished, work to be performed, or products to
      be delivered.

-SOURCE-
    (Added Pub. L. 109-364, div. A, title VIII, Sec. 854(a)(1), Oct.
    17, 2006, 120 Stat. 2343.)

-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 1035 of this Act, referred to in subsec. (d)(2), probably
    means section 1035 of Pub. L. 109-364, div. A, title X, Oct. 17,
    2006, 120 Stat. 2388, which was not classified to the Code. Section
    851(a)(1) of Pub. L. 109-364 enacted this section.

-MISC1-
                DEADLINE FOR DEVELOPMENT OF JOINT POLICIES            
      Pub. L. 109-364, div. A, title VIII, Sec. 854(b), Oct. 17, 2006,
    120 Stat. 2346, provided that: "The Secretary of Defense shall
    develop the joint policies required under section 2333 of title 10,
    United States Code, as added by subsection (a), not later than 18
    months after the date of enactment of this Act [Oct. 17, 2006]."

-FOOTNOTE-
    (!1) So in original. Probably should be followed by a comma.

    (!2) See References in Text note below.

    (!3) So in original. Probably should be "101(a)(13)".

-End-