Title 41 USCTitle 41 Online@118-34not31 yes OLRC 2023-12-19T11:29:34 USCConverter 1.7.2  Title 41 PUBLIC CONTRACTS This title was enacted by Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3677 Current through 118-34not31    Subtitle Sec.  I. FEDERAL PROCUREMENT POLICY 101  II. OTHER ADVERTISING AND CONTRACT PROVISIONS 6101  III. CONTRACT DISPUTES 7101  IV. MISCELLANEOUS 8101        Disposition Table   (Showing Disposition of Former Sections of Title 41)  Title 41 Former Sections Title 41 New Sections  1 to 4a (Previously repealed) 5, 5a 6101 6 (Previously repealed) 6a(a) 6102 6a(b) to (e) (Previously repealed) 6a(f) 6102 6a(g) (Previously repealed) 6a(h) 6102 6a(i) (Previously repealed) 6a(j) 6102 6a(k) to (n) (Previously repealed) 6a( o (Omitted) 6a(p) (Previously repealed) 6a1 6102 6a2 T. 2  1816b 6a3, 6a4 6102 6b(a), (b) Rep. 6b(c) T. 25  903g 6b(d) 6102 6b(e) Rep. 6c to 6jj (Previously repealed) 6kk Rep. 6 ll (Previously repealed) 6mm (Previously transferred to T. 41  6b(d) prior to repeal) 7 to 7d (Previously repealed) 8 6103 9 (Previously repealed) 10 Rep. 10a 8302 10b 8303 10b1 (Previously omitted) 10b2 8304 10b3 8305 10c 8301 10d 8303 11, 11a, 12, 13 6301 to 6304 13a (Previously repealed) 14 6301 15 6305 16 (Previously repealed) 16a to 16d Rep. 17 to 21 (Previously repealed) 22 to 24 6306 to 6308 24a Rep. 25 to 27 (Previously repealed) 28 to 34 Rep. 35 (matter before subsec. (a) less words related to definition of agency of the United States) 6502 35 (matter before subsec. (a) related to definition of agency of the United States) 6501 35(a) to (d) 6502 36 6503 37 6504 38 to 40 6506 to 6508 41 6501 42 6511 43 6505 43a(a) 6509 43a(b) (1st sentence) 6507 43a(b) (last sentence), (c) 6509 43b 6510 44 Rep. 45 6502 46 to 48 8502 to 8504 48a 8505 48b 8501 48c 8506 49, 50 6309 51 Rep. 52 8701 53 8702 54 8707 55 8706 56 8705 57 8703 58 8704 101, 102(a) Rep. 102(b) (Previously repealed) 103 Rep. 104(a) (Previously repealed) 104(b) to 115 Rep. 116 (Previously repealed) 117, 118(a) Rep. 118(b) (Previously repealed) 118(c) to 125 Rep. 151 to 162 (Previously repealed) 201 to 205 (Previously transferred to T. 40  471 to 475 prior to repeal) 211 to 213 (Previously transferred to T. 40  751 to 753 prior to repeal) 214 (Previously transferred to T. 44  391 prior to repeal) 215 (Previously transferred to T. 5  630c prior to repeal) 216 (Previously transferred to T. 5  630d and T. 40  754 prior to repeal) 217 (Previously transferred to T. 5  630e and T. 40  755 prior to repeal) 218 (Previously transferred to T. 5  630f prior to repeal) 219 (Previously transferred to T. 5  630g and T. 40  756 prior to repeal) 231 to 237 (Previously transferred to T. 40  481 to 488 prior to repeal) 238 (Previously transferred to T. 5  630h and T. 40  758 prior to repeal) 239 to 240 (Previously transferred to T. 40  489 to 492 prior to repeal) 251 Rep. 251 note ( Pub. L. 110252 3509 251 note ( Pub. L. 110417,  867 4711 252(a) 3101 252(b) 3104 252(c)(1) 3106 252(c)(2) 3301 252a, 252b 3101 252c 4709 253(a) 3301 253(b) 3303 253(c) to (f) 3304 253(g) 3305 253(h) 3301 253(i) 3105 253(j) 3304 253a 3306 253a note ( Pub. L. 108136,  1428 3306 253b(a), (b) 3701 253b(c) to (f) 3702 to 3705 253b(g) (related to 41:253b(e)) 3704 253b(g) (related to 41:253b(f)) 3705 253b(h) 3706 253b(i) 3707 253b(j) 3308 253b(k), ( l 3708 253b(m) 4702 253c 3311 253d 4703 253e (Previously repealed) 253f 3310 253g 4704 253h 4103 253h note ( Pub. L. 103355,  1054(b) 4102 253h note ( Pub. L. 10665,  804 4104 253h note ( Pub. L. 110417,  863(a) 3302 253i 4105 253j 4106 253k 4101 253 l 3902 253 l l 3904 253m 3309 254(a) 3901 254(b) 3905 254 note ( Pub. L. 110417,  864(a) 3906 254a 4708 254b(a) to (g) 3502 to 3508 254b(h) 3501 254b note ( Pub. L. 110417,  866 4710 254b note ( Pub. L. 110417,  868 3501 254c 3903 254d 4706 255(a) 4501 255(b), (c) 4502 255(d) to (g) 4503 to 4506 256(a) to (d) 4303 256(e) to (k) 4304 to 4310 256( l 4301 256( l 4302 256(m) 4301 256a 4707 257 4701 258 (Previously repealed) 259(a) 151 259(b) 152 259(c)(1) 111 259(c)(2) 112 259(c)(3) 114 259(c)(4) 107 259(c)(5) 113 259(c)(6) 116 259(c)(7) 109 259(c)(8), (9) 108 259(c)(10) 115 259(c)(11) 103 259(c)(12) 110 259(c)(13) 102 259(c)(14) 105 259(d) 153 259(e) 106 260 3101 261 3102 262 4701 263 3103 264 3307 264 note ( Pub. L. 103355,  8002 3307 264a (commercial item) 103 264a (nondevelopmental item) 110 264a (component) 105 264a (commercial component) 102 264b 3307 265 4705 266 3105 266a 3901 note prec. 271 to 274 (Previously transferred to T. 40  511 to 514 prior to repeal) 281 to 291 (Previously transferred to T. 44  392 to 402 prior to repeal) 321 to 322 Rep. 351(a) (words before par. (1) related to applicability) 6702 351(a) (words before par. (1) related to required contract terms), (1) to (5) 6703 351(b) 6704 352 6705 353 6707 354(a) 6706 354(b) 6705 355 6707 356 6702 357 6701 358 6707 401, 402 (Previously repealed) 403(1) 133 403(2) 111 403(3) 112 403(4) 114 403(5) 132 403(6) 107 403(7) 113 403(8) 116 403(9) 109 403(10) (item, item of supply) 108 403(10) (supplies) 115 403(11) 134 403(12) 103 403(13) 110 403(14) 105 403(15) 102 403(16) 131 403(17) 1301 404(a) 1101 404(b) 1102 405(a) to (c) 1121 405(d), (e) 1122 405(f) 1121 405(g) 1122 405(h)(1) 1130 405(h)(2) 2305 405(i) 1125 405(j) 1126 405(k) 1131 405 note ( Pub. L. 108136,  1431(b) 1129 405 note ( Pub. L. 110417,  874(a) 2311 405a (1st sentence) 1121 405a (last sentence) 1123 405b 2304 405c(a) 2303 405c(b) 2303 note 405c(c) 2303 406 1701 407 (Previously repealed) 408 1121 409 (Previously repealed) 410 1101 411 1122 412(a) 2307 412(b) 2306 413 1124 414 1702 414a 1706 414b(a) to (c) 1311 414b(d), (e) 1312 415 (Previously repealed) 416 1708 417 1712 417a 1713 417b 2313 418 1705 418a 2302 418b 1707 419 1709 420 (Previously repealed) 421(a), (b) 1302 421(c) to (f) 1303 422(a) to (e) 1501 422(f) to (h)(1) 1502 422(h)(2) to (4) 1503 422(i) Rep. 422(j) to ( l 1504 to 1506 423(a), (b) 2102 423(c) to (e) 2103 to 2105 423(f) 2101 423(g) 2106 423(h) 2107 424 (Previously repealed) 425 1304 426 2301 426a (Previously repealed) 427 1901 428 1902 428a 1903 428a note ( Pub. L. 108136,  1441 1904 429 1905 430 1906 431(a), (b) 1907 431(c) 104 431a 1908 431a note ( Pub. L. 108375,  807(c) 1908 432 1711 433 1703 433 notes ( Pub. L. 108136 1703 433 note ( Pub. L. 108136,  1414 1128 433a 1704 433a note ( Pub. L. 110417,  869 1704 434 2308 435 1127 436 2309 437 2310 438 7105 439 1710 440 2312 501 to 509 (Previously repealed) 601 7101 602, 603 7102 604, 605 7103 606 7104 607(a) to (e) 7105 607(f) 7106 607(g) 7107 608 7106 609(a) 7104 609(b) to (f) 7107 610 7105 611, 611 note ( Pub. L. 102572,  907(a)(3) 7109 612 7108 613 Rep. 701 to 705 8102 to 8106 706, 707 8101 Statutory Notes and Related Subsidiaries Enactment of Title 41, United States Code Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3677 Certain general and permanent laws of the United States, related to public contracts, are revised, codified, and enacted as title 41, United States Code, Public Contracts, as follows: Purpose; Conformity With Original Intent Pub. L. 111350,  2 Jan. 4, 2011 124 Stat. 3677  (a)  Purpose The purpose of this Act [see Tables for classification] is to enact certain laws relating to public contracts as title 41, United States Code, Public Contracts. (b)  Conformity With Original Intent In the codification of laws by this Act, the intent is to conform to the understood policy, intent, and purpose of Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections, in accordance with section 205(c)(1) of House Resolution No. 988, 93d Congress, as enacted into law by Public Law 93554 2 U.S.C. 285b(1) Transitional and Savings Provisions Pub. L. 111350,  6(a) Jan. 4, 2011 124 Stat. 3854  (a)  Cutoff Date This Act [see Tables for classification] replaces certain provisions of law enacted on or before December 31, 2008 (b)  Original Date of Enactment Unchanged For purposes of determining whether one provision of law supersedes another based on enactment later in time, the date of enactment of a provision enacted by this Act is deemed to be the date of enactment of the provision it replaced. (c)  References to Provisions Replaced A reference to a provision of law replaced by this Act, including a reference in a regulation, order, or other law, is deemed to refer to the corresponding provision enacted by this Act. (d)  Regulations, Orders, and Other Administrative Actions A regulation, order, or other administrative action in effect under a provision of law replaced by this Act continues in effect under the corresponding provision enacted by this Act. (e)  Actions Taken and Offenses Committed An action taken or an offense committed under a provision of law replaced by this Act is deemed to have been taken or committed under the corresponding provision enacted by this Act. Repeals Pub. L. 111350,  7(b) Jan. 4, 2011 124 Stat. 3855 Jan. 4, 2011 Pub. L. 111350,  7(a) Jan. 4, 2011 124 Stat. 3855 The repeal of a law by this Act [see Tables for classification] may not be construed as a legislative inference that the provision was or was not in effect before its repeal. Subtitle I Federal Procurement Policy     Division AGeneral  Chapter Sec.  1. Definitions 101   Division BOffice of Federal Procurement Policy  11. Establishment of Office and Authority and Functions of Administrator 1101  12. Federal Acquisition Institute 1201. 1 1  13. Acquisition Councils 1301  15. Cost Accounting Standards 1501  17. Agency Responsibilities and Procedures 1701  19. Simplified Acquisition Procedures 1901  21. Restrictions on Obtaining and Disclosing Certain Information 2101  23. Miscellaneous 2301   Division CProcurement  31. General 3101  33. Planning and Solicitation 3301  35. Truthful Cost or Pricing Data 3501  37. Awarding of Contracts 3701  39. Specific Types of Contracts 3901  41. Task and Delivery Order Contracts 4101  43. Allowable Costs 4301  45. Contract Financing 4501  47. Miscellaneous 4701   Editorial Notes  Amendments  2011 Pub. L. 11281, div. A, title VIII,  864(b)(2) Dec. 31, 2011 125 Stat. 1524 Division A General CHAPTER 1 DEFINITIONS    SUBCHAPTER ISUBTITLE DEFINITIONS  Sec.  101. Administrator.  102. Commercial component.  103. Commercial product.  103a. Commercial service.  104. Commercially available off-the-shelf item.  105. Component.  106. Federal Acquisition Regulation.  107. Full and open competition.  108. Item and item of supply.  109. Major system.  110. Nondevelopmental item.  111. Procurement.  112. Procurement system.  113. Responsible source.  114. Standards.  115. Supplies.  116. Technical data.  SUBCHAPTER IIDIVISION B DEFINITIONS  131. Acquisition.  132. Competitive procedures.  133. Executive agency.  134. Simplified acquisition threshold.  SUBCHAPTER IIIDIVISION C DEFINITIONS  151. Agency head.  152. Competitive procedures.  153. Simplified acquisition threshold for contract in support of humanitarian or peacekeeping operation.  Editorial Notes Amendments 2018 Pub. L. 115232, div. A, title VIII,  836(a)(3) Aug. 13, 2018 132 Stat. 1860 SUBCHAPTER I SUBTITLE DEFINITIONS  101. Administrator  In this subtitle, the term Administrator means the Administrator for Federal Procurement Policy appointed under section 1102 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3678        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  101 no source. Statutory Notes and Related Subsidiaries Short Title of 2021 Amendment Pub. L. 11728,  1 July 26, 2021 135 Stat. 304 This Act [amending provisions set out as a note under section 3309 of this title Short Title of 2020 Amendment Pub. L. 116260, div. U, title IV,  401 Dec. 27, 2020 134 Stat. 2292 This title [enacting provisions set out as a note under section 3309 of this title Short Title of 2018 Amendment Pub. L. 115390,  1(a) Dec. 21, 2018 132 Stat. 5173 This Act [enacting subchapter III of chapter 13 of this title and section 4713 of this title section 3348 of Title 50 section 663 of Title 6 section 3553 of Title 44 Pub. L. 115390, title II,  201 Dec. 21, 2018 132 Stat. 5178 This title [enacting subchapter III of chapter 13 of this title and section 4713 of this title section 3553 of Title 44 Short Title of 2016 Amendment Pub. L. 114260,  1 Dec. 14, 2016 130 Stat. 1361 This Act [amending section 4106 of this title Short Title of 2012 Amendment Pub. L. 112194,  1 Oct. 5, 2012 126 Stat. 1445 This Act [enacting section 1909 of this title section 2784 of Title 10 section 1909 of this title section 5701 of Title 5 section 5701 of Title 5 Short Title of 2008 Act Pub. L. 110417 Oct. 14, 2008 122 Stat. 4546 This subtitle [subtitle G ( 861874) of title VIII of Pub. L. 110417 Pub. L. 110252, title VI,  6101 June 30, 2008 122 Stat. 2386 This chapter [chapter 1 ( 61016103) of title VI of Pub. L. 110252 Short Title of 2003 Act Pub. L. 108136, div. A, title XIV,  1401 Nov. 24, 2003 117 Stat. 1663 This title [see Tables for classification] may be cited as the Services Acquisition Reform Act of 2003. Short Title of 1996 Act Pub. L. 104106, div. D,  4001 Feb. 10, 1996 110 Stat. 642 Pub. L. 104208, div. A, title I,  101(f) [title VIII,  808(a)] Sept. 30, 1996 110 Stat. 3009314 This division [div. D ( 40014402) of Pub. L. 104106 Pub. L. 104106 Pub. L. 107217 Aug. 21, 2002 116 Stat. 1062 Short Title of 1994 Act Pub. L. 103355,  1 Oct. 13, 1994 108 Stat. 3243 This Act [see Tables for classification] may be cited as the Federal Acquisition Streamlining Act of 1994. Short Title of 1988 Act Pub. L. 100679,  1 Nov. 17, 1988 102 Stat. 4055 This Act [see Tables for classification] may be cited as the Office of Federal Procurement Policy Act Amendments of 1988. Pub. L. 100418, title VII,  7001 Aug. 23, 1988 102 Stat. 1545 This title [see Tables for classification] may be cited as the Buy American Act of 1988. Short Title of 1986 Act Pub. L. 99634,  1 Nov. 7, 1986 100 Stat. 3523 That this Act [see Tables for classification] may be cited as the Anti-Kickback Enforcement Act of 1986. Short Title of 1984 Act Pub. L. 98577,  1 Oct. 30, 1984 98 Stat. 3066 Pub. L. 98369, div. B, title VII,  2701 July 18, 1984 98 Stat. 1175 This title [see Tables for classification] may be cited as the Competition in Contracting Act of 1984. Short Title of 1983 Act Pub. L. 98191,  1 Dec. 1, 1983 97 Stat. 1325 That this Act [see Tables for classification] may be cited as the Office of Federal Procurement Policy Act Amendments of 1983. Short Title of 1979 Act Pub. L. 9683,  1(a) Oct. 10, 1979 93 Stat. 648 This Act [see Tables for classification] may be cited as the Office of Federal Procurement Policy Act Amendments of 1979. Short Title of 1974 Act Pub. L. 93400,  1(a) Aug. 30, 1974 88 Stat. 796 Pub. L. 103355, title X,  10005(a)(1) Oct. 13, 1994 108 Stat. 3406 This Act [see Tables for classification] may be cited as the Office of Federal Procurement Policy Act. Short Title of 1949 Act Act June 30, 1949, ch. 288,  1(a) 63 Stat. 377 Pub. L. 103355, title X,  10005(a)(2) Oct. 13, 1994 108 Stat. 3406 Pub. L. 107217,  6(b) Aug. 21, 2002 116 Stat. 1304 Pub. L. 108178,  2(b)(1) Dec. 15, 2003 117 Stat. 2640 This Act [see Tables for classification] may be cited as the Federal Property and Administrative Services Act of 1949. [ Pub. L. 107217,  6(b) June 30, 1949 Aug. 21, 2002 Pub. L. 108178,  2(b)(1) June 30, 1949 Pub. L. 108178,  2(b)(1) June 30, 1949 Pub. L. 107217,  6(b) Short Title of 1936 Act Act June 30, 1936, ch. 881,  14 Pub. L. 103355, title X,  10005(f)(5) Oct. 13, 1994 108 Stat. 3409 Pub. L. 104106, div. D, title XLIII,  4321(f)(1)(B) Feb. 10, 1996 110 Stat. 675 This Act [see Tables for classification] may be cited as the Walsh-Healey Act. Short Title of 1933 Act Act Mar. 3, 1933, ch. 212, title III,  7 Pub. L. 103355, title X,  10005(f)(4) Oct. 13, 1994 108 Stat. 3409 Pub. L. 104106, div. D, title XLIII,  4321(a)(11) Feb. 10, 1996 110 Stat. 671 This title [see Tables for classification] may be cited as the Buy American Act.  102. Commercial component  In this subtitle, the term commercial component means a component that is a commercial product. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3678 Pub. L. 115232, div. A, title VIII,  836(a)(2)(A) Aug. 13, 2018 132 Stat. 1860        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  102 41:259(c)(13). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:264a (commercial component). June 30, 1949, ch. 288 Pub. L. 103355, title VIII,  8202 Oct. 13, 1994 108 Stat. 3394  41:403(15). Pub. L. 93400,  4(15) Pub. L. 103355, title VIII,  8001(a) Oct. 13, 1994 108 Stat. 3386 Editorial Notes Amendments 2018 Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  103. Commercial product In this subtitle, the term commercial product means any of the following: (1) A product, other than real property, that (A) is of a type customarily used by the general public or by nongovernmental entities for purposes other than governmental purposes; and (B) has been sold, leased, or licensed, or offered for sale, lease, or license, to the general public. (2) A product that (A) evolved from a product described in paragraph (1) through advances in technology or performance; and (B) is not yet available in the commercial marketplace but will be available in the commercial marketplace in time to satisfy the delivery requirements under a Federal Government solicitation. (3) A product that would satisfy the criteria in paragraph (1) or (2) were it not for (A) modifications of a type customarily available in the commercial marketplace; or (B) minor modifications made to meet Federal Government requirements. (4) Any combination of products meeting the requirements of paragraph (1), (2), or (3) that are of a type customarily combined and sold in combination to the general public. (5) A product, or combination of products, referred to in paragraphs (1) through (4), even though the product, or combination of products, is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor. (6) A nondevelopmental item if the procuring agency determines, in accordance with conditions in the Federal Acquisition Regulation, that (A) the product was developed exclusively at private expense; and (B) has been sold in substantial quantities, on a competitive basis, to multiple State and local governments or to multiple foreign governments. (Added Pub. L. 115232, div. A, title VIII,  836(a)(1) Aug. 13, 2018 132 Stat. 1859  Editorial Notes Prior Provisions A prior section 103, Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3679 Pub. L. 11591, div. A, title VIII,  847(a) Dec. 12, 2017 131 Stat. 1487 Pub. L. 115232, div. A, title VIII,  836(a)(1) Aug. 13, 2018 132 Stat. 1859 Jan. 1, 2020 Statutory Notes and Related Subsidiaries Effective Date Section effective, and repeal of former section 103 effective, on Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  103a. Commercial service In this subtitle, the term commercial service means any of the following: (1) Installation services, maintenance services, repair services, training services, and other services if (A) those services are procured for support of a commercial product, regardless of whether the services are provided by the same source or at the same time as the commercial product; and (B) the source of the services provides similar services contemporaneously to the general public under terms and conditions similar to those offered to the Federal Government; (2) Services of a type offered and sold competitively, in substantial quantities, in the commercial marketplace (A) based on established catalog or market prices; (B) for specific tasks performed or specific outcomes to be achieved; and (C) under standard commercial terms and conditions. (3) A service described in paragraph (1) or (2), even though the service is transferred between or among separate divisions, subsidiaries, or affiliates of a contractor. (Added Pub. L. 115232, div. A, title VIII,  836(a)(1) Aug. 13, 2018 132 Stat. 1860  Statutory Notes and Related Subsidiaries Effective Date Section effective Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  104. Commercially available off-the-shelf item In this subtitle, the term commercially available off-the-shelf item (1) means an item that (A) is a commercial product (as described in section 103(1) of this title (B) is sold in substantial quantities in the commercial marketplace; and (C) is offered to the Federal Government, without modification, in the same form in which it is sold in the commercial marketplace; but (2) does not include bulk cargo, as defined in section 40102(4) of title 46 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3679 Pub. L. 115232, div. A, title VIII,  836(a)(2)(B) Aug. 13, 2018 132 Stat. 1860 Pub. L. 116283, div. A, title X,  1081(d)(4)(A) Jan. 1, 2021 134 Stat. 3874        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  104 41:431(c). Pub. L. 93400,  35(c) Pub. L. 104106, title XLII,  4203(a) Feb. 10, 1996 110 Stat. 655 In paragraph (2), the words  section 40102(4) of title 46 section 18(c) of Public Law 109304 Editorial Notes Amendments 2021Par. (1)(A). Pub. L. 116283,  1081(d)(4)(A) Pub. L. 115232,  836(a)(2)(B) 2018Par. (1)(A). Pub. L. 115232 Pub. L. 116283,  1081(d)(4)(A) Statutory Notes and Related Subsidiaries Effective Date of 2021 Amendment Pub. L. 116283, div. A, title X,  1081(d) Jan. 1, 2021 134 Stat. 3873 section 836(a)(2)(B) of Pub. L. 115232 Aug. 13, 2018 Pub. L. 115232 Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  105. Component  In this subtitle, the term component means an item supplied to the Federal Government as part of an end item or of another component. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3680        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  105 41:259(c)(14). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:264a (component). June 30, 1949, ch. 288 Pub. L. 103355, title VIII,  8202 Oct. 13, 1994 108 Stat. 3394  41:403(14). Pub. L. 93400,  4(14) Pub. L. 103355, title VIII,  8001(a) Oct. 13, 1994 108 Stat. 3386  106. Federal Acquisition Regulation  In this subtitle, the term Federal Acquisition Regulation means the regulation issued under section 1303(a)(1) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3680        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  106 41:259(e). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299 The defined term is made applicable to the subtitle because of the numerous references throughout the Office of Federal Procurement Policy Act ( Public Law 93400 88 Stat. 796  107. Full and open competition  In this subtitle, the term full and open competition, when used with respect to a procurement, means that all responsible sources are permitted to submit sealed bids or competitive proposals on the procurement. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3680        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  107 41:259(c)(4). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:403(6). Pub. L. 93400,  4(6) Pub. L. 98369, title VII,  2731(3) July 18, 1984 98 Stat. 1195 Pub. L. 98577, title I,  102(1) Oct. 30, 1984 98 Stat. 3067 Pub. L. 100679,  3(c) Nov. 17, 1988 102 Stat. 4056 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  108. Item and item of supply In this subtitle, the terms item and item of supply (1) mean an individual part, component, subassembly, assembly, or subsystem integral to a major system, and other property which may be replaced during the service life of the system, including spare parts and replenishment spare parts; but (2) do not include packaging or labeling associated with shipment or identification of an item. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3680        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  108 41:259(c)(8), (9). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:403(10) (item, item of supply). Pub. L. 93400,  4(10) Pub. L. 98577, title I,  102(3) Oct. 30, 1984 98 Stat. 3067 Pub. L. 100679,  3(c) Nov. 17, 1988 102 Stat. 4056 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  109. Major system (a)  In General In this subtitle, the term major system means a combination of elements that will function together to produce the capabilities required to fulfill a mission need. These elements may include hardware, equipment, software, or a combination of hardware, equipment, and software, but do not include construction or other improvements to real property. (b)  System Deemed To Be Major System A system is deemed to be a major system if (1) the Department of Defense is responsible for the system and the total expenditures for research, development, testing, and evaluation for the system are estimated to exceed $75,000,000 (based on fiscal year 1980 constant dollars) or the eventual total expenditure for procurement exceeds $300,000,000 (based on fiscal year 1980 constant dollars); (2) a civilian agency is responsible for the system and total expenditures for the system are estimated to exceed the greater of $750,000 (based on fiscal year 1980 constant dollars) or the dollar threshold for a major system established by the agency pursuant to Office of Management and Budget (OMB) Circular A109, entitled Major Systems Acquisitions; or (3) the head of the agency responsible for the system designates the system a major system. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3680        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  109 41:259(c)(7). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:403(9). Pub. L. 93400,  4(9) Pub. L. 98577, title I,  102(3) Oct. 30, 1984 98 Stat. 3067 Pub. L. 100679,  3(c) Nov. 17, 1988 102 Stat. 4056 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  110. Nondevelopmental item In this subtitle, the term nondevelopmental item means (1) a commercial product; (2) a previously developed item of supply that is in use by a department or agency of the Federal Government, a State or local government, or a foreign government with which the United States has a mutual defense cooperation agreement; (3) an item of supply described in paragraph (1) or (2) that requires only minor modification or modification of the type customarily available in the commercial marketplace to meet the requirements of the procuring department or agency; or (4) an item of supply currently being produced that does not meet the requirements of paragraph (1), (2), or (3) solely because the item is not yet in use. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3680 Pub. L. 115232, div. A, title VIII,  836(a)(2)(C) Aug. 13, 2018 132 Stat. 1860        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  110 41:259(c)(12). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:264a (nondevelopmental item). June 30, 1949, ch. 288 Pub. L. 103355, title VIII,  8202 Oct. 13, 1994 108 Stat. 3394  41:403(13). Pub. L. 93400,  4(13) Pub. L. 103355, title VIII,  8001(a) Oct. 13, 1994 108 Stat. 3385 Editorial Notes Amendments 2018Par. (1). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  111. Procurement  In this subtitle, the term procurement includes all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3681        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  111 41:259(c)(1). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3298  41:403(2). Pub. L. 93400,  4(2) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  3 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  4 Dec. 1, 1983 97 Stat. 1326 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  112. Procurement system  In this subtitle, the term procurement system means the integration of the procurement process, the professional development of procurement personnel, and the management structure for carrying out the procurement function. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3681        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  112 41:259(c)(2). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:403(3). Pub. L. 93400,  4(3) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  3 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  4 Dec. 1, 1983 97 Stat. 1326 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  113. Responsible source In this subtitle, the term responsible source means a prospective contractor that (1) has adequate financial resources to perform the contract or the ability to obtain those resources; (2) is able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and Government business commitments; (3) has a satisfactory performance record; (4) has a satisfactory record of integrity and business ethics; (5) has the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain the organization, experience, controls, and skills; (6) has the necessary production, construction, and technical equipment and facilities, or the ability to obtain the equipment and facilities; and (7) is otherwise qualified and eligible to receive an award under applicable laws and regulations. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3681        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  113 41:259(c)(5). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:403(7). Pub. L. 93400,  4(7) Pub. L. 98369, title VII,  2731(3) July 18, 1984 98 Stat. 1195 Pub. L. 98577, title I,  102(2) Oct. 30, 1984 98 Stat. 3067 Pub. L. 100679,  3(c) Nov. 17, 1988 102 Stat. 4056 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  114. Standards  In this subtitle, the term standards means the criteria for determining the effectiveness of the procurement system by measuring the performance of the various elements of the system. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3681        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  114 41:259(c)(3). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:403(4). Pub. L. 93400,  4(4) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  3 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  4 Dec. 1, 1983 97 Stat. 1326 Pub. L. 98369, title VII,  2731(2) July 18, 1984 98 Stat. 1195 Pub. L. 100679,  3(c) Nov. 17, 1988 102 Stat. 4056 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  115. Supplies  In this subtitle, the term supplies has the same meaning as the terms item and item of supply. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3681        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  115 41:259(c)(10). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:403(10) (supplies). Pub. L. 93400,  4(10) Pub. L. 98577, title I,  102(3) Oct. 30, 1984 98 Stat. 3067 Pub. L. 100679,  3(c) Nov. 17, 1988 102 Stat. 4056 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  116. Technical data In this subtitle, the term technical data (1) means recorded information (regardless of the form or method of the recording) of a scientific or technical nature (including computer software documentation) relating to supplies procured by an agency; but (2) does not include computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3681        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  116 41:259(c)(6). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577, title V,  504(a)(4) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299  41:403(8). Pub. L. 93400,  4(8) Pub. L. 98577, title I,  102(3) Oct. 30, 1984 98 Stat. 3067 Pub. L. 100679,  3(c) Nov. 17, 1988 102 Stat. 4056 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386 SUBCHAPTER II DIVISION B DEFINITIONS  131. Acquisition In division B, the term acquisition (1) means the process of acquiring, with appropriated amounts, by contract for purchase or lease, property or services (including construction) that support the missions and goals of an executive agency, from the point at which the requirements of the executive agency are established in consultation with the chief acquisition officer of the executive agency; and (2) includes (A) the process of acquiring property or services that are already in existence, or that must be created, developed, demonstrated, and evaluated; (B) the description of requirements to satisfy agency needs; (C) solicitation and selection of sources; (D) award of contracts; (E) contract performance; (F) contract financing; (G) management and measurement of contract performance through final delivery and payment; and (H) technical and management functions directly related to the process of fulfilling agency requirements by contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3682        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  131 41:403(16). Pub. L. 93400,  4(16) Pub. L. 108136, title XIV,  1411 Nov. 24, 2003 117 Stat. 1663  132. Competitive procedures  In division B, the term competitive procedures means procedures under which an agency enters into a contract pursuant to full and open competition. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3682        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  132 41:403(5). Pub. L. 93400,  4(5) Pub. L. 98369, title VII,  2731(3) July 18, 1984 98 Stat. 1195 Pub. L. 100679,  3(c) Nov. 17, 1988 102 Stat. 4056 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  133. Executive agency In division B, the term executive agency means (1) an executive department specified in section 101 of title 5 (2) a military department specified in section 102 of title 5 (3) an independent establishment as defined in section 104(1) of title 5 (4) a wholly owned Government corporation fully subject to chapter 91 of title 31. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3682        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  133 41:403(1). Pub. L. 93400,  4(1) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  3 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  4 Dec. 1, 1983 97 Stat. 1326 Pub. L. 103355, title VIII,  8001(b)(1) Oct. 13, 1994 108 Stat. 3386  134. Simplified acquisition threshold  In division B, the term simplified acquisition threshold means $250,000. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3682 Pub. L. 11591, div. A, title VIII,  805 Dec. 12, 2017 131 Stat. 1456        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  134 41:403(11). Pub. L. 93400,  4(11) Pub. L. 101510, title VIII,  806(a)(1) Nov. 5, 1990 104 Stat. 1592 Pub. L. 103355, title IV,  4001 Oct. 13, 1994 108 Stat. 3338 Editoral Notes Amendments 2017 Pub. L. 11591 SUBCHAPTER III DIVISION C DEFINITIONS  Statutory Notes and Related Subsidiaries  Definitions For additional definitions of terms used in division C of this subtitle, with certain exceptions, see section 102 of Title 40  151. Agency head  In division C, the term agency head means the head or any assistant head of an executive agency, and may at the option of the Administrator of General Services include the chief official of any principal organizational unit of the General Services Administration. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3682        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  151 41:259(a). June 30, 1949, ch. 288 63 Stat. 397  152. Competitive procedures In division C, the term competitive procedures means procedures under which an executive agency enters into a contract pursuant to full and open competition. The term also includes (1) procurement of architectural or engineering services conducted in accordance with chapter 11 of title 40; (2) the competitive selection of basic research proposals resulting from a general solicitation and the peer review or scientific review (as appropriate) of those proposals; (3) the procedures established by the Administrator of General Services for the multiple awards schedule program of the General Services Administration if (A) participation in the program has been open to all responsible sources; and (B) orders and contracts under those procedures result in the lowest overall cost alternative to meet the needs of the Federal Government; (4) procurements conducted in furtherance of section 15 of the Small Business Act ( 15 U.S.C. 644 (5) a competitive selection of research proposals resulting from a general solicitation and peer review or scientific review (as appropriate) solicited pursuant to section 9 of that Act ( 15 U.S.C. 638 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3683        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  152 41:259(b). June 30, 1949, ch. 288,  309(b) Pub. L. 98369, title VII,  2711(a)(3) July 18, 1984 98 Stat. 1180 Pub. L. 98577,  504(a)(3) Oct. 30, 1984 98 Stat. 3086 Pub. L. 10585, title X,  1073(g)(1) Nov. 18, 1997 111 Stat. 1906  153. Simplified acquisition threshold for contract in support of humanitarian or peacekeeping operation (1)  In general In division C, the term simplified acquisition threshold has the meaning provided that term in section 134 of this title section 134 of this title (2)  Definition In paragraph (1), the term humanitarian or peacekeeping operation means a military operation in support of the provision of humanitarian or foreign disaster assistance or in support of a peacekeeping operation under chapter VI or VII of the Charter of the United Nations. The term does not include routine training, force rotation, or stationing. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3683        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  153(1) 41:259(d)(1). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1551 Oct. 13, 1994 108 Stat. 3299 Pub. L. 104201, title VIII,  807(b)(1) Sept. 23, 1996 110 Stat. 2606 153(2) 41:259(d)(2). June 30, 1949, ch. 288 Pub. L. 104201, title VIII,  807(b)(3) Sept. 23, 1996 110 Stat. 2606 In paragraph (1), the words a contingency operation or, and the text of 41 U.S.C. 259(d)(2)(A) Public Law 93400 Division B Office of Federal Procurement Policy CHAPTER 11 ESTABLISHMENT OF OFFICE AND AUTHORITY AND FUNCTIONS OF ADMINISTRATOR    SUBCHAPTER IGENERAL  Sec.  1101. Office of Federal Procurement Policy.  1102. Administrator.  SUBCHAPTER IIAUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR  1121. General authority.  1122. Functions.  1123. Small business concerns.  1124. Tests of innovative procurement methods and procedures.  1125. Recipients of Federal grants or assistance.  1126. Policy regarding consideration of contractor past performance.  1127. Determining benchmark compensation amount.  1128. Maintaining necessary capability with respect to acquisition of architectural and engineering services.  1129. Center of excellence in contracting for services.  1130. Effect of division on other law.  1131. Annual report.  Amendment of Analysis Pub. L. 11367, div. A, title VII,  702(b)(2) Dec. 26, 2013 127 Stat. 1189 Dec. 26, 2013 Pub. L. 11366, div. A, title VIII,  811(c)(2) Dec. 26, 2013 127 Stat. 806 Dec. 26, 2013 Editorial Notes Amendments 2013 Pub. L. 11366, div. A, title VIII,  811(c)(2) Dec. 26, 2013 127 Stat. 806 Pub. L. 11367, div. A, title VII,  702(b)(2) Dec. 26, 2013 127 Stat. 1189 SUBCHAPTER I GENERAL  1101. Office of Federal Procurement Policy (a)  Organization There is an Office of Federal Procurement Policy in the Office of Management and Budget. (b)  Purposes The purposes of the Office of Federal Procurement Policy are to (1) provide overall direction of Government-wide procurement policies, regulations, procedures, and forms for executive agencies; and (2) promote economy, efficiency, and effectiveness in the procurement of property and services by the executive branch of the Federal Government. (c)  Authorization of Appropriations Necessary amounts may be appropriated each fiscal year for the Office of Federal Procurement Policy to carry out the responsibilities of the Office for that fiscal year. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3684        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1101(a), (b) 41:404(a). Pub. L. 93400 Aug. 30, 1974 88 Stat. 797 Pub. L. 104106, title XLIII,  4305(a)(1) Feb. 10, 1996 110 Stat. 665 1101(c) 41:410. Pub. L. 93400,  11 Aug. 30, 1974 88 Stat. 799 Pub. L. 9683,  7 Oct. 10, 1979 Pub. L. 98191,  6 Dec. 1, 1983 Pub. L. 100679,  3(b) Nov. 17, 1988 Pub. L. 104106, title XLIII,  4305(c)(2) Feb. 10, 1996 110 Stat. 665 Statutory Notes and Related Subsidiaries Promoting Rigorous and Innovative Cost Efficiencies for Federal Procurement and Acquisitions Pub. L. 11788 Feb. 22, 2022 136 Stat. 20  SECTION 1. SHORT TITLE. This Act may be cited as the Promoting Rigorous and Innovative Cost Efficiencies for Federal Procurement and Acquisitions Act of 2021 or the PRICE Act of 2021. SEC. 2. FINDINGS. Congress finds that (1) small business participation in the Federal marketplace is key to ensuring a strong industrial base; (2) the Business Opportunity Development Reform Act of 1988 ( Public Law 100656 (3) each year, the Small Business Administration works with each Federal agency to set their respective contracting goals and publishes a scorecard to ensure that the total of all Federal agency goals meets the required targets for the Federal Government; (4) the Department has received among the highest scorecard letter grades 10 years in a row and is the largest Federal agency to have such a track record; (5) in virtually every segment of the economy of the United States, including the homeland security community, there are small businesses working to support the mission and playing a critical role in delivering efficient and innovative solutions to the acquisition needs of the Federal Government; (6) the Procurement Innovation Lab of the Department (A) is aimed at experimenting with innovative acquisition techniques across the Homeland Security Enterprise; (B) provides a forum to test new ideas, share lessons learned, and promote best practices; (C) fosters cultural changes that promote innovation and managed risk taking through a continuous cycle of testing, obtaining feedback, sharing information, and retesting where appropriate; and (D) aims to make the acquisition process more smooth and innovative within the construct of the Federal Acquisition Regulation for both the Federal Government and contractors; and (7) despite progress in the adoption of new and better business practices by many Federal agencies, the overall adoption of modernized business practices and advanced technologies across the Federal Government remains slow and uneven. SEC. 3. DEFINITIONS. In this Act: (1)  Administrator The term Administrator means the Administrator for Federal Procurement Policy. (2)  Appropriate congressional committees The term appropriate congressional committees means (A) the Committee on Homeland Security and Governmental Affairs and the Committee on Small Business and Entrepreneurship of the Senate; and (B) the Committee on Homeland Security, the Committee on Oversight and Reform [now Committee on Oversight and Accountability], and the Committee on Small Business of the House of Representatives. (3)  Council The term Council means the Chief Acquisition Officers Council established under section 1311 of title 41 (4)  Department The term Department means the Department of Homeland Security. (5)  Homeland security enterprise The term Homeland Security Enterprise has the meaning given the term in section 2211(h) of the Homeland Security Act of 2002 ( 6 U.S.C. 661(h) 6 U.S.C. 650(11) (6)  Scorecard The term scorecard means the scorecard described in section 868(b) of the National Defense Authorization Act for Fiscal Year 2016 [ Pub. L. 11492 15 U.S.C. 644 15 U.S.C. 644(y)(6) (7)  Secretary The term Secretary means the Secretary of Homeland Security. (8)  Small business The term small business means (A) a qualified HUBZone small business concern, a small business concern, a small business concern owned and controlled by service-disabled veterans, or a small business concern owned and controlled by women, as those terms are defined in section 3 of the Small Business Act ( 15 U.S.C. 632 (B) a small business concern owned and controlled by socially and economically disadvantaged individuals, as defined in section 8(d)(3)(C) of the Small Business Act ( 15 U.S.C. 637(d)(3)(C) (C) a small business concern unconditionally owned by an economically disadvantaged Indian tribe or an economically disadvantaged Native Hawaiian organization that qualifies as a socially and economically disadvantaged small business concern, as defined in section 8(a)(4) of the Small Business Act ( 15 U.S.C. 637(a)(4) (9)  Under secretary The term Under Secretary means the Under Secretary for Management of the Department. SEC. 4. PROCUREMENT INNOVATION LAB REPORT. (a)  Report The Under Secretary shall publish an annual report on a website of the Department on Procurement Innovation Lab projects that have used innovative techniques within the Department to accomplish (1) improving or encouraging better competition; (2) reducing time to award; (3) cost savings; (4) better mission outcomes; or (5) meeting the goals for contracts awarded to small business concerns under section 15(g) of the Small Business Act ( 15 U.S.C. 644(g) (b)  Education The Under Secretary shall develop and disseminate guidance and offer training for contracting officers, contracting specialists, program managers, and other personnel of the Department, as determined appropriate by the Under Secretary, concerning when and how to use the innovative procurement techniques of the Department. (c)  Best Practices The Under Secretary shall share best practices across the Department and make available to other Federal agencies information to improve procurement methods and training, as determined appropriate by the Under Secretary. (d)  Sunset This section shall cease to be effective on the date that is 3 years after the date of enactment of this Act [ Feb. 22, 2022 SEC. 5. COUNCIL. (a)  Establishment Not later than 45 days after the date of enactment of this Act [ Feb. 22, 2022 15 U.S.C. 644(g) (b)  Working Group The Council may form a working group to address the requirements of this section, which, if formed, shall (1) be chaired by the Administrator or a designee of the Administrator; and (2) be composed of (A) the Chief Procurement Officer of the Department; (B) Council members from (i) the General Services Administration; (ii) the Department of Defense; (iii) the Department of the Treasury; (iv) the Department of Veterans Affairs; (v) the Department of Health and Human Services; (vi) the Small Business Administration; and (vii) such other Federal agencies as determined by the chair of the Council from among Federal agencies that have demonstrated significant, sustained progress using innovative acquisition practices and technologies, including for small business contracting, during each of the 3 years preceding the date of enactment of this Act; and (C) other employees, as determined appropriate by the chair of the Council, of Federal agencies with the requisite senior experience to make recommendations to improve Federal agency efficiency, effectiveness, and economy, including in promoting small business contracting. (c)  Duties of the Council The Council, or a working group formed under subsection (b), shall (1) convene not later than 90 days after the date of enactment of this Act and thereafter on a quarterly basis until the Council submits the report required under subsection (d)(1); and (2) conduct outreach with the workforce and the public in meeting the requirements under subsection (d)(1). (d)  Report. (1)  In general Not later than 1 year after the date of enactment of this Act, the Council shall submit to the appropriate congressional committees a report that describes (A) innovative acquisition practices and applications of technologies that have worked well in achieving better procurement outcomes, including increased efficiency, improved program outcomes, better customer experience, and meeting or exceeding the goals under section 15(g) of the Small Business Act ( 15 U.S.C. 644(g) (B) steps to identify and adopt transformational commercial business practices, modernized data analytics, and advanced technologies that allow decision making to occur in a more friction-free buying environment and improve customer experience; and (C) any recommendations for statutory changes to accelerate the adoption of innovative acquisition practices. (2)  Briefing Not later than 18 months after the date of enactment of this Act, the Administrator shall brief the appropriate congressional committees on the means by which the findings and recommendations of the report have been disseminated under paragraph (3). (3)  Publication and dissemination of report findings To promote more rapid adoption of acquisition best practices, the Administrator shall (A) publish the report required under paragraph (1) on the website of the Office of Management and Budget and on the Innovation Hub on the Acquisition Gateway or any successor Government-wide site available for increasing awareness of resources dedicated to procurement innovation; and (B) encourage the head of each Federal agency to maintain a site on the website of the Federal agency for acquisition and contracting professionals, program managers, members of the public, and others as appropriate that is (i) dedicated to acquisition innovation; and (ii) identifies (I) resources, including the acquisition innovation advocate and industry liaison of the Federal agency; (II) learning assets for the workforce, including the findings and recommendations made in the report required under paragraph (1); (III) events to build awareness and understanding of innovation activities; (IV) award recognition programs and recent recipients; and (V) upcoming plans to leverage innovative practices and technologies. (e)  Experts In carrying out the duties of the Council under this section, the Council is encouraged to consult with governmental and nongovernmental experts. (f)  Termination The duties of the Council as set forth in this section shall terminate 30 days after the date on which the Council conducts the briefing required under subsection (d)(2). Requirements for Use of Appropriations by Executive Agencies for Services by Contract Pub. L. 102394, title V,  502 Oct. 6, 1992 106 Stat. 1825 No part of any appropriation contained in this Act or subsequent Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Acts shall be expended by an executive agency, as referred to in the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 401 Similar provisions were contained in the following prior appropriation acts: Pub. L. 102170, title V,  502 Nov. 26, 1991 105 Stat. 1140 Pub. L. 101517, title V,  502 Nov. 5, 1990 104 Stat. 2221 Pub. L. 101166, title V,  502 Nov. 21, 1989 103 Stat. 1189 Pub. L. 100202,  101(h) [title V,  502] Dec. 22, 1987 101 Stat. 1329256 Pub. L. 99500,  101(i) [H.R. 5233, title V,  502] Oct. 18, 1986 100 Stat. 1783287 Pub. L. 99591,  101(i) [H.R. 5233, title V,  502] Oct. 30, 1986 100 Stat. 3341287 Pub. L. 99178, title V,  502 Dec. 12, 1985 99 Stat. 1132 Pub. L. 98619, title V,  502 Nov. 8, 1984 98 Stat. 3332 Pub. L. 98139, title V,  502 Oct. 31, 1983 97 Stat. 899 Pub. L. 97377, title I,  101(e)(1) [title V,  502] Dec. 21, 1982 96 Stat. 1878  1102. Administrator (a)  Head of Office The head of the Office of Federal Procurement Policy is the Administrator for Federal Procurement Policy. (b)  Appointment The Administrator is appointed by the President, by and with the advice and consent of the Senate. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3684        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1102 41:404(b). Pub. L. 93400 Aug. 30, 1974 88 Stat. 797 SUBCHAPTER II AUTHORITY AND FUNCTIONS OF THE ADMINISTRATOR  1121. General authority (a)  Overall Direction and Leadership The Administrator shall provide overall direction of procurement policy and leadership in the development of procurement systems of the executive agencies. (b)  Federal Acquisition Regulation To the extent that the Administrator considers appropriate in carrying out the policies and functions set forth in this division, and with due regard for applicable laws and the program activities of the executive agencies, the Administrator may prescribe Government-wide procurement policies. The policies shall be implemented in a single Government-wide procurement regulation called the Federal Acquisition Regulation. (c)  Policies To Be Followed by Executive Agencies. (1)  Areas of procurement for which policies are to be followed The policies implemented in the Federal Acquisition Regulation shall be followed by executive agencies in the procurement of (A) property other than real property in being; (B) services, including research and development; and (C) construction, alteration, repair, or maintenance of real property. (2)  Procedures to ensure compliance The Administrator shall establish procedures to ensure compliance with the Federal Acquisition Regulation by all executive agencies. (3)  Application of other laws The authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement is subject to the authority conferred in this section and sections 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title. (d)  When Certain Agencies Are Unable To Agree or Fail To Act In any instance in which the Administrator determines that the Department of Defense, the National Aeronautics and Space Administration, and the General Services Administration are unable to agree on or fail to issue Government-wide regulations, procedures, and forms in a timely manner, including regulations, procedures, and forms necessary to implement prescribed policy the Administrator initiates under subsection (b), the Administrator, with due regard for applicable laws and the program activities of the executive agencies and consistent with the policies and functions set forth in this division, shall prescribe Government-wide regulations, procedures, and forms which executive agencies shall follow in procuring items listed in subsection (c)(1). (e)  Oversight of Procurement Regulations of Other Agencies The Administrator, with the concurrence of the Director of the Office of Management and Budget, and with consultation with the head of the agency concerned, may deny the promulgation of or rescind any Government-wide regulation or final rule or regulation of any executive agency relating to procurement if the Administrator determines that the rule or regulation is inconsistent with any policies, regulations, or procedures issued pursuant to subsection (b). (f)  Limitation on Authority The authority of the Administrator under this division shall not be construed to (1) impair or interfere with the determination by executive agencies of their need for, or their use of, specific property, services, or construction, including particular specifications for the property, services, or construction; or (2) interfere with the determination by executive agencies of specific actions in the award or administration of procurement contracts. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3684        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1121(a)(c) (1) 41:405(a). Pub. L. 93400,  6(a) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1326 Pub. L. 100679,  3(a)(1) Nov. 17, 1988 102 Stat. 4055 1121(c)(2) 41:405a (1st sentence). Pub. L. 95507, title II,  222 Oct. 24, 1978 92 Stat. 1771 1121(c)(3) 41:408. Pub. L. 93400,  9 Aug. 30, 1974 88 Stat. 799 1121(d) 41:405(b). Pub. L. 93400,  6(b) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1327 Pub. L. 100679,  3(a)(2) Nov. 17, 1988 102 Stat. 4055 Pub. L. 104106, title XLIII,  4322(a)(1) Feb. 10, 1996 110 Stat. 677 1121(e) 41:405(f). Pub. L. 93400,  6(f) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1328 Pub. L. 100679,  3(a)(4) Nov. 17, 1988 102 Stat. 4056 Pub. L. 104201, title X,  1074(f)(1) Sept. 23, 1996 110 Stat. 2661 1121(f) 41:405(c). Pub. L. 93400,  6(c) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1327 In subsection (c)(2), the text of 41:405a (1st sentence relating to promulgating a single, simplified, uniform Federal procurement regulation) is omitted as superseded by 41:405(a) because of section 11 of the Office of Federal Procurement Policy Act Amendments of 1979 ( Public Law 9683 93 Stat. 652 Statutory Notes and Related Subsidiaries Supersedure of Inconsistent Statutory Provisions Pub. L. 9683,  11 Oct. 10, 1979 93 Stat. 652 The provisions of the Act [ Pub. L. 93400 Aug. 30, 1974 88 Stat. 796 section 101 of this title section 222 of the Act of October 24, 1978 41 U.S.C. 405a 41 U.S.C. 1121(c)(2) Federal Support for Enhancement of State and Local Anti-Terrorism Response Capabilities Pub. L. 108136, div. A, title VIII,  803 Nov. 24, 2003 117 Stat. 1541  (a)  Procurements of Anti-Terrorism Technologies and Services by State and Local Governments The Administrator for Federal Procurement Policy shall establish a program under which States and units of local government may procure through contracts entered into by the Department of Defense or the Department of Homeland Security anti-terrorism technologies or anti-terrorism services for the purpose of preventing, detecting, identifying, deterring, or recovering from acts of terrorism. (b)  Authorities Under the program, the Secretary of Defense and the Secretary of Homeland Security may, but shall not be required to, award contracts using the procedures established by the Administrator of General Services for the multiple awards schedule program of the General Services Administration. (c)  Definition In this section, the term State or local government has the meaning provided in section 502(c)(3) of title 40 Profit Methodology Study Pub. L. 100679,  7 Nov. 17, 1988 102 Stat. 4068  (a)  In General The Administrator shall conduct a study to develop a consistent methodology which executive agencies should use for measuring the profits earned by government contractors on procurements, other than procurements where the price is based on adequate price competition or on established catalog or market prices of commercial items sold in substantial quantities to the general public. (b)  Contractors Financial Data The methodology developed under subsection (a) shall include adequate procedures for verifying and maintaining the confidentiality of contractors financial data.  1122. Functions (a)  In General The functions of the Administrator include (1) providing leadership and ensuring action by the executive agencies in establishing, developing, and maintaining the single system of simplified Government-wide procurement regulations and resolving differences among the executive agencies in developing simplified Government-wide procurement regulations, procedures, and forms; (2) coordinating the development of Government-wide procurement system standards that executive agencies shall implement in their procurement systems; (3) providing leadership and coordination in formulating the executive branch position on legislation relating to procurement; (4) (A) providing for and directing the activities of the computer-based Federal Procurement Data System (including recommending to the Administrator of General Services a sufficient budget for those activities), which shall be located in the General Services Administration, in order to adequately collect, develop, and disseminate procurement data; and (B) ensuring executive agency compliance with the record requirements of section 1712 of this title (5) providing for and directing the activities of the Federal Acquisition Institute established under section 1201 of this title 1 1 (6) administering section 1703(a) to (i) of this title; (7) establishing criteria and procedures to ensure the effective and timely solicitation of the viewpoints of interested parties in the development of procurement policies, regulations, procedures, and forms; (8) developing standard contract forms and contract language in order to reduce the Federal Governments cost of procuring property and services and the private sectors cost of doing business with the Federal Government; (9) providing for a Government-wide award to recognize and promote vendor excellence; (10) providing for a Government-wide award to recognize and promote excellence in officers and employees of the Federal Government serving in procurement-related positions; (11) developing policies, in consultation with the Administrator of the Small Business Administration, that ensure that small businesses, qualified HUBZone small business concerns (as defined in section 31(b) of the Small Business Act), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women are provided with the maximum practicable opportunities to participate in procurements that are conducted for amounts below the simplified acquisition threshold; (12) developing policies that will promote achievement of goals for participation by small businesses, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns (as defined in section 31(b) of the Small Business Act), small businesses owned and controlled by socially and economically disadvantaged individuals, and small businesses owned and controlled by women; and (13) completing action, as appropriate, on the recommendations of the Commission on Government Procurement. (b)  Consultation and Assistance In carrying out the functions in subsection (a), the Administrator (1) shall consult with the affected executive agencies, including the Small Business Administration; (2) with the concurrence of the heads of affected executive agencies, may designate one or more executive agencies to assist in performing those functions; and (3) may establish advisory committees or other interagency groups to assist in providing for the establishment, development, and maintenance of a single system of simplified Government-wide procurement regulations and to assist in performing any other function the Administrator considers appropriate. (c)  Assignment, Delegation, or Transfer. (1)  To administrator Except as otherwise provided by law, only duties, functions, or responsibilities expressly assigned by this division shall be assigned, delegated, or transferred to the Administrator. (2)  By administrator. (A)  Within office The Administrator may make and authorize delegations within the Office of Federal Procurement Policy that the Administrator determines to be necessary to carry out this division. (B)  To another executive agency The Administrator may delegate, and authorize successive redelegations of, an authority, function, or power of the Administrator under this division (other than the authority to provide overall direction of Federal procurement policy and to prescribe policies and regulations to carry out the policy) to another executive agency with the consent of the head of the executive agency or at the direction of the President. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3685 Pub. L. 11281, div. A, title VIII,  864(b)(3) Dec. 31, 2011 125 Stat. 1524 Pub. L. 11591, div. A, title XVII,  1701(a)(4)(F)(i) Dec. 12, 2017 131 Stat. 1796        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1122(a) 41:405(d). Pub. L. 93400,  6(d) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1327 Pub. L. 100679,  3(a)(3) Nov. 17, 1988 102 Stat. 4055 Pub. L. 103355, title V,  5091 Oct. 13, 1994 108 Stat. 3361 Pub. L. 104106, title XLIII Feb. 10, 1996 110 Stat. 668 Pub. L. 10585, title X,  1073(g)(2)(B) Nov. 18, 1997 111 Stat. 1906 Pub. L. 105135, title VI,  604(f)(1) Dec. 2, 1997 111 Stat. 2634 1122(b) 41:405(e). Pub. L. 93400,  6(e) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1328 Pub. L. 98369, title VII,  2732(b)(1) July 18, 1984 98 Stat. 1199 1122(c)(1) 41:405(g). Pub. L. 93400,  6(g) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1328 1122(c)(2)(A) 41:411(b). Pub. L. 93400,  12 Aug. 30, 1974 88 Stat. 799 Pub. L. 9683,  8 Oct. 10, 1979 93 Stat. 652 Pub. L. 98191,  8(c) Dec. 1, 1983 97 Stat. 1331 1122(c)(2)(B) 41:411(a). In clause (12), the words small business concerns owned and controlled by service-disabled veterans are added to conform to section 15(g)(1) of the Small Business Act (15:644(g)(1)). Editorial Notes  References in Text Section 31(b) of the Small Business Act, referred to in subsec. (a)(11), (12), is classified to section 657a(b) of Title 15 Amendments 2017Subsec. (a)(11), (12). Pub. L. 11591,  1701(a)(4)(F)(i) 15 U.S.C. 632(p) 2011Subsec. (a)(5). Pub. L. 11281 Statutory Notes and Related Subsidiaries Effective Date of 2017 Amendment Amendment by Pub. L. 11591 Jan. 1, 2020 section 1701(j) of Pub. L. 11591 section 657a of Title 15 Revision to the Federal Procurement Data System Pub. L. 11692, div. A, title VIII,  806(b) Dec. 20, 2019 133 Stat. 1485  Not later than 180 days after the date of the enactment of this Act [ Dec. 20, 2019 section 1122(a)(4) of title 41 (1) at a minimum, on the usage of the lowest price technically acceptable contracting methods and best value contracting methods process; and (2) on all applicable contracting actions, including task orders or delivery orders issued under indefinite delivery-indefinite quantity contracts. Procurement Administrative Lead Time Definition and Plan Pub. L. 115232, div. A, title VIII,  878 Aug. 13, 2018 132 Stat. 1908  (a)  In General Not later than 180 days after the date of the enactment of this Act [ Aug. 13, 2018 (1) a definition of the term Procurement administrative lead time or PALT, to be applied Government-wide, that describes the amount of time from the date on which a solicitation for a contract or task order is issued to the date of an initial award of the contract or task order; and (2) a plan for measuring and publicly reporting data on PALT for Federal Government contracts and task orders in amounts greater than the simplified acquisition threshold. (b)  Requirement for Definition Unless the Administrator determines otherwise, the amount of time in the definition of PALT developed under subsection (a) shall (1) begin on the date on which an initial solicitation is issued by a Federal department or agency for a contract or task order; and (2) end on the date of the award of the contract or task order. (c)  Coordination In developing the definition of PALT, the Administrator shall coordinate with (1) the senior procurement executives of Federal agencies; (2) the Secretary of Defense; and (3) the Administrator of the General Services Administration on modifying the existing data system of the Federal Government to determine the date on which the initial solicitation is issued. (d)  Use of Existing Procurement Data System In developing the plan for measuring and publicly reporting data on PALT required by subsection (a), the Administrator shall, to the maximum extent practicable, rely on the information contained in the Federal procurement data system established pursuant to section 1122(a)(4) of title 41 Pilot Program To Inventory Cost and Size of Service Contracts Pub. L. 110161, div. D, title VII,  748 Dec. 26, 2007 121 Stat. 2035 No later than 180 days after enactment of this Act [ Dec. 26, 2007 Reporting of Bundled Contract Opportunities Pub. L. 105135, title IV,  414 Dec. 2, 1997 111 Stat. 2619  (a)  Data Collection Required The Federal Procurement Data System described in section 6(d)(4)(A) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 405(d)(4)(A) 41 U.S.C. 1122(a)(4)(A) (b)  Definitions In this section, the term bundling of contract requirements has the meaning given that term in section 3( o 15 U.S.C. 632 o Results-Oriented Acquisition Process Pub. L. 103355, title V,  5052 Oct. 13, 1994 108 Stat. 3352  (a)  Development of Process Required The Administrator for Federal Procurement Policy, in consultation with the heads of appropriate Federal agencies, shall develop results-oriented acquisition process guidelines for implementation by agencies in acquisitions of property and services by the Federal agencies. The process guidelines shall include the identification of quantitative measures and standards for determining the extent to which an acquisition of items other than commercial items by a Federal agency satisfies the needs for which the items are being acquired. (b)  Inapplicability of Process to Department of Defense The process guidelines developed pursuant to subsection (a) may not be applied to the Department of Defense. Data Collection Through Federal Procurement Data System Pub. L. 103355, title X,  10004 Oct. 13, 1994 108 Stat. 3405 Pub. L. 115232, div. A, title VIII,  812(a)(2)(C)(iv) Aug. 13, 2018 132 Stat. 1847  (a)  Data Collection Required The Federal Procurement Data System described in section 6(d)(4)(A) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 405(d)(4)(A) 41 U.S.C. 1122(a)(4)(A) (1) Contract awards made pursuant to competitions conducted pursuant to section 7102 of the Federal Acquisition Streamlining Act of 1994 [ Pub. L. 103355 15 U.S.C. 644 (2) Awards to business concerns owned and controlled by women. (3) Number of offers received in response to a solicitation. (4) Task order contracts. (5) Contracts for the acquisition of commercial items. (b)  Definition In this section, the term simplified acquisition threshold has the meaning given such term in section 4(11) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 403(11) 41 U.S.C. 134  1123. Small business concerns In formulating the Federal Acquisition Regulation and procedures to ensure compliance with the Regulation, the Administrator, in consultation with the Small Business Administration, shall (1) conduct analyses of the impact on small business concerns resulting from revised procurement regulations; and (2) incorporate into revised procurement regulations simplified bidding, contract performance, and contract administration procedures for small business concerns. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3687        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1123 41:405a (last sentence). Pub. L. 95507, title II,  222 Oct. 24, 1978 92 Stat. 1771  1124. Tests of innovative procurement methods and procedures (a)  In General The Administrator may develop innovative procurement methods and procedures to be tested by selected executive agencies. In developing a program to test innovative procurement methods and procedures under this subsection, the Administrator shall consult with the heads of executive agencies to (1) ascertain the need for and specify the objectives of the program; (2) develop the guidelines and procedures for carrying out the program and the criteria to be used in measuring the success of the program; (3) evaluate the potential costs and benefits which may be derived from the innovative procurement methods and procedures tested under the program; (4) select the appropriate executive agencies or components of executive agencies to carry out the program; (5) specify the categories and types of products or services to be procured under the program; and (6) develop the methods to be used to analyze the results of the program. (b)  Approval of Executive Agencies Required A program to test innovative procurement methods and procedures may not be carried out unless approved by the heads of the executive agencies selected to carry out the program. (c)  Request for Waiver of Law If the Administrator determines that it is necessary to waive the application of a provision of law to carry out a proposed program to test innovative procurement methods and procedures under subsection (a), the Administrator shall transmit notice of the proposed program to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate and request that the Committees take the necessary action to provide that the provision of law does not apply with respect to the proposed program. The notification to Congress shall include (1) a description of the proposed program (including the scope and purpose of the proposed program); (2) the procedures to be followed in carrying out the proposed program; (3) the provisions of law affected and the application of any provision of law that must be waived in order to carry out the proposed program; and (4) the executive agencies involved in carrying out the proposed program. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3688        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1124(a) 41:413(a) (1st, 2d sentences). Pub. L. 93400,  15 Pub. L. 98191,  7 Dec. 1, 1983 97 Stat. 1329 Pub. L. 104201, title X,  1074(f)(2) Sept. 23, 1996 110 Stat. 2661 1124(b) 41:413(a) (last sentence). 1124(c) 41:413(b). In subsection (c), the words Committee on Oversight and Government Reform are substituted for Committee on Government Operations on authority of section 1(a)(6) of Public Law 10414 January 6, 1999 January 5, 2007 October 9, 2004 Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023  1125. Recipients of Federal grants or assistance (a)  Authority With due regard to applicable laws and the program activities of the executive agencies administering Federal programs of grants or assistance, the Administrator may prescribe Government-wide policies, regulations, procedures, and forms that the Administrator considers appropriate and that executive agencies shall follow in providing for the procurement, to the extent required under those programs, of property or services referred to in section 1121(c)(1) of this title (b)  Limitation Subsection (a) does not (1) permit the Administrator to authorize procurement or supply support, either directly or indirectly, to a recipient of a Federal grant or assistance; or (2) authorize action by a recipient contrary to State and local law in the case of a program to provide a Federal grant or assistance to a State or political subdivision. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3688        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1125(a) 41:405(i)(1). Pub. L. 93400,  6(i) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1328 1125(b) 41:405(i)(2).  1126. Policy regarding consideration of contractor past performance (a)  Guidance The Administrator shall prescribe for executive agencies guidance regarding consideration of the past contract performance of offerors in awarding contracts. The guidance shall include (1) standards for evaluating past performance with respect to cost (when appropriate), schedule, compliance with technical or functional specifications, and other relevant performance factors that facilitate consistent and fair evaluation by all executive agencies; (2) policies for the collection and maintenance of information on past contract performance that, to the maximum extent practicable, facilitate automated collection, maintenance, and dissemination of information and provide for ease of collection, maintenance, and dissemination of information by other methods, as necessary; (3) policies for ensuring that (A) offerors are afforded an opportunity to submit relevant information on past contract performance, including performance under contracts entered into by the executive agency concerned, other departments and agencies of the Federal Government, agencies of State and local governments, and commercial customers; and (B) the information submitted by offerors is considered; and (4) the period for which information on past performance of offerors may be maintained and considered. (b)  Information Not Available If there is no information on past contract performance of an offeror or the information on past contract performance is not available, the offeror may not be evaluated favorably or unfavorably on the factor of past contract performance. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3689        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1126(a) 41:405(j)(1). Pub. L. 93400,  6(j) Pub. L. 103355, title I,  1091(b)(2) Oct. 13, 1994 108 Stat. 3272 1126(b) 41:405(j)(2). Statutory Notes and Related Subsidiaries Inclusion of Data on Contractor Performance in Past Performance Databases for Executive Agency Source Selection Decisions Pub. L. 112239, div. A, title VIII,  853 Jan. 2, 2013 126 Stat. 1856  (a)  Strategy Required (1)  In general Not later than 180 days after the date of the enactment of this Act [ Jan. 2, 2013 (2)  Consultation with usdatl In developing the strategy required by this subsection, the Federal Acquisition Regulatory Council shall consult with the Under Secretary of Defense for Acquisition, Technology, and Logistics to ensure that the strategy is, to the extent practicable, consistent with the strategy developed by the Under Secretary pursuant to section 806 of the National Defense Authorization Act for Fiscal Year 2012 ( Public Law 11281 125 Stat. 1487 10 U.S.C. 2302 (b)  Elements The strategy required by subsection (a) shall, at a minimum (1) establish standards for the timeliness and completeness of past performance submissions for purposes of databases described in subsection (a); (2) assign responsibility and management accountability for the completeness of past performance submissions for such purposes; and (3) ensure that past performance submissions for such purposes are consistent with award fee evaluations in cases where such evaluations have been conducted. (c)  Contractor Comments Not later than 180 days after the date of the enactment of this Act [ Jan. 2, 2013 (1) That affected contractors are provided, in a timely manner, information on contractor performance to be included in past performance databases in accordance with subsection (a). (2) That such contractors are afforded up to 14 calendar days, from the date of delivery of the information provided in accordance with paragraph (1), to submit comments, rebuttals, or additional information pertaining to past performance for inclusion in such databases. (3) That agency evaluations of contractor past performance, including any comments, rebuttals, or additional information submitted under paragraph (2), are included in the relevant past performance database not later than the date that is 14 days after the date of delivery of the information provided in accordance with paragraph (1). (d)  Construction Nothing in this section shall be construed to prohibit a contractor from submitting comments, rebuttals, or additional information pertaining to past performance after the period described in subsection (c)(2) has elapsed or to prohibit a contractor from challenging a past performance evaluation in accordance with applicable laws, regulations, or procedures. (e)  Comptroller General Report Not later than 18 months after the date of the enactment of this Act [ Jan. 2, 2013 (1) The extent to which the strategy required by subsection (a) is consistent with the strategy developed by the Under Secretary of Defense for Acquisition, Technology, and Logistics as described in subsection (a)(2). (2) The extent to which the actions of the Federal Acquisition Regulatory Council pursuant to this section have otherwise achieved the objectives of this section. (f)  Definitions In this section: (1) The term appropriate committees of Congress means (A) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on Appropriations of the Senate; and (B) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability], and the Committee on Appropriations of the House of Representatives. (2) The term executive agency has the meaning given that term in section 133 of title 41 (3) The term Federal Acquisition Regulatory Council means the Federal Acquisition Regulatory Council under section 1302(a) of title 41 Congressional Findings Regarding Consideration of Past Contract Performance Pub. L. 103355, title I,  1091(b)(1) Oct. 13, 1994 108 Stat. 3272  Congress makes the following findings: (A) Past contract performance of an offeror is one of the relevant factors that a contracting official of an executive agency should consider in awarding a contract. (B) It is appropriate for a contracting official to consider past contract performance of an offeror as an indicator of the likelihood that the offeror will successfully perform a contract to be awarded by that official.  1127. Determining benchmark compensation amount (a)  Definitions In this section: (1)  Benchmark compensation amount The term benchmark compensation amount, for a fiscal year, is the median amount of the compensation provided for all senior executives of all benchmark corporations for the most recent year for which data is available at the time the determination under subsection (b) is made. (2)  Benchmark corporation The term benchmark corporation, with respect to a fiscal year, means a publicly-owned United States corporation that has annual sales in excess of $50,000,000 for the fiscal year. (3)  Compensation The term compensation, for a fiscal year, means the total amount of wages, salary, bonuses, and deferred compensation for the fiscal year, whether paid, earned, or otherwise accruing, as recorded in an employers cost accounting records for the fiscal year. (4)  Fiscal year The term fiscal year means a fiscal year a contractor establishes for accounting purposes. (5)  Publicly-owned united states corporation The term publicly-owned United States corporation means a corporation (A) organized under the laws of a State of the United States, the District of Columbia, Puerto Rico, or a possession of the United States; and (B) whose voting stock is publicly traded. (6)  Senior executives The term senior executives, with respect to a contractor, means the 5 most highly compensated employees in management positions at each home office and each segment of the contractor. (b)  Determining Benchmark Compensation Amount For purposes of section 4304(a)(16) of this title section 3744(a)(16) of title 10 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3689 Pub. L. 11781, div. A, title XVII,  1702(h)(1) Dec. 27, 2021 135 Stat. 2158  Repeal of Section Pub. L. 11367, div. A, title VII,  702(b)(1) Dec. 26, 2013 127 Stat. 1189 Dec. 26, 2013 Pub. L. 11366, div. A, title VIII,  811(c)(1) Dec. 26, 2013 127 Stat. 806 Dec. 26, 2013       Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1127(a)(1) 41:435(b). Pub. L. 93400,  39 Pub. L. 10585, title VIII,  808(c)(1) Nov. 18, 1997 111 Stat. 1837 Pub. L. 105261, title VIII,  804(c)(1) Oct. 17, 1998 112 Stat. 2083 1127(a)(2) 41:435(c)(3). 1127(a)(3) 41:435(c)(1). 1127(a)(4) 41:435(c)(5). 1127(a)(5) 41:435(c)(4). 1127(a)(6) 41:435(c)(2). 1127(b) 41:435(a). Editorial Notes Amendments 2021Subsec. (b). Pub. L. 11781 Statutory Notes and Related Subsidiaries Effective Date of Repeal Repeal by Pub. L. 11367 Dec. 26, 2013 section 702(c) of Pub. L. 11367 section 4304 of this title Repeal by Pub. L. 11366 Dec. 26, 2013 section 811(d) of Pub. L. 11366 section 4304 of this title Exclusive Applicability of Provisions Limiting Allowability of Compensation for Certain Contractor Personnel Pub. L. 10585, div. A, title VIII,  808(f) Nov. 18, 1997 111 Stat. 1838 Notwithstanding any other provision of law, no other limitation in law on the allowability of costs of compensation of senior executives under covered contracts shall apply to such costs of compensation incurred after January 1, 1998 Definitions for Purposes of Section 808 of Pub. L. 10585 Pub. L. 10585, div. A, title VIII,  808(g) Nov. 18, 1997 111 Stat. 1838 Pub. L. 105261, div. A, title VIII,  804(c)(2) Oct. 17, 1998 112 Stat. 2083  In this section [see Tables for classification]: (1) The term covered contract has the meaning given such term in section 2324( l 10 U.S.C. 3741 l 41 U.S.C. 256 l 41 U.S.C. 4301 (2) The terms compensation and senior executives have the meanings given such terms in section 2324( l 10 U.S.C. 3741 10 U.S.C. 2324 l 41 U.S.C. 4301  1128. Maintaining necessary capability with respect to acquisition of architectural and engineering services The Administrator, in consultation with the Secretary of Defense, the Administrator of General Services, and the Director of the Office of Personnel Management, shall develop and implement a plan to ensure that the Federal Government maintains the necessary capability with respect to the acquisition of architectural and engineering services to (1) ensure that Federal Government employees have the expertise to determine agency requirements for those services; (2) establish priorities and programs, including acquisition plans; (3) establish professional standards; (4) develop scopes of work; and (5) award and administer contracts for those services. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3690        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1128 41:433 note. Pub. L. 108136, title XIV,  1414 Nov. 24, 2003 117 Stat. 1666  1129. Center of excellence in contracting for services  The Administrator shall maintain a center of excellence in contracting for services. The center shall assist the acquisition community by identifying, and serving as a clearinghouse for, best practices in contracting for services in the public and private sectors. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3690        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1129 41:405 note. Pub. L. 108136, title XIV,  1431(b) Nov. 24, 2003 117 Stat. 1671 The words Not later than 180 days after the date of the enactment of this Act are omitted, and the word maintain is substituted for establish, to eliminate obsolete words.  1130. Effect of division on other law  This division does not impair or affect the authorities or responsibilities relating to the procurement of real property conferred by division C of this subtitle and chapters 1 to 11 of title 40. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3690        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1130 41:405(h)(1). Pub. L. 93400,  6(h)(1) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1328 Pub. L. 104106, title LVI,  5607(d) Feb. 10, 1996 110 Stat. 702  1131. Annual report  The Administrator annually shall submit to Congress an assessment of the progress made in executive agencies in implementing the policy regarding major acquisitions that is stated in section 3103(a) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3690        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1131 41:405(k). Pub. L. 93400,  6(k) Pub. L. 103355, title V,  5051(b) Oct. 13, 1994 108 Stat. 3351 Pub. L. 10585, title VIII,  851(b) Nov. 18, 1997 111 Stat. 1851 CHAPTER 12 FEDERAL ACQUISITION INSTITUTE    Sec.  1201. Federal Acquisition Institute.  1201. Federal Acquisition Institute (a)  In General There is established a Federal Acquisition Institute (FAI) in order to (1) foster and promote the development of a professional acquisition workforce Government-wide; (2) promote and coordinate Government-wide research and studies to improve the procurement process and the laws, policies, methods, regulations, procedures, and forms relating to acquisition by the executive agencies; (3) collect data and analyze acquisition workforce data from the Office of Personnel Management, the heads of executive agencies, and, through periodic surveys, from individual employees; (4) periodically analyze acquisition career fields to identify critical competencies, duties, tasks, and related academic prerequisites, skills, and knowledge; (5) coordinate and assist agencies in identifying and recruiting highly qualified candidates for acquisition fields; (6) develop instructional materials for acquisition personnel in coordination with private and public acquisition colleges and training facilities; (7) evaluate the effectiveness of training and career development programs for acquisition personnel; (8) promote the establishment and utilization of academic programs by colleges and universities in acquisition fields; (9) facilitate, to the extent requested by agencies, interagency intern and training programs; (10) collaborate with other civilian agency acquisition training programs to leverage training supporting all members of the civilian agency acquisition workforce; (11) assist civilian agencies with their acquisition and capital planning efforts; and (12) perform other career management or research functions as directed by the Administrator. (b)  Budget Resources and Authority. (1)  In general The Administrator shall recommend to the Administrator of General Services sufficient budget resources and authority for the Federal Acquisition Institute to support Government-wide training standards and certification requirements necessary to enhance the mobility and career opportunities of the Federal acquisition workforce. (2)  Acquisition workforce training fund Subject to the availability of funds, the Administrator of General Services shall provide the Federal Acquisition Institute with amounts from the acquisition workforce training fund established under section 1703(i) of this title (c)  Federal Acquisition Institute Board of Directors. (1)  Reporting to administrator The Federal Acquisition Institute shall report through its Board of Directors directly to the Administrator. (2)  Composition The Board shall be composed of not more than 8 individuals from the Federal Government representing a mix of acquisition functional areas, all of whom shall be appointed by the Administrator. (3)  Duties The Board shall provide general direction to the Federal Acquisition Institute to ensure that the Institute (A) meets its statutory requirements; (B) meets the needs of the Federal acquisition workforce; (C) implements appropriate programs; (D) coordinates with appropriate organizations and groups that have an impact on the Federal acquisition workforce; (E) develops and implements plans to meet future challenges of the Federal acquisition workforce; and (F) works closely with the Defense Acquisition University. (4)  Recommendations The Board shall make recommendations to the Administrator regarding the development and execution of the annual budget of the Federal Acquisition Institute. (d)  Director The Director of the Federal Acquisition Institute shall be appointed by, be subject to the direction and control of, and report directly to the Administrator. (e)  Annual Report The Administrator shall submit to the Committee on Homeland Security and Governmental Affairs and the Committee on Appropriations of the Senate and the Committee on Oversight and Government Reform and the Committee on Appropriations of the House of Representatives an annual report on the projected budget needs and expense plans of the Federal Acquisition Institute to fulfill its mandate. (Added Pub. L. 11281, div. A, title VIII,  864(b)(1) Dec. 31, 2011 125 Stat. 1523  Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023 Construction Pub. L. 11281, div. A, title VIII,  864(e) Dec. 31, 2011 125 Stat. 1525 Nothing in this section [enacting this chapter and amending sections 1122, 1703, and 1704 of this title], or the amendments made by this section, shall be construed to preclude the Secretary of Defense from establishing acquisition workforce policies, procedures, training standards, and certification requirements for acquisition positions in the Department of Defense, as provided in chapter 87 of title 10, United States Code. Training Course on Human Trafficking and Government Contracting Pub. L. 115425, title I,  113 Jan. 8, 2019 132 Stat. 5477 Any curriculum, including any continuing education curriculum, for the acquisition workforce used by the Federal Acquisition Institute established under section 1201 of title 41 CHAPTER 13 ACQUISITION COUNCILS    SUBCHAPTER IFEDERAL ACQUISITION REGULATORY COUNCIL  Sec.  1301. Definition.  1302. Establishment and membership.  1303. Functions and authority.  1304. Contract clauses and certifications.  SUBCHAPTER IICHIEF ACQUISITION OFFICERS COUNCIL  1311. Establishment and membership.  1312. Functions.  SUBCHAPTER IIIFEDERAL ACQUISITION SUPPLY CHAIN SECURITY  1321. Definitions.  1322. Federal Acquisition Security Council establishment and membership.  1323. Functions and authorities.  1324. Strategic plan.  1325. Annual report.  1326. Requirements for executive agencies.  1327. Judicial review procedures.  1328. Termination.   Editorial Notes  Amendments  2018 Pub. L. 115390, title II,  202(b) Dec. 21, 2018 132 Stat. 5188 SUBCHAPTER I FEDERAL ACQUISITION REGULATORY COUNCIL  1301. Definition  In this subchapter, the term Council means the Federal Acquisition Regulatory Council established under section 1302(a) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3691        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1301 41:403(17). Pub. L. 93400,  4(17) Pub. L. 108375, title VIII,  807(b) Oct. 28, 2004 118 Stat. 2011  1302. Establishment and membership (a)  Establishment There is a Federal Acquisition Regulatory Council to assist in the direction and coordination of Government-wide procurement policy and Government-wide procurement regulatory activities in the Federal Government. (b)  Membership. (1)  Makeup of council The Council consists of (A) the Administrator; (B) the Secretary of Defense; (C) the Administrator of National Aeronautics and Space; and (D) the Administrator of General Services. (2)  Designation of other officials. (A)  Officials who may be designated Notwithstanding section 121(d)(1) and (2) of title 40, the officials specified in subparagraphs (B) to (D) of paragraph (1) may designate to serve on and attend meetings of the Council in place of that official (i) the official assigned by statute with the responsibility for acquisition policy in each of their respective agencies or, in the case of the Secretary of Defense, an official at an organizational level not lower than an Assistant Secretary of Defense within the Office of the Under Secretary of Defense for Acquisition and Sustainment; or (ii) if no official of that agency is assigned by statute with the responsibility for acquisition policy for that agency, the official designated pursuant to section 1702(c) of this title (B)  Limitation on designation No other official or employee may be designated to serve on the Council. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3691 Pub. L. 11692, div. A, title IX,  902(88) Dec. 20, 2019 133 Stat. 1554        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1302(a) 41:421(a). Pub. L. 93400,  25(a) Pub. L. 100679,  4 Nov. 17, 1988 102 Stat. 4056 Pub. L. 101510, title VIII,  807 Nov. 5, 1990 104 Stat. 1593 Pub. L. 104106, title XLIII,  4322(a)(2) Feb. 10, 1996 110 Stat. 677 1302(b) 41:421(b). In subsection (a), the words (hereinafter in this section referred to as the Council) are omitted as unnecessary. In subsection (b)(2)(A)(i), the words Under Secretary of Defense for Acquisition, Technology, and Logistics are substituted for Under Secretary of Defense for Acquisition and Technology because of section 911(a)(1) of the National Defense Authorization Act for Fiscal Year 2000 ( Public Law 10665 113 Stat. 717 10 U.S.C. 133 In subsection (b)(2)(A)(ii), the cross-reference to section 16(3) of the Office of Federal Procurement Policy Act (41:414(3)) is treated as a cross-reference to section 16(c) of the Act to reflect the amendment of section 16 by section 1421(a)(1) of the National Defense Authorization Act for Fiscal Year 2004 ( Public Law 108136 117 Stat. 1666 Editorial Notes Amendments 2019Subsec. (b)(2)(A)(i). Pub. L. 11692 Statutory Notes and Related Subsidiaries Status of Director of Defense Procurement Pub. L. 102190, div. A, title VIII,  809 Dec. 5, 1991 105 Stat. 1423 Pub. L. 103160, div. A, title IX,  904(f) Nov. 30, 1993 107 Stat. 1729 Pub. L. 10665, div. A, title IX,  911(a)(1) Oct. 5, 1999 113 Stat. 717 For the purposes of the amendment made by section 807 of the National Defense Authorization Act for Fiscal Year 1991 ( Public Law 101510 104 Stat. 1593 41 U.S.C. 421(b)(2) 41 U.S.C. 1302(b)(2)  1303. Functions and authority (a)  Functions. (1)  Issue and maintain federal acquisition regulation Subject to sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title, the Administrator of General Services, the Secretary of Defense, and the Administrator of National Aeronautics and Space, pursuant to their respective authorities under division C of this subtitle, chapter 4 of title 10, chapter 137 legacy provisions (as such term is defined in section 3016 of title 10 42 U.S.C. 2451 1 1 (2)  Limitation on other regulations Other regulations relating to procurement issued by an executive agency shall be limited to (A) regulations essential to implement Government-wide policies and procedures within the agency; and (B) additional policies and procedures required to satisfy the specific and unique needs of the agency. (3)  Ensure consistent regulations The Administrator, in consultation with the Council, shall ensure that procurement regulations prescribed by executive agencies are consistent with the Federal Acquisition Regulation and in accordance with the policies prescribed pursuant to section 1121(b) of this title (4)  Request to review regulation. (A)  Basis for request Under procedures the Administrator establishes, a person may request the Administrator to review a regulation relating to procurement on the basis that the regulation is inconsistent with the Federal Acquisition Regulation. (B)  Period of review Unless the request is frivolous or does not, on its face, state a valid basis for the review, the Administrator shall complete the review not later than 60 days after receiving the request. The time for completion of the review may be extended if the Administrator determines that an additional period of review is required. The Administrator shall advise the requester of the reasons for the extension and the date by which the review will be completed. (5)  When regulation is inconsistent or needs to be improved If the Administrator determines that a regulation relating to procurement is inconsistent with the Federal Acquisition Regulation or that the regulation otherwise should be revised to remove an inconsistency with the policies prescribed under section 1121(b) of this title (6)  Decisions to be in writing and publicly available The decisions of the Administrator shall be in writing and made publicly available. (b)  Additional Responsibilities of Membership. (1)  In general Subject to the authority, direction, and control of the head of the agency concerned, each official who represents an agency on the Council pursuant to section 1302(b) of this title (A) approve or disapprove all regulations relating to procurement that are proposed for public comment, prescribed in final form, or otherwise made effective by that agency before the regulation may be prescribed in final form, or otherwise made effective, except that the official may grant an interim approval, without review, for not more than 60 days for a procurement regulation in urgent and compelling circumstances; (B) carry out the responsibilities of that agency set forth in chapter 35 of title 44 for each information collection request that relates to procurement rules or regulations; and (C) eliminate or reduce (i) any redundant or unnecessary levels of review and approval in the procurement system of that agency; and (ii) redundant or unnecessary procurement regulations which are unique to that agency. (2)  Limitation on delegation The authority to review and approve or disapprove regulations under paragraph (1)(A) may not be delegated to an individual outside the office of the official who represents the agency on the Council pursuant to section 1302(b) of this title (c)  Governing Policies All actions of the Council and of members of the Council shall be in accordance with and furtherance of the policies prescribed under section 1121(b) of this title (d)  General Authority With Respect to Federal Acquisition Regulation Subject to section 1121(d) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3691 Pub. L. 11781, div. A, title XVII,  1702(h)(2) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1303(a) 41:421(c). Pub. L. 93400,  25(c) Pub. L. 100679,  4 Nov. 17, 1988 102 Stat. 4056 Pub. L. 104201, title VIII,  822 Sept. 23, 1996 110 Stat. 2609 Pub. L. 10585, title VIII,  841(d) Nov. 18, 1997 111 Stat. 1843 1303(b) 41:421(d). 1303(c) 41:421(e). 1303(d) 41:421(f). In subsection (a)(6), the text of 41:421(c)(6) (last sentence) is omitted because 41:407 was repealed by section 4305(b) of the National Defense Authorization Act of Fiscal Year 1996 ( Public Law 104106 110 Stat. 665 In subsection (b)(1)(A), the words after 60 days after November 17, 1988 In subsection (b)(1)(B), the words (as that term is defined in section 3502(11) of title 44 Public Law 10413 109 Stat. 163 Editorial Notes  References in Text The National Aeronautics and Space Act of 1958, referred to in subsec. (a)(1), is Pub. L. 85568 July 29, 1958 72 Stat. 426 Pub. L. 111314 Dec. 18, 2010 124 Stat. 3328 section 10101 of Title 51 Amendments 2021Subsec. (a)(1). Pub. L. 11781 section 3016 of title 10  1304. Contract clauses and certifications (a)  Repetitive Nonstandard Contract Clauses Discouraged The Council shall prescribe regulations to discourage the use of a nonstandard contract clause on a repetitive basis. The regulations shall include provisions that (1) clearly define what types of contract clauses are to be treated as nonstandard clauses; and (2) require prior approval for the use of a nonstandard clause on a repetitive basis by an official at a level of responsibility above the contracting officer. (b)  When Certification Required. (1)  By law A provision of law may not be construed as requiring a certification by a contractor or offeror in a procurement made or to be made by the Federal Government unless that provision of law specifically provides that such a certification shall be required. (2)  In federal acquisition regulation A requirement for a certification by a contractor or offeror may not be included in the Federal Acquisition Regulation unless (A) the certification requirement is specifically imposed by statute; or (B) written justification for the certification requirement is provided to the Administrator by the Council and the Administrator approves in writing the inclusion of the certification requirement. (3)  Executive agency procurement regulation. (A)  Definition In subparagraph (B), the term head of the executive agency with respect to a military department means the Secretary of Defense. (B)  When certification requirement may be included in regulation A requirement for a certification by a contractor or offeror may not be included in a procurement regulation of an executive agency unless (i) the certification requirement is specifically imposed by statute; or (ii) written justification for the certification requirement is provided to the head of the executive agency by the senior procurement executive of the agency and the head of the executive agency approves in writing the inclusion of the certification requirement. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3693        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1304(a) 41:425(a). Pub. L. 93400,  29 Pub. L. 103355, title I,  1093 Oct. 13, 1994 108 Stat. 3273 Pub. L. 104106, title XLIII,  4301(b)(2)(A) Feb. 10, 1996 110 Stat. 657 1304(b)(1) 41:425(b). 1304(b)(2), (3) 41:425(c). Statutory Notes and Related Subsidiaries Current Certification Requirements Pub. L. 104106, div. D, title XLIII,  4301(b)(1) Feb. 10, 1996 110 Stat. 656  (A) Not later than 210 days after the date of the enactment of this Act [ Feb. 10, 1996 (i) the Federal Acquisition Regulatory Council provides the Administrator with a written justification for the requirement and a determination that there is no less burdensome means for administering and enforcing the particular regulation that contains the certification requirement; and (ii) the Administrator approves in writing the retention of the certification requirement. (B) (i) Not later than 210 days after the date of the enactment of this Act, the head of each executive agency that has agency procurement regulations containing one or more certification requirements for contractors and offerors that are not specifically imposed by statute shall issue for public comment a proposal to amend the regulations to remove the certification requirements. The head of the executive agency may omit such a certification requirement from the proposal only if (I) the senior procurement executive for the executive agency provides the head of the executive agency with a written justification for the requirement and a determination that there is no less burdensome means for administering and enforcing the particular regulation that contains the certification requirement; and (II) the head of the executive agency approves in writing the retention of such certification requirement. (ii) For purposes of clause (i), the term head of the executive agency with respect to a military department means the Secretary of Defense. Executive Documents  Addressing Tax Delinquency by Government Contractors Memorandum of President of the United States, Jan. 20, 2010 Memorandum for the Heads of Executive Departments and Agencies The Federal Government pays more than half a trillion dollars a year to contractors and has an important obligation to protect American taxpayer money and the integrity of the Federal acquisition process. Yet reports by the Government Accountability Office (GAO) state that Federal contracts are awarded to tens of thousands of companies with serious tax delinquencies. The total amount in unpaid taxes owed by these contracting companies is estimated to be more than $5 billion. Too often, Federal contracting officials do not have the most basic information they need to make informed judgments about whether a company trying to win a Federal contract is delinquent in paying its taxes. We need to give our contracting officials the tools they need to protect taxpayer dollars. Accordingly, I hereby direct the Commissioner of Internal Revenue (Commissioner) to direct a review of certifications of non-delinquency in taxes that companies bidding for Federal contracts are required to submit pursuant to a 2008 amendment to the Federal Acquisition Regulation. I further direct that the Commissioner report to me within 90 days on the overall accuracy of contractors certifications. I also direct the Director of the Office of Management and Budget, working with the Secretary of the Treasury and other agency heads, to evaluate practices of contracting officers and debarring officials in response to contractors certifications of serious tax delinquencies and to provide me, within 90 days, recommendations on process improvements to ensure these contractors are not awarded new contracts, including a plan to make contractor certifications available in a Government-wide database, as is already being done with other information on contractors. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. The Director of the Office of Management and Budget is hereby authorized and directed to publish this memorandum in the Federal Register.  Barack Obama. SUBCHAPTER II CHIEF ACQUISITION OFFICERS COUNCIL  1311. Establishment and membership (a)  Establishment There is in the executive branch a Chief Acquisition Officers Council. (b)  Membership The members of the Council are (1) the Deputy Director for Management of the Office of Management and Budget; (2) the Administrator; (3) the Under Secretary of Defense for Acquisition and Sustainment; (4) the chief acquisition officer of each executive agency that is required to have a chief acquisition officer under section 1702 of this title (5) any other senior agency officer of each executive agency, appointed by the head of the agency in consultation with the Chairman of the Council, who can effectively assist the Council in performing the functions set forth in section 1312(b) of this title (c)  Leadership and Support. (1)  Chairman The Deputy Director for Management of the Office of Management and Budget is the Chairman of the Council. (2)  Vice chairman The Vice Chairman of the Council shall be selected by the Council from among its members. The Vice Chairman serves for one year and may serve multiple terms. (3)  Leader of activities The Administrator shall lead the activities of the Council on behalf of the Deputy Director for Management. (4)  Support The Administrator of General Services shall provide administrative and other support for the Council. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3694 Pub. L. 11692, div. A, title IX,  902(89) Dec. 20, 2019 133 Stat. 1554        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1311(a) 41:414b(a). Pub. L. 93400,  16A(a) Pub. L. 108136, title XIV,  1422(a) Nov. 24, 2003 117 Stat. 1668 1311(b) 41:414b(b)(1) (words before comma), (2)(5). 1311(c)(1) 41:414b(b)(1) (words after comma). 1311(c)(2) 41:414b(c)(2). 1311(c)(3) 41:414b(c)(1). 1311(c)(4) 41:414b(c)(3). Editorial Notes Amendments 2019Subsec. (b)(3). Pub. L. 11692  1312. Functions (a)  Principal Forum The Chief Acquisition Officers Council is the principal interagency forum for monitoring and improving the Federal acquisition system. (b)  Functions The Council shall perform functions that include the following: (1) Develop recommendations for the Director of the Office of Management and Budget on Federal acquisition policies and requirements. (2) Share experiences, ideas, best practices, and innovative approaches related to Federal acquisition. (3) Assist the Administrator in the identification, development, and coordination of multiagency projects and other innovative initiatives to improve Federal acquisition. (4) Promote effective business practices that ensure the timely delivery of best value products to the Federal Government and achieve appropriate public policy objectives. (5) Further integrity, fairness, competition, openness, and efficiency in the Federal acquisition system. (6) Work with the Office of Personnel Management to assess and address the hiring, training, and professional development needs of the Federal Government related to acquisition. (7) Work with the Administrator and the Federal Acquisition Regulatory Council to promote the business practices referred to in paragraph (4) and other results of the functions carried out under this subsection. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3694        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1312(a) 41:414b(d). Pub. L. 93400,  16A(d) Pub. L. 108136, title XIV,  1422(a) Nov. 24, 2003 117 Stat. 1668 1312(b) 41:414b(e). SUBCHAPTER III FEDERAL ACQUISITION SUPPLY CHAIN SECURITY  1321. Definitions In this subchapter: (1)  Appropriate congressional committees and leadership The term appropriate congressional committees and leadership means (A) the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Select Committee on Intelligence, and the majority and minority leader of the Senate; and (B) the Committee on Oversight and Government Reform, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Homeland Security, the Committee on Armed Services, the Committee on Energy and Commerce, the Permanent Select Committee on Intelligence, and the Speaker and minority leader of the House of Representatives. (2)  Council The term Council means the Federal Acquisition Security Council established under section 1322(a) of this title (3)  Covered article The term covered article has the meaning given that term in section 4713 of this title (4)  Covered procurement action The term covered procurement action has the meaning given that term in section 4713 of this title (5)  Information and communications technology The term information and communications technology has the meaning given that term in section 4713 of this title (6)  Intelligence community The term intelligence community has the meaning given that term in section 3(4) of the National Security Act of 1947 ( 50 U.S.C. 3003(4) (7)  National security system The term national security system has the meaning given that term in section 3552 of title 44 (8)  Supply chain risk The term supply chain risk has the meaning given that term in section 4713 of this title (Added Pub. L. 115390, title II,  202(a) Dec. 21, 2018 132 Stat. 5178  Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023 Effective Date Pub. L. 115390, title II,  202(c) Dec. 21, 2018 132 Stat. 5188 The amendments made by this section [enacting this subchapter] shall take effect on the date that is 90 days after the date of the enactment of this Act [ Dec. 21, 2018 Pub. L. 115390, title II,  205 Dec. 21, 2018 132 Stat. 5193 This title [see section 201 of Pub. L. 115390 section 101 of this title Dec. 21, 2018 Implementation Pub. L. 115390, title II,  202(d) Dec. 21, 2018 132 Stat. 5188  (1)  Interim final rule Not later than one year after the date of the enactment of this Act [ Dec. 21, 2018 (2)  Final rule Not later than one year after prescribing the interim final rule under paragraph (1) and considering public comments with respect to such interim final rule, the Council shall prescribe a final rule to implement subchapter III of chapter 13 of title 41, United States Code, as added by subsection (a). (3)  Failure to act. (A)  In general If the Council does not issue a final rule in accordance with paragraph (2) on or before the last day of the one-year period referred to in that paragraph, the Council shall submit to the appropriate congressional committees and leadership, not later than 10 days after such last day and every 90 days thereafter until the final rule is issued, a report explaining why the final rule was not timely issued and providing an estimate of the earliest date on which the final rule will be issued. (B)  Appropriate congressional committees and leadership defined In this paragraph, the term appropriate congressional committees and leadership has the meaning given that term in section 1321 of title 41  1322. Federal Acquisition Security Council establishment and membership (a)  Establishment There is established in the executive branch a Federal Acquisition Security Council. (b)  Membership. (1)  In general The following agencies shall be represented on the Council: (A) The Office of Management and Budget. (B) The General Services Administration. (C) The Department of Homeland Security, including the Cybersecurity and Infrastructure Security Agency. (D) The Office of the Director of National Intelligence, including the National Counterintelligence and Security Center. (E) The Department of Justice, including the Federal Bureau of Investigation. (F) The Department of Defense, including the National Security Agency. (G) The Department of Commerce, including the National Institute of Standards and Technology. (H) Such other executive agencies as determined by the Chairperson of the Council. (2)  Lead representatives. (A)  Designation. (i)  In general Not later than 45 days after the date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, the head of each agency represented on the Council shall designate a representative of that agency as the lead representative of the agency on the Council. (ii)  Requirements The representative of an agency designated under clause (i) shall have expertise in supply chain risk management, acquisitions, or information and communications technology. (B)  Functions The lead representative of an agency designated under subparagraph (A) shall ensure that appropriate personnel, including leadership and subject matter experts of the agency, are aware of the business of the Council. (c)  Chairperson. (1)  Designation Not later than 45 days after the date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, the Director of the Office of Management and Budget shall designate a senior-level official from the Office of Management and Budget to serve as the Chairperson of the Council. (2)  Functions The Chairperson shall perform functions that include (A) subject to subsection (d), developing a schedule for meetings of the Council; (B) designating executive agencies to be represented on the Council under subsection (b)(1)(H); (C) in consultation with the lead representative of each agency represented on the Council, developing a charter for the Council; and (D) not later than 7 days after completion of the charter, submitting the charter to the appropriate congressional committees and leadership. (d)  Meetings The Council shall meet not later than 60 days after the date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018 and not less frequently than quarterly thereafter. (Added Pub. L. 115390, title II,  202(a) Dec. 21, 2018 132 Stat. 5178  Editorial Notes  References in Text The date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, referred to in subsecs. (b)(2)(A)(i), (c)(1), and (d), is the date of enactment of Pub. L. 115390 Dec. 21, 2018 Statutory Notes and Related Subsidiaries Effective Date Section effective 90 days after Dec. 21, 2018 section 202(c) of Pub. L. 115390 section 1321 of this title Title II of Pub. L. 115390 Dec. 21, 2018 section 205 of Pub. L. 115390 section 1321 of this title  1323. Functions and authorities (a)  In General The Council shall perform functions that include the following: (1) Identifying and recommending development by the National Institute of Standards and Technology of supply chain risk management standards, guidelines, and practices for executive agencies to use when assessing and developing mitigation strategies to address supply chain risks, particularly in the acquisition and use of covered articles under section 1326(a) of this title (2) Identifying or developing criteria for sharing information with executive agencies, other Federal entities, and non-Federal entities with respect to supply chain risk, including information related to the exercise of authorities provided under this section and sections 1326 and 4713 of this title. At a minimum, such criteria shall address (A) the content to be shared; (B) the circumstances under which sharing is mandated or voluntary; and (C) the circumstances under which it is appropriate for an executive agency to rely on information made available through such sharing in exercising the responsibilities and authorities provided under this section and section 4713 of this title (3) Identifying an appropriate executive agency to (A) accept information submitted by executive agencies based on the criteria established under paragraph (2); (B) facilitate the sharing of information received under subparagraph (A) to support supply chain risk analyses under section 1326 of this title section 4713 of this title (C) share with the Council information regarding covered procurement actions by executive agencies taken under section 4713 of this title (D) inform the Council of orders issued under this section. (4) Identifying, as appropriate, executive agencies to provide (A) shared services, such as support for making risk assessments, validation of products that may be suitable for acquisition, and mitigation activities; and (B) common contract solutions to support supply chain risk management activities, such as subscription services or machine-learning-enhanced analysis applications to support informed decision making. (5) Identifying and issuing guidance on additional steps that may be necessary to address supply chain risks arising in the course of executive agencies providing shared services, common contract solutions, acquisitions vehicles, or assisted acquisitions. (6) Engaging with the private sector and other nongovernmental stakeholders in performing the functions described in paragraphs (1) and (2) and on issues relating to the management of supply chain risks posed by the acquisition of covered articles. (7) Carrying out such other actions, as determined by the Council, that are necessary to reduce the supply chain risks posed by acquisitions and use of covered articles. (b)  Program Office and Committees The Council may establish a program office and any committees, working groups, or other constituent bodies the Council deems appropriate, in its sole and unreviewable discretion, to carry out its functions. (c)  Authority for Exclusion or Removal Orders. (1)  Criteria To reduce supply chain risk, the Council shall establish criteria and procedures for (A) recommending orders applicable to executive agencies requiring the exclusion of sources or covered articles from executive agency procurement actions (in this section referred to as exclusion orders); (B) recommending orders applicable to executive agencies requiring the removal of covered articles from executive agency information systems (in this section referred to as removal orders); (C) requesting and approving exceptions to an issued exclusion or removal order when warranted by circumstances, including alternative mitigation actions or other findings relating to the national interest, including national security reviews, national security investigations, or national security agreements; and (D) ensuring that recommended orders do not conflict with standards and guidelines issued under section 11331 of title 40 (2)  Recommendations The Council shall use the criteria established under paragraph (1), information made available under subsection (a)(3), and any other information the Council determines appropriate to issue recommendations, for application to executive agencies or any subset thereof, regarding the exclusion of sources or covered articles from any executive agency procurement action, including source selection and consent for a contractor to subcontract, or the removal of covered articles from executive agency information systems. Such recommendations shall include (A) information necessary to positively identify the sources or covered articles recommended for exclusion or removal; (B) information regarding the scope and applicability of the recommended exclusion or removal order; (C) a summary of any risk assessment reviewed or conducted in support of the recommended exclusion or removal order; (D) a summary of the basis for the recommendation, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk; (E) a description of the actions necessary to implement the recommended exclusion or removal order; and (F) where practicable, in the Councils sole and unreviewable discretion, a description of mitigation steps that could be taken by the source that may result in the Council rescinding a recommendation. (3)  Notice of recommendation and review A notice of the Councils recommendation under paragraph (2) shall be issued to any source named in the recommendation advising (A) that a recommendation has been made; (B) of the criteria the Council relied upon under paragraph (1) and, to the extent consistent with national security and law enforcement interests, of information that forms the basis for the recommendation; (C) that, within 30 days after receipt of notice, the source may submit information and argument in opposition to the recommendation; (D) of the procedures governing the review and possible issuance of an exclusion or removal order pursuant to paragraph (5); and (E) where practicable, in the Councils sole and unreviewable discretion, a description of mitigation steps that could be taken by the source that may result in the Council rescinding the recommendation. (4)  Confidentiality Any notice issued to a source under paragraph (3) shall be kept confidential until (A) an exclusion or removal order is issued pursuant to paragraph (5); and (B) the source has been notified pursuant to paragraph (6). (5)  Exclusion and removal orders. (A)  Order issuance Recommendations of the Council under paragraph (2), together with any information submitted by a source under paragraph (3) related to such a recommendation, shall be reviewed by the following officials, who may issue exclusion and removal orders based upon such recommendations: (i) The Secretary of Homeland Security, for exclusion and removal orders applicable to civilian agencies, to the extent not covered by clause (ii) or (iii). (ii) The Secretary of Defense, for exclusion and removal orders applicable to the Department of Defense and national security systems other than sensitive compartmented information systems. (iii) The Director of National Intelligence, for exclusion and removal orders applicable to the intelligence community and sensitive compartmented information systems, to the extent not covered by clause (ii). (B)  Delegation The officials identified in subparagraph (A) may not delegate any authority under this subparagraph to an official below the level one level below the Deputy Secretary or Principal Deputy Director, except that the Secretary of Defense may delegate authority for removal orders to the Commander of the United States Cyber Command, who may not redelegate such authority to an official below the level one level below the Deputy Commander. (C)  Facilitation of exclusion orders If officials identified under this paragraph from the Department of Homeland Security, the Department of Defense, and the Office of the Director of National Intelligence issue orders collectively resulting in a governmentwide exclusion, the Administrator for General Services and officials at other executive agencies responsible for management of the Federal Supply Schedules, governmentwide acquisition contracts and multi-agency contracts shall help facilitate implementation of such orders by removing the covered articles or sources identified in the orders from such contracts. (D)  Review of exclusion and removal orders The officials identified under this paragraph shall review all exclusion and removal orders issued under subparagraph (A) not less frequently than annually pursuant to procedures established by the Council. (E)  Rescission Orders issued pursuant to subparagraph (A) may be rescinded by an authorized official from the relevant issuing agency. (6)  Notifications Upon issuance of an exclusion or removal order pursuant to paragraph (5)(A), the official identified under that paragraph who issued the order shall (A) notify any source named in the order of (i) the exclusion or removal order; and (ii) to the extent consistent with national security and law enforcement interests, information that forms the basis for the order; (B) provide classified or unclassified notice of the exclusion or removal order to the appropriate congressional committees and leadership; and (C) provide the exclusion or removal order to the agency identified in subsection (a)(3). (7)  Compliance Executive agencies shall comply with exclusion and removal orders issued pursuant to paragraph (5). (d)  Authority To Request Information The Council may request such information from executive agencies as is necessary for the Council to carry out its functions. (e)  Relationship to Other Councils The Council shall consult and coordinate, as appropriate, with other relevant councils and interagency committees, including the Chief Information Officers Council, the Chief Acquisition Officers Council, the Federal Acquisition Regulatory Council, and the Committee on Foreign Investment in the United States, with respect to supply chain risks posed by the acquisition and use of covered articles. (f)  Rules of Construction Nothing in this section shall be construed (1) to limit the authority of the Office of Federal Procurement Policy to carry out the responsibilities of that Office under any other provision of law; or (2) to authorize the issuance of an exclusion or removal order based solely on the fact of foreign ownership of a potential procurement source that is otherwise qualified to enter into procurement contracts with the Federal Government. (Added Pub. L. 115390, title II,  202(a) Dec. 21, 2018 132 Stat. 5180  Statutory Notes and Related Subsidiaries Effective Date Section effective 90 days after Dec. 21, 2018 section 202(c) of Pub. L. 115390 section 1321 of this title Title II of Pub. L. 115390 Dec. 21, 2018 section 205 of Pub. L. 115390 section 1321 of this title  1324. Strategic plan (a)  In General Not later than 180 days after the date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, the Council shall develop a strategic plan for addressing supply chain risks posed by the acquisition of covered articles and for managing such risks that includes (1) the criteria and processes required under section 1323(a) of this title (2) an identification of existing authorities for addressing such risks; (3) an identification and promulgation of best practices and procedures and available resources for executive agencies to assess and mitigate such risks; (4) recommendations for any legislative, regulatory, or other policy changes to improve efforts to address such risks; (5) recommendations for any legislative, regulatory, or other policy changes to incentivize the adoption of best practices for supply chain risk management by the private sector; (6) an evaluation of the effect of implementing new policies or procedures on existing contracts and the procurement process; (7) a plan for engaging with executive agencies, the private sector, and other nongovernmental stakeholders to address such risks; (8) a plan for identification, assessment, mitigation, and vetting of supply chain risks from existing and prospective information and communications technology made available by executive agencies to other executive agencies through common contract solutions, shared services, acquisition vehicles, or other assisted acquisition services; and (9) plans to strengthen the capacity of all executive agencies to conduct assessments of (A) the supply chain risk posed by the acquisition of covered articles; and (B) compliance with the requirements of this subchapter. (b)  Submission to Congress Not later than 7 calendar days after completion of the strategic plan required by subsection (a), the Chairperson of the Council shall submit the plan to the appropriate congressional committees and leadership. (Added Pub. L. 115390, title II,  202(a) Dec. 21, 2018 132 Stat. 5184  Editorial Notes  References in Text The date of the enactment of the Federal Acquisition Supply Chain Security Act of 2018, referred to in subsec. (a), is the date of enactment of Pub. L. 115390 Dec. 21, 2018 Statutory Notes and Related Subsidiaries Effective Date Section effective 90 days after Dec. 21, 2018 section 202(c) of Pub. L. 115390 section 1321 of this title Title II of Pub. L. 115390 Dec. 21, 2018 section 205 of Pub. L. 115390 section 1321 of this title  1325. Annual report  Not later than December 31 of each year, the Chairperson of the Council shall submit to the appropriate congressional committees and leadership a report on the activities of the Council during the preceding 12-month period. (Added Pub. L. 115390, title II,  202(a) Dec. 21, 2018 132 Stat. 5184  Statutory Notes and Related Subsidiaries Effective Date Section effective 90 days after Dec. 21, 2018 section 202(c) of Pub. L. 115390 section 1321 of this title Title II of Pub. L. 115390 Dec. 21, 2018 section 205 of Pub. L. 115390 section 1321 of this title  1326. Requirements for executive agencies (a)  In General The head of each executive agency shall be responsible for (1) assessing the supply chain risk posed by the acquisition and use of covered articles and avoiding, mitigating, accepting, or transferring that risk, as appropriate and consistent with the standards, guidelines, and practices identified by the Council under section 1323(a)(1); and (2) prioritizing supply chain risk assessments conducted under paragraph (1) based on the criticality of the mission, system, component, service, or asset. (b)  Inclusions The responsibility for assessing supply chain risk described in subsection (a) includes (1) developing an overall supply chain risk management strategy and implementation plan and policies and processes to guide and govern supply chain risk management activities; (2) integrating supply chain risk management practices throughout the life cycle of the system, component, service, or asset; (3) limiting, avoiding, mitigating, accepting, or transferring any identified risk; (4) sharing relevant information with other executive agencies as determined appropriate by the Council in a manner consistent with section 1323(a) of this title (5) reporting on progress and effectiveness of the agencys supply chain risk management consistent with guidance issued by the Office of Management and Budget and the Council; and (6) ensuring that all relevant information, including classified information, with respect to acquisitions of covered articles that may pose a supply chain risk, consistent with section 1323(a) of this title (c)  Interagency Acquisitions. (1)  In general Except as provided in paragraph (2), in the case of an interagency acquisition, subsection (a) shall be carried out by the head of the executive agency whose funds are being used to procure the covered article. (2)  Assisted acquisitions In an assisted acquisition, the parties to the acquisition shall determine, as part of the interagency agreement governing the acquisition, which agency is responsible for carrying out subsection (a). (3)  Definitions In this subsection, the terms assisted acquisition and interagency acquisition have the meanings given those terms in section 2.101 of title 48, Code of Federal Regulations (or any corresponding similar regulation or ruling). (d)  Assistance The Secretary of Homeland Security may (1) assist executive agencies in conducting risk assessments described in subsection (a) and implementing mitigation requirements for information and communications technology; and (2) provide such additional guidance or tools as are necessary to support actions taken by executive agencies. (Added Pub. L. 115390, title II,  202(a) Dec. 21, 2018 132 Stat. 5184  Statutory Notes and Related Subsidiaries Effective Date Section effective 90 days after Dec. 21, 2018 section 202(c) of Pub. L. 115390 section 1321 of this title Title II of Pub. L. 115390 Dec. 21, 2018 section 205 of Pub. L. 115390 section 1321 of this title  1327. Judicial review procedures (a)  In General Except as provided in subsection (b) and chapter 71 of this title, and notwithstanding any other provision of law, an action taken under section 1323 or 4713 of this title, or any action taken by an executive agency to implement such an action, shall not be subject to administrative review or judicial review, including bid protests before the Government Accountability Office or in any Federal court. (b)  Petitions. (1)  In general Not later than 60 days after a party is notified of an exclusion or removal order under section 1323(c)(6) of this title section 4713 of this title (2)  Standard of review The Court shall hold unlawful a covered action taken under sections 1323 or 4713 of this title, in response to a petition that the court finds to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; (D) lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (3); or (E) not in accord with procedures required by law. (3)  Exclusive jurisdiction The United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction over claims arising under sections 1323(c)(5) or 4713 of this title against the United States, any United States department or agency, or any component or official of any such department or agency, subject to review by the Supreme Court of the United States under section 1254 of title 28 (4)  Administrative record and procedures. (A)  In general The procedures described in this paragraph shall apply to the review of a petition under this section. (B)  Administrative record. (i)  Filing of record The United States shall file with the court an administrative record, which shall consist of the information that the appropriate official relied upon in issuing an exclusion or removal order under section 1323(c)(5) or a covered procurement action under section 4713 of this title (ii)  Unclassified, nonprivileged information All unclassified information contained in the administrative record that is not otherwise privileged or subject to statutory protections shall be provided to the petitioner with appropriate protections for any privileged or confidential trade secrets and commercial or financial information. (iii)  In camera and ex parte The following information may be included in the administrative record and shall be submitted only to the court ex parte and in camera: (I) Classified information. (II) Sensitive security information, as defined by section 1520.5 of title 49, Code of Federal Regulations. (III) Privileged law enforcement information. (IV) Information obtained or derived from any activity authorized under the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 50 U.S.C. 1806 50 U.S.C. 1825 50 U.S.C. 1845 50 U.S.C. 1881e (V) Information subject to privilege or protections under any other provision of law. (iv)  Under seal Any information that is part of the administrative record filed ex parte and in camera under clause (iii), or cited by the court in any decision, shall be treated by the court consistent with the provisions of this subparagraph and shall remain under seal and preserved in the records of the court to be made available consistent with the above provisions in the event of further proceedings. In no event shall such information be released to the petitioner or as part of the public record. (v)  Return After the expiration of the time to seek further review, or the conclusion of further proceedings, the court shall return the administrative record, including any and all copies, to the United States. (C)  Exclusive remedy A determination by the court under this subsection shall be the exclusive judicial remedy for any claim described in this section against the United States, any United States department or agency, or any component or official of any such department or agency. (D)  Rule of construction Nothing in this section shall be construed as limiting, superseding, or preventing the invocation of, any privileges or defenses that are otherwise available at law or in equity to protect against the disclosure of information. (c)  Definition In this section, the term classified information (1) has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.); and (2) includes (A) any information or material that has been determined by the United States Government pursuant to an Executive order, statute, or regulation to require protection against unauthorized disclosure for reasons of national security; and (B) any restricted data, as defined in section 11 of the Atomic Energy Act of 1954 ( 42 U.S.C. 2014 (Added Pub. L. 115390, title II,  202(a) Dec. 21, 2018 132 Stat. 5185  Editorial Notes  References in Text The Foreign Intelligence Surveillance Act of 1978, referred to in subsec. (b)(4)(B)(iii)(IV), is Pub. L. 95511 Oct. 25, 1978 92 Stat. 1783 section 1801 of Title 50 The Classified Information Procedures Act, referred to in subsec. (c)(1), is Pub. L. 96456 Oct. 15, 1980 94 Stat. 2025 Statutory Notes and Related Subsidiaries Effective Date Section effective 90 days after Dec. 21, 2018 section 202(c) of Pub. L. 115390 section 1321 of this title Title II of Pub. L. 115390 Dec. 21, 2018 section 205 of Pub. L. 115390 section 1321 of this title  1328. Termination  This subchapter shall terminate on December 31, 2033 (Added Pub. L. 115390, title II,  202(a) Dec. 21, 2018 132 Stat. 5188 Pub. L. 117263, div. E, title LIX,  5949(k)(1) Dec. 23, 2022 136 Stat. 3492  Editorial Notes Amendments 2022 Pub. L. 117263 December 31, 2033 Statutory Notes and Related Subsidiaries Effective Date Section effective 90 days after Dec. 21, 2018 section 202(c) of Pub. L. 115390 section 1321 of this title Title II of Pub. L. 115390 Dec. 21, 2018 section 205 of Pub. L. 115390 section 1321 of this title CHAPTER 15 COST ACCOUNTING STANDARDS    Sec.  1501. Cost Accounting Standards Board.  1502. Cost accounting standards.  1503. Contract price adjustment.  1504. Effect on other standards and regulations.  1505. Examinations.  1506. Authorization of appropriations.  1501. Cost Accounting Standards Board (a)  Organization The Cost Accounting Standards Board is an independent board in the Office of Federal Procurement Policy. (b)  Membership. (1)  Number of members, chairman, and appointment The Board consists of 5 members. One member is the Administrator, who serves as Chairman. The other 4 members, all of whom shall have experience in Federal Government contract cost accounting, are as follows: (A) 2 representatives of the Federal Government (i) one of whom is a representative of the Department of Defense appointed by the Secretary of Defense; and (ii) one of whom is an officer or employee of the General Services Administration appointed by the Administrator of General Services. (B) 2 individuals from the private sector, each of whom is appointed by the Administrator, and (i) one of whom is a representative of industry; and (ii) one of whom is particularly knowledgeable about cost accounting problems and systems and, if possible, is a representative of a public accounting firm. (2)  Term of office. (A)  Length of term The term of office of each member, other than the Administrator, is 4 years. The terms are staggered, with the terms of 2 members expiring in the same year, the term of another member expiring the next year, and the term of the last member expiring the year after that. (B)  Individual required to remain with appointing agency A member appointed under paragraph (1)(A) may not continue to serve after ceasing to be an officer or employee of the agency from which that member was appointed. (3)  Vacancy A vacancy on the Board shall be filled in the same manner in which the original appointment was made. A member appointed to fill a vacancy serves for the remainder of the term for which that members predecessor was appointed. (c)  Duties The Board shall (1) ensure that the cost accounting standards used by Federal contractors rely, to the maximum extent practicable, on commercial standards and accounting practices and systems; (2) within one year after the date of enactment of this subsection, and on an ongoing basis thereafter, review any cost accounting standards established under section 1502 of this title (3) annually review disputes involving such standards brought to the boards established in section 7105 of this title (d)  Meetings The Board shall meet not less than once each quarter and shall publish in the Federal Register notice of each meeting and its agenda before such meeting is held. (e)  Report The Board shall annually submit a report to the congressional defense committees, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate describing the actions taken during the prior year (1) to conform the cost accounting standards established under section 1502 of this title (2) to minimize the burden on contractors while protecting the interests of the Federal Government. (f)  Senior Staff The Administrator, after consultation with the Board (1) without regard to the provisions of title 5 governing appointments in the competitive service (A) shall appoint an executive secretary; and (B) may appoint, or detail pursuant to section 3341 of title 5 (2) may pay those employees without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5 relating to classification and General Schedule pay rates, except that those employees may not receive pay in excess of the maximum rate of basic pay payable for level IV of the Executive Schedule. (g)  Other Staff The Administrator may appoint, fix the compensation of, and remove additional employees of the Board under the applicable provisions of title 5. (h)  Detailed and Temporary Personnel For service on advisory committees and task forces to assist the Board in carrying out its functions and responsibilities (1) the Board, with the consent of the head of a Federal agency, may use, without reimbursement, personnel of that agency; and (2) the Administrator, after consultation with the Board, may procure temporary and intermittent services of personnel under section 3109(b) of title 5 (i)  Compensation. (1)  Officers and employees of the government Members of the Board who are officers or employees of the Federal Government, and officers and employees of other agencies of the Federal Government who are used under subsection (h)(1), shall not receive additional compensation for services but shall continue to be compensated by the employing department or agency of the officer or employee. (2)  Appointees from private sector Each member of the Board appointed from the private sector shall receive compensation at a rate not to exceed the daily equivalent of the rate for level IV of the Executive Schedule for each day (including travel time) in which the member is engaged in the actual performance of duties vested in the Board. (3)  Temporary and intermittent personnel An individual hired under subsection (h)(2) may receive compensation at a rate fixed by the Administrator, but not to exceed the daily equivalent of the rate for level V of the Executive Schedule for each day (including travel time) in which the individual is properly engaged in the actual performance of duties under this chapter. (4)  Travel expenses While serving away from home or regular place of business, Board members and other individuals serving on an intermittent basis under this chapter shall be allowed travel expenses in accordance with section 5703 of title 5 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3695 Pub. L. 114328, div. A, title VIII,  820(a)(1) Dec. 23, 2016 130 Stat. 2273        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1501(a) 41:422(a)(1) (1st sentence). Pub. L. 93400,  26(a) Pub. L. 100679,  5(a) Nov. 17, 1988 102 Stat. 4058 1501(b) 41:422(a)(1) (last sentence), (2). 1501(c) 41:422(b). 1501(d) 41:422(c). 1501(e) 41:422(d). 1501(f) 41:422(e). In subsection (b)(2), the text of 41:422(a)(2)(C) is omitted as obsolete. In subsection (b)(2)(A), the last sentence is substituted for of the initial members, two shall be appointed for terms of two years, one shall be appointed for a term of three years, and one shall be appointed for a term of four years because the initial members have already been appointed. In subsection (c)(2), the reference to section 5376 of title 5 Public Law 101509 104 Stat. 1442 In subsection (f)(1), the words Except as otherwise provided in subsection (a) of this section are omitted because 41:422(a) does not provide any relevant exception. In subsection (f)(2), the words private sector are substituted for private life for consistency with subsection (b)(1)(B) of the revised section. In subsection (f)(3), the words Executive Schedule are substituted for Federal Executive Salary Schedule under section 5316 of title 5 Senate Revision Amendment In subsec. (c)(2), for level IV of the Executive Schedule substituted for under section 5376 of title 5 Editorial Notes  References in Text The date of enactment of this subsection, referred to in subsec. (c)(2), is the date of enactment of Pub. L. 114328 Dec. 23, 2016 Level IV of the Executive Schedule, referred to in subsec. (f)(2), is set out under section 5315 of Title 5 Amendments 2016Subsec. (b)(1)(B)(ii). Pub. L. 114328,  820(a)(1)(A) Subsecs. (c) to (e). Pub. L. 114328,  820(a)(1)(C) Subsec. (f). Pub. L. 114328,  820(a)(1)(B) (1) appoint an executive secretary and 2 additional staff members without regard to the provisions of title 5 governing appointments in the competitive service; and (2) pay those employees without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5 relating to classification and General Schedule pay rates, except that those employees may not receive pay in excess of the maximum rate of basic pay payable for level IV of the Executive Schedule. Subsecs. (g) to (i). Pub. L. 114328,  820(a)(1)(B) Subsec. (i)(1). Pub. L. 114328,  820(a)(3)(A) Subsec. (i)(3). Pub. L. 114328,  820(a)(3)(B) Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023 Effective Date of 2016 Amendment Pub. L. 114328, div. A, title VIII,  820(d) Dec. 23, 2016 130 Stat. 2276 The amendments made by this section [enacting section 190 of Title 10 section 1502 of this title October 1, 2018  1502. Cost accounting standards (a)  Authority. (1)  Cost accounting standards board The Cost Accounting Standards Board has exclusive authority to prescribe, amend, and rescind cost accounting standards, and interpretations of the standards, designed to achieve uniformity and consistency in the cost accounting standards governing measurement, assignment, and allocation of costs to contracts with the Federal Government. (2)  Administrator for federal procurement policy The Administrator, after consultation with the Board, shall prescribe rules and procedures governing actions of the Board under this chapter. The rules and procedures shall require that any action to prescribe, amend, or rescind a standard or interpretation be approved by majority vote of the Board. (b)  Mandatory Use of Standards. (1)  Subcontract. (A)  Definition In this paragraph, the term subcontract includes a transfer of commercial products or commercial services between divisions, subsidiaries, or affiliates of a contractor or subcontractor. (B)  When standards are to be used Cost accounting standards prescribed under this chapter are mandatory for use by all executive agencies and by contractors and subcontractors in estimating, accumulating, and reporting costs in connection with the pricing and administration of, and settlement of disputes concerning, all negotiated prime contract and subcontract procurements with the Federal Government in excess of the amount set forth in section 3702(a)(1)(A) of title 10 (C)  Nonapplication of standards Subparagraph (B) does not apply to (i) a contract or subcontract for the acquisition of a commercial product or commercial service; (ii) a contract or subcontract where the price negotiated is based on a price set by law or regulation; (iii) a firm, fixed-price contract or subcontract awarded on the basis of adequate price competition without submission of certified cost or pricing data; or (iv) a contract or subcontract with a value of less than $7,500,000 if, when the contract or subcontract is entered into, the segment of the contractor or subcontractor that will perform the work has not been awarded at least one contract or subcontract with a value of more than $7,500,000 that is covered by the standards. (2)  Exemptions and waivers by board The Board may (A) exempt classes of contractors and subcontractors from the requirements of this chapter; and (B) establish procedures for the waiver of the requirements of this chapter for individual contracts and subcontracts. (3)  Waiver by head of executive agency. (A)  In general The head of an executive agency may waive the applicability of the cost accounting standards for a contract or subcontract with a value of less than $100,000,000 if that official determines in writing that the segment of the contractor or subcontractor that will perform the work (i) is primarily engaged in the sale of commercial products or commercial services; and (ii) would not otherwise be subject to the cost accounting standards under this section. (B)  In exceptional circumstances The head of an executive agency may waive the applicability of the cost accounting standards for a contract or subcontract under exceptional circumstances when necessary to meet the needs of the agency. A determination to waive the applicability of the standards under this subparagraph shall be set forth in writing and shall include a statement of the circumstances justifying the waiver. (C)  Restriction on delegation of authority The head of an executive agency may not delegate the authority under subparagraph (A) or (B) to an official in the executive agency below the senior policymaking level in the executive agency. (D)  Contents of federal acquisition regulation The Federal Acquisition Regulation shall include (i) criteria for selecting an official to be delegated authority to grant waivers under subparagraph (A) or (B); and (ii) the specific circumstances under which the waiver may be granted. (E)  Report The head of each executive agency shall report the waivers granted under subparagraphs (A) and (B) for that agency to the Board on an annual basis. (c)  Required Board Action for Prescribing Standards and Interpretations Before prescribing cost accounting standards and interpretations, the Board shall (1) take into account, after consultation and discussions with the Comptroller General, professional accounting organizations, contractors, and other interested parties (A) the probable costs of implementation, including any inflationary effects, compared to the probable benefits; (B) the advantages, disadvantages, and improvements anticipated in the pricing and administration of, and settlement of disputes concerning, contracts; and (C) the scope of, and alternatives available to, the action proposed to be taken; (2) prepare and publish a report in the Federal Register on the issues reviewed under paragraph (1); (3) (A) publish an advanced notice of proposed rulemaking in the Federal Register to solicit comments on the report prepared under paragraph (2); (B) provide all parties affected at least 60 days after publication to submit their views and comments; and (C) during the 60-day period, consult with the Comptroller General and consider any recommendation the Comptroller General may make; and (4) publish a notice of proposed rulemaking in the Federal Register and provide all parties affected at least 60 days after publication to submit their views and comments. (d)  Effective Dates Rules, regulations, cost accounting standards, and modifications thereof prescribed or amended under this chapter shall have the full force and effect of law, and shall become effective within 120 days after publication in the Federal Register in final form, unless the Board determines that a longer period is necessary. The Board shall determine implementation dates for contractors and subcontractors. The dates may not be later than the beginning of the second fiscal year of the contractor or subcontractor after the standard becomes effective. (e)  Accompanying Material Rules, regulations, cost accounting standards, and modifications thereof prescribed or amended under this chapter shall be accompanied by prefatory comments and by illustrations, if necessary. (f)  Implementing Regulations The Board shall prescribe regulations for the implementation of cost accounting standards prescribed or interpreted under this section. The regulations shall be incorporated into the Federal Acquisition Regulation and shall require contractors and subcontractors as a condition of contracting with the Federal Government to (1) disclose in writing their cost accounting practices, including methods of distinguishing direct costs from indirect costs and the basis used for allocating indirect costs; and (2) agree to a contract price adjustment, with interest, for any increased costs paid to the contractor or subcontractor by the Federal Government because of a change in the contractors or subcontractors cost accounting practices or a failure by the contractor or subcontractor to comply with applicable cost accounting standards. (g)  Nonapplicability of Certain Sections of Title Functions exercised under this chapter are not subject to sections 551, 553 to 559, and 701 to 706 of title 5. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3696 Pub. L. 114328, div. A, title VIII,  820(a)(2) Dec. 23, 2016 130 Stat. 2274 Pub. L. 115232, div. A, title VIII,  836(b)(1) Aug. 13, 2018 132 Stat. 1860 Pub. L. 11781, div. A, title XVII,  1702(h)(3) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1502(a) 41:422(f)(1), (3). Pub. L. 93400,  26(f) Pub. L. 100679,  5(a) Nov. 17, 1988 102 Stat. 4060 Pub. L. 103355, title II,  2453 Oct. 13, 1994 108 Stat. 3326 Pub. L. 104106, title XLII,  4205 Feb. 10, 1996 110 Stat. 656 Oct. 5, 1999 113 Stat. 701 Jan. 6, 2006 119 Stat. 3386 1502(b)(1) 41:422(f)(2), (4). 1502(b)(2) 41:422(f)(4). 1502(b)(3) 41:422(f)(5). 1502(c) 41:422(g)(1). Pub. L. 93400,  26(g) Pub. L. 100679,  5(a) Nov. 17, 1988 102 Stat. 4061 1502(d) 41:422(g)(2) (1st, 2d sentences). 1502(e) 41:422(g)(2) (last sentence). 1502(f) 41:422(h)(1). 1502(g) 41:422(g)(3). In subsection (a)(1), the word make is omitted as being included in prescribe. In subsection (b)(2)(A), the word categories is omitted as being included in classes. In subsection (b)(3)(A)(ii), the words as in effect on or after the effective date of this paragraph are omitted as obsolete. Editorial Notes Amendments 2021Subsec. (b)(1)(B). Pub. L. 11781 2018Subsec. (b)(1)(A). Pub. L. 115232,  836(b)(1)(A) Subsec. (b)(1)(C)(i). Pub. L. 115232,  836(b)(1)(B) Subsec. (b)(3)(A)(i). Pub. L. 115232,  836(b)(1)(C) 2016Subsec. (b)(3)(A). Pub. L. 114328 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6 Effective Date of 2016 Amendment Amendment by Pub. L. 114328 Oct. 1, 2018 section 820(d) of Pub. L. 114328 section 1501 of this title Effective Date of Amendment by Pub. L. 10665 Pub. L. 10665, div. A, title VIII,  802(c) Oct. 5, 1999 113 Stat. 701  (c)  Regulation on Types of CAS Coverage (1) The Administrator for Federal Procurement Policy shall revise the rules and procedures prescribed pursuant to section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f) 41 U.S.C. 1502(a) (2) Paragraph (1) requires only a change of the statement of a threshold condition in the regulation referred to by section number in that paragraph, and shall not be construed as (A) a ratification or expression of approval of (i) any aspect of the regulation; or (ii) the manner in which section 26 of the Office of Federal Procurement Policy Act [now 41 U.S.C. 1501 (B) a requirement to apply the regulation. (d)  Implementation The Administrator for Federal Procurement Policy shall ensure that this section [see Tables for classification] and the amendments made by this section are implemented in a manner that ensures that the Federal Government can recover costs, as appropriate, in a case in which noncompliance with cost accounting standards, or a change in the cost accounting system of a contractor segment or subcontractor segment that is not determined to be desirable by the Federal Government, results in a shift of costs from contracts that are not covered by the cost accounting standards to contracts that are covered by the cost accounting standards. (e)  Implementation of Requirements for Revision of Regulations (1) Final regulations required by subsection (c) shall be issued not later than 180 days after the date of the enactment of this Act [ Oct. 5, 1999 (2) Subsection (c) shall cease to be effective one year after the date on which final regulations issued in accordance with that subsection take effect. (g)  Inapplicability of Standards to Certain Contracts The cost accounting standards issued pursuant to section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f) 41 U.S.C. 1502(a) (h)  Construction Regarding Certain Not-For-Profit Entities The amendments made by subsections (a) and (b) [see Tables for classification] shall not be construed as modifying or superseding, nor as intended to impair or restrict, the applicability of the cost accounting standards described in section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f) 41 U.S.C. 1502(a) (1) any educational institution or federally funded research and development center that is associated with an educational institution in accordance with Office of Management and Budget Circular A21, as in effect on January 1, 1999 (2) any contract with a nonprofit entity that provides research and development and related products or services to the Department of Defense. (i)  Effective Date The amendments made by subsections (a) and (b) [see Tables for classification] shall take effect 180 days after the date of enactment of this Act [ Oct. 5, 1999 (1) contracts that are entered into on or after such effective date; and (2) determinations made on or after such effective date regarding whether a segment of a contractor or subcontractor is subject to the cost accounting standards under section 26(f) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 422(f) 41 U.S.C. 1502(a)  1503. Contract price adjustment (a)  Disagreement Constitutes a Dispute If the Federal Government and a contractor or subcontractor fail to agree on a contract price adjustment, including whether the contractor or subcontractor has complied with the applicable cost accounting standards, the disagreement will constitute a dispute under chapter 71 of this title. (b)  Amount of Adjustment A contract price adjustment undertaken under section 1502(f)(2) of this title (c)  Interest The interest rate applicable to a contract price adjustment is the annual rate of interest established under section 6621 of the Internal Revenue Code of 1986 ( 26 U.S.C. 6621 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3699        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1503(a) 41:422(h)(2). Pub. L. 93400,  26(h)(2) Pub. L. 100679,  5(a) Nov. 17, 1988 102 Stat. 4062 1503(b) 41:422(h)(3). 1503(c) 41:422(h)(4).  1504. Effect on other standards and regulations (a)  Previously Existing Standards All cost accounting standards, waivers, exemptions, interpretations, modifications, rules, and regulations prescribed by the Cost Accounting Standards Board under section 719 of the Defense Production Act of 1950 (50 U.S.C. App. 2168) 1 1 (1) remain in effect until amended, superseded, or rescinded by the Board under this chapter; and (2) are subject to the provisions of this division in the same manner as if prescribed by the Board under this division. (b)  Inconsistent Agency Regulations To ensure that a regulation or proposed regulation of an executive agency is not inconsistent with a cost accounting standard prescribed or amended under this chapter, the Administrator, under the authority in sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305 of this title, shall rescind or deny the promulgation of the inconsistent regulation or proposed regulation and take other appropriate action authorized under sections 1121, 1122(a) to (c)(1), 1125, 1126, 1130, 1131, and 2305. (c)  Costs Not Subject to Different Standards Costs that are the subject of cost accounting standards prescribed under this chapter are not subject to regulations established by another executive agency that differ from those standards with respect to the measurement, assignment, and allocation of those costs. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3699        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1504(a) 41:422(j)(1), (2). Pub. L. 93400,  26(j) Pub. L. 100679,  5(a) Nov. 17, 1988 102 Stat. 4062 1504(b) 41:422(j)(3). 1504(c) 41:422(j)(4). Editorial Notes  References in Text Section 719 of the Defense Production Act of 1950, referred to in subsec. (a), is section 719 of act Sept. 8, 1950, ch. 932, title VII Pub. L. 91379, title I,  103 Aug. 15, 1970 84 Stat. 796 Pub. L. 100679,  5(b) Nov. 17, 1988 102 Stat. 4063  1505. Examinations  To determine whether a contractor or subcontractor has complied with cost accounting standards prescribed under this chapter and has followed consistently the contractors or subcontractors disclosed cost accounting practices, an authorized representative of the head of the agency concerned, of the offices of inspector general established under chapter 4 of title 5, or of the Comptroller General shall have the right to examine and copy documents, papers, or records of the contractor or subcontractor relating to compliance with the standards. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3700 Pub. L. 117286,  4(b)(71) Dec. 27, 2022 136 Stat. 4350        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1505 41:422(k). Pub. L. 93400,  26(k) Pub. L. 100679,  5(a) Nov. 17, 1988 102 Stat. 4062 Editorial Notes Amendments 2022 Pub. L. 117286  1506. Authorization of appropriations  Necessary amounts may be appropriated to carry out this chapter. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3700        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1506 41:422( l Pub. L. 93400,  26 l Pub. L. 100679,  5(a) Nov. 17, 1988 102 Stat. 4063 CHAPTER 17 AGENCY RESPONSIBILITIES AND PROCEDURES    Sec.  1701. Cooperation with the Administrator.  1702. Chief Acquisition Officers and senior procurement executives.  1703. Acquisition workforce.  1704. Planning and policy-making for acquisition workforce.  1705. Advocates for competition.  1706. Personnel evaluation.  1707. Publication of proposed regulations.  1708. Procurement notice.  1709. Contracting functions performed by Federal personnel.  1710. Public-private competition required before conversion to contractor performance.  1711. Value engineering.  1712. Record requirements.  1713. Procurement data.  1701. Cooperation with the Administrator On the request of the Administrator, each executive agency shall (1) make its services, personnel, and facilities available to the Office of Federal Procurement Policy to the greatest practicable extent for the performance of functions under this division; and (2) except when prohibited by law, furnish to the Administrator, and give the Administrator access to, all information and records in its possession that the Administrator may determine to be necessary for the performance of the functions of the Office. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3700        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1701 41:406. Pub. L. 93400,  7 Aug. 30, 1974 88 Stat. 798 Executive Documents  Ex. Ord. No. 12073. Federal Procurement in Labor Surplus Areas Ex. Ord. No. 12073, Aug. 16, 1978 By the authority vested in me as President by the Constitution of the United States of America, and in order to strengthen the economic base of our Nation, it is hereby ordered as follows: 11. Procurements in Labor Surplus Areas 1101. Executive agencies shall emphasize procurement set-asides in labor surplus areas in order to strengthen our Nations economy. 1102. Labor surplus area procurements shall be consistent with this Order and, to the extent funds are available, the priorities of Section 15 of the Small Business Act, as amended by Public Law 9589 15 U.S.C. 644 12. Administrator of General Services 1201. The Administrator shall coordinate with and advise State and local officials with regard to Federal efforts to encourage procurements in labor surplus areas with the aim of fostering economic development in labor surplus areas. 1202. The Administrator shall establish specific labor surplus area procurement targets for Executive agencies in consultation with the heads of those agencies. 1203. In cooperation with the heads of Executive agencies, the Administrator shall encourage the use of set-asides or other appropriate methods for meeting procurement targets in labor surplus areas. 1204. The Administrator shall report every six months to the President on the progress of the agencies in achieving the procurement targets. 13. Agency Responsibilities 1301. The Secretary of Labor shall classify and designate labor markets which are labor surplus areas. The Secretary shall provide labor market data to the heads of agencies and State and local officials in order to promote the development of business opportunities in labor surplus areas. 1302. The heads of Executive agencies shall cooperate with the Administrator in carrying out his responsibilities for labor surplus area programs and shall provide the information necessary for setting procurement targets and recording achievement. They shall keep the Administrator informed of plans and programs which affect labor surplus procurements, with particular attention to opportunities for minority firms. 1303. In accord with Section 6 of the Office of Federal Procurement Policy Act ( 41 U.S.C. 405  Jimmy Carter.  Ex. Ord. No. 12931. Federal Procurement Reform Ex. Ord. No. 12931, Oct. 13, 1994 By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to ensure effective and efficient spending of public funds through fundamental reforms in Government procurement, it is hereby ordered as follows: Section (a) Review agency procurement rules, reporting requirements, contractual requirements, certification procedures, and other administrative procedures over and above those required by statute, and, where practicable, replace them with guiding principles that encourage and reward innovation; (b) Review existing and planned agency programs to assure that such programs meet agency mission needs; (c) Ensure that procurement organizations focus on measurable results and on increased attention to understanding and meeting customer needs; (d) Increase the use of commercially available items where practicable, place more emphasis on past contractor performance, and promote best value rather than simply low cost in selecting sources for supplies and services; (e) Ensure that simplified acquisition procedures are used, to the maximum extent practicable, for procurements under the simplified acquisition threshold in order to reduce administrative burdens and more effectively support the accomplishment of agency missions; (f) Expand the use of the Government purchase card by the agency and take maximum advantage of the micro-purchase authority provided in the Federal Acquisition Streamlining Act of 1994 [ Pub. L. 103355 section 101 of this title (g) Establish clear lines of contracting authority and accountability; (h) Establish career education programs for procurement professionals, including requirements for successful completion of educational requirements or mandatory training for entry level positions and for promotion to higher level positions, in order to ensure a highly qualified procurement work force; (i) Designate a Procurement Executive with agency-wide responsibility to oversee development of procurement goals, guidelines, and innovation, measure and evaluate procurement office performance against stated goals, enhance career development of the procurement work force, and advise the agency heads whether goals are being achieved; and (j) Review existing and planned information technology acquisitions and contracts to ensure that the agency receives the best value with regard to price and technology, and consider alternatives in cases where best value is not being obtained. Sec Sec (a) Coordinating Government-wide efforts; (b) Assisting executive agencies in streamlining guidance for procurement processes; (c) Identifying desirable Government-wide procurement system criteria; and (d) Identifying major inconsistencies in law and policies relating to procurement that impose unnecessary burdens on the private sector and Federal procurement officials, and, following coordination with executive agencies, submitting necessary legislative initiatives to the Office of Management and Budget for the resolution of such inconsistencies. Sec  William J. Clinton.  1702. Chief Acquisition Officers and senior procurement executives (a)  Appointment or Designation of Chief Acquisition Officer The head of each executive agency described in section 901(b)(1) (other than the Department of Defense) or 901(b)(2)(C) of title 31 with a Chief Financial Officer appointed or designated under section 901(a) of title 31 (b)  Authority and Functions of Chief Acquisition Officer. (1)  Primary duty The primary duty of a Chief Acquisition Officer is acquisition management. (2)  Advice and assistance A Chief Acquisition Officer shall advise and assist the head of the executive agency and other agency officials to ensure that the mission of the executive agency is achieved through the management of the agencys acquisition activities. (3)  Other functions The functions of each Chief Acquisition Officer include (A) monitoring the performance of acquisition activities and acquisition programs of the executive agency, evaluating the performance of those programs on the basis of applicable performance measurements, and advising the head of the executive agency regarding the appropriate business strategy to achieve the mission of the executive agency; (B) increasing the use of full and open competition in the acquisition of property and services by the executive agency by establishing policies, procedures, and practices that ensure that the executive agency receives a sufficient number of sealed bids or competitive proposals from responsible sources to fulfill the Federal Governments requirements (including performance and delivery schedules) at the lowest cost or best value considering the nature of the property or service procured; (C) increasing appropriate use of performance-based contracting and performance specifications; (D) making acquisition decisions consistent with all applicable laws and establishing clear lines of authority, accountability, and responsibility for acquisition decisionmaking within the executive agency; (E) managing the direction of acquisition policy for the executive agency, including implementation of the unique acquisition policies, regulations, and standards of the executive agency; (F) advising the executive agency on the applicability of relevant policy on the contracts of the agency for overseas contingency operations and ensuring the compliance of the contracts and contracting activities of the agency with such policy; (G) developing and maintaining an acquisition career management program in the executive agency to ensure that there is an adequate professional workforce; and (H) as part of the strategic planning and performance evaluation process required under section 306 of title 5 section 5(a) of Public Law 10362 107 Stat. 289 (i) assessing the requirements established for agency personnel regarding knowledge and skill in acquisition resources management and the adequacy of those requirements for facilitating the achievement of the performance goals established for acquisition management; (ii) developing strategies and specific plans for hiring, training, and professional development to rectify a deficiency in meeting those requirements; and (iii) reporting to the head of the executive agency on the progress made in improving acquisition management capability. (c)  Senior Procurement Executive. (1)  Designation The head of each executive agency shall designate a senior procurement executive. (2)  Responsibility The senior procurement executive is responsible for management direction of the procurement system of the executive agency, including implementation of the unique procurement policies, regulations, and standards of the executive agency. (3)  When chief acquisition officer appointed or designated For an executive agency for which a Chief Acquisition Officer has been appointed or designated under subsection (a), the head of the executive agency shall (A) designate the Chief Acquisition Officer as the senior procurement executive for the executive agency; or (B) ensure that the senior procurement executive designated under paragraph (1) reports directly to the Chief Acquisition Officer without intervening authority. (d)  Overseas Contingency Operations Defined In this section, the term overseas contingency operations means military operations outside the United States and its territories and possessions that are a contingency operation (as that term is defined in section 101(a)(13) of title 10 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3701 Pub. L. 112239, div. A, title VIII,  849 Jan. 2, 2013 126 Stat. 1853        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1702(a), (b)(1), (2) 41:414(a). Pub. L. 93400,  16 Pub. L. 98191,  7 Dec. 1, 1983 97 Stat. 1330 Pub. L. 98369, title VII,  2732(b)(2) July 18, 1984 98 Stat. 1199 Pub. L. 108136, div. A, title XIV,  1421(a)(1) Nov. 24, 2003 117 Stat. 1666 1702(b)(3) 41:414(b). 1702(c) 41:414(c). Editorial Notes Amendments 2013Subsec. (b)(3)(F) to (H). Pub. L. 112239,  849(a) Subsec. (d). Pub. L. 112239,  849(b)  1703. Acquisition workforce (a)  Description For purposes of this section, the acquisition workforce of an agency consists of all employees serving in acquisition positions listed in subsection (g)(1)(A). (b)  Applicability. (1)  Nonapplicability to certain executive agencies Except as provided in subsection (i), this section does not apply to an executive agency that is subject to chapter 87 of title 10. (2)  Applicability of programs The programs established by this section apply to the acquisition workforce of each executive agency. (c)  Management Policies. (1)  Duties of head of executive agency. (A)  Establish policies and procedures After consultation with the Administrator, the head of each executive agency shall establish policies and procedures for the effective management (including accession, education, training, career development, and performance incentives) of the acquisition workforce of the agency. The development of acquisition workforce policies under this section shall be carried out consistent with the merit system principles set forth in section 2301(b) of title 5 (B)  Ensure uniform implementation The head of each executive agency shall ensure that, to the maximum extent practicable, acquisition workforce policies and procedures established are uniform in their implementation throughout the agency. (2)  Duties of administrator. (A)  In general The Administrator shall issue policies to promote uniform implementation of this section by executive agencies, with due regard for differences in program requirements among agencies that may be appropriate and warranted in view of the agency mission. The Administrator shall coordinate with the Deputy Director for Management of the Office of Management and Budget to ensure that the policies are consistent with the policies and procedures established, and enhanced system of incentives provided, pursuant to section 5051(c) of the Federal Acquisition Streamlining Act of 1994 ( Public Law 103355 108 Stat. 3351 (B)  Government-wide training standards and certification The Administrator, acting through the Federal Acquisition Institute, shall provide and update government-wide training standards and certification requirements, including (i) developing and modifying acquisition certification programs; (ii) ensuring quality assurance for agency implementation of government-wide training and certification standards; (iii) analyzing the acquisition training curriculum to ascertain if all certification competencies are covered or if adjustments are necessary; (iv) developing career path information for certified professionals to encourage retention in government positions; (v) coordinating with the Office of Personnel Management for human capital efforts; and (vi) managing rotation assignments to support opportunities to apply skills included in certification. (d)  Authority and Responsibility of Senior Procurement Executive Subject to the authority, direction, and control of the head of an executive agency, the senior procurement executive of the agency shall carry out all powers, functions, and duties of the head of the agency with respect to implementing this section. The senior procurement executive shall ensure that the policies of the head of the executive agency established in accordance with this section are implemented throughout the agency. (e)  Collecting and Maintaining Information The Administrator shall ensure that the heads of executive agencies collect and maintain standardized information on the acquisition workforce related to implementing this section. To the maximum extent practicable, information requirements shall conform to standards the Director of the Office of Personnel Management establishes for the Central Personnel Data File. (f)  Career Development. (1)  Career paths. (A)  Identification The head of each executive agency shall ensure that appropriate career paths for personnel who desire to pursue careers in acquisition are identified in terms of the education, training, experience, and assignments necessary for career progression to the most senior acquisition positions. The head of each executive agency shall make available information on those career paths. (B)  Critical duties and tasks For each career path, the head of each executive agency shall identify the critical acquisition-related duties and tasks in which, at minimum, employees of the agency in the career path shall be competent to perform at full performance grade levels. For this purpose, the head of the executive agency shall provide appropriate coverage of the critical duties and tasks identified by the Director of the Federal Acquisition Institute. (C)  Mandatory training and education For each career path, the head of each executive agency shall establish requirements for the completion of course work and related on-the-job training in the critical acquisition-related duties and tasks of the career path. The head of each executive agency also shall encourage employees to maintain the currency of their acquisition knowledge and generally enhance their knowledge of related acquisition management disciplines through academic programs and other self-developmental activities. (2)  Performance incentives The head of each executive agency shall provide for an enhanced system of incentives to encourage excellence in the acquisition workforce that rewards performance of employees who contribute to achieving the agencys performance goals. The system of incentives shall include provisions that (A) relate pay to performance (including the extent to which the performance of personnel in the workforce contributes to achieving the cost goals, schedule goals, and performance goals established for acquisition programs pursuant to section 3103(b) of this title (B) provide for consideration, in personnel evaluations and promotion decisions, of the extent to which the performance of personnel in the workforce contributes to achieving the cost goals, schedule goals, and performance goals. (g)  Qualification Requirements. (1)  In general Subject to paragraph (2), the Administrator shall (A) establish qualification requirements, including education requirements, for (i) entry-level positions in the General Schedule Contracting series (GS1102); (ii) senior positions in the General Schedule Contracting series (GS1102); (iii) all positions in the General Schedule Purchasing series (GS1105); and (iv) positions in other General Schedule series in which significant acquisition-related functions are performed; and (B) prescribe the manner and extent to which the qualification requirements shall apply to an individual serving in a position described in subparagraph (A) at the time the requirements are established. (2)  Relationship to requirements applicable to defense acquisition workforce The Administrator shall establish qualification requirements and make prescriptions under paragraph (1) that are comparable to those established for the same or equivalent positions pursuant to chapter 87 of title 10 with appropriate modifications. (3)  Approval of requirements The Administrator shall submit any requirement established or prescription made under paragraph (1) to the Director of the Office of Personnel Management for approval. The Director is deemed to have approved the requirement or prescription if the Director does not disapprove the requirement or prescription within 30 days after receiving it. (h)  Education and Training. (1)  Funding levels The head of an executive agency shall set forth separately the funding levels requested for educating and training the acquisition workforce in the budget justification documents submitted in support of the Presidents budget submitted to Congress under section 1105 of title 31 (2)  Tuition assistance The head of an executive agency may provide tuition reimbursement in education (including a full-time course of study leading to a degree) in accordance with section 4107 of title 5 (3)  Restricted obligation Amounts appropriated for education and training under this section may not be obligated for another purpose. (i)  Training Fund. (1)  Purposes The purposes of this subsection are to ensure that the Federal acquisition workforce (A) adapts to fundamental changes in the nature of Federal Government acquisition of property and services associated with the changing roles of the Federal Government; and (B) acquires new skills and a new perspective to enable it to contribute effectively in the changing environment of the 21st century. (2)  Establishment and management of fund There is an acquisition workforce training fund. The Administrator of General Services shall manage the fund through the Federal Acquisition Institute to support the activities set forth in section 1201(a) of this title (3)  Credits to fund Five percent of the fees collected by executive agencies (other than the Department of Defense) under the following contracts shall be credited to the fund: (A) Government-wide task and delivery-order contracts entered into under sections 4103 and 4105 of this title. (B) Government-wide contracts for the acquisition of information technology as defined in section 11101 of title 40 section 11314 of title 40 (C) multiple-award schedule contracts entered into by the Administrator of General Services. (4)  Remittance by head of executive agency The head of an executive agency that administers a contract described in paragraph (3) shall remit to the General Services Administration the amount required to be credited to the fund with respect to the contract at the end of each quarter of the fiscal year. (5)  Transfer and use of fees collected from department of defense The Administrator of General Services shall transfer to the Secretary of Defense fees collected from the Department of Defense pursuant to paragraph (3). The Defense Acquisition University shall use the fees for acquisition workforce training. (6)  Amounts not to be used for other purposes The Administrator of General Services, through the Office of Federal Procurememt 1 1 section 1201(a) of this title (7)  Amounts are in addition to other amounts for education and training Amounts credited to the fund are in addition to amounts requested and appropriated for education and training referred to in subsection (h)(1). (8)  Availability of amounts Amounts credited to the fund remain available to be expended only in the fiscal year for which they are credited and the 2 succeeding fiscal years. (j)  Recruitment Program. (1)  Shortage category positions For purposes of sections 3304, 5333, and 5753 of title 5, the head of a department or agency of the Federal Government (other than the Secretary of Defense) may determine, under regulations prescribed by the Office of Personnel Management, that certain Federal acquisition positions (as described in subsection (g)(1)(A)) are shortage category positions in order to use the authorities in those sections to recruit and appoint highly qualified individuals directly to those positions in the department or agency. (2)  Termination of authority The head of a department or agency may not appoint an individual to a position of employment under this subsection after September 30, 2017 (k)  Reemployment Without Loss of Annuity. (1)  Establishment of policies and procedures The head of each executive agency, after consultation with the Administrator and the Director of the Office of Personnel Management, shall establish policies and procedures under which the agency head may reemploy in an acquisition-related position (as described in subsection (g)(1)(A)) an individual receiving an annuity from the Civil Service Retirement and Disability Fund, on the basis of the individuals service, without discontinuing the annuity. The head of each executive agency shall keep the Administrator informed of the agencys use of this authority. (2)  Criteria for continuation of annuity Policies and procedures established under paragraph (1) shall authorize the head of the executive agency, on a case-by-case basis, to continue an annuity if any of the following makes the reemployment of an individual essential: (A) The unusually high or unique qualifications of an individual receiving an annuity from the Civil Service Retirement and Disability Fund on the basis of the individuals service. (B) The exceptional difficulty in recruiting or retaining a qualified employee. (C) A temporary emergency hiring need. (3)  Service not subject to csrs or fers An individual reemployed under this subsection shall not be deemed an employee for purposes of chapter 83 or 84 of title 5. (4)  Reporting requirement The Administrator shall submit annually to the Committee on Oversight and Government Reform of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a report on the use of the authority under this subsection, including the number of employees reemployed under authority of this subsection. (5)  Sunset provision The authority under this subsection expires on December 31, 2011 (l)  Acquisition Internship and Training Programs All Federal civilian agency acquisition internship or acquisition training programs shall follow guidelines provided by the Office of Federal Procurement Policy to ensure consistent training standards necessary to develop uniform core competencies throughout the Federal Government. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3702 Pub. L. 11274, div. C, title V,  526 Dec. 23, 2011 125 Stat. 914 Pub. L. 11281, div. A, title VIII,  864(c) Dec. 31, 2011 125 Stat. 1525 Pub. L. 112239, div. A, title X,  1076(a)(15) Jan. 2, 2013 126 Stat. 1948        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1703(a) 41:433(e) (last sentence). Pub. L. 93400,  37(b) Pub. L. 104106, title XLIII,  4307(a)(1) Feb. 10, 1996 110 Stat. 666 1703(b)(1) 41:433(a). Pub. L. 93400,  37(a) Pub. L. 104106, title XLIII,  4307(a)(1) Feb. 10, 1996 110 Stat. 666 Pub. L. 109163, div. A, title VIII,  821(b)(1) Jan. 6, 2006 119 Stat. 3386 1703(b)(2) 41:433(e) (1st sentence). 1703(c) 41:433(b). 1703(d) 41:433(c). 1703(e) 41:433(d). 1703(f) 41:433(f). 1703(g) 41:433(g). 1703(h)(1) 41:433(h)(1)(A). 1703(h)(2) 41:433(h)(2). 1703(h)(3) 41:433(h)(1)(B). 1703(i)(1) 41:433 note. Pub. L. 108136, div. A, title XIV,  1412(a) Nov. 24, 2003 117 Stat. 1664 1703(i)(2)(8) 41:433(h)(3). Pub. L. 93400,  37(h)(3) Pub. L. 108136, div. A, title XIV,  1412(b) Nov. 24, 2003 117 Stat. 1664 Pub. L. 109163, div. A, title VIII,  821(a) Jan. 6, 2006 119 Stat. 3386 Pub. L. 110181, div. A, title VIII,  854 Jan. 28, 2008 122 Stat. 251 1703(j) 41:433 note. Pub. L. 108136, div. A, title XIV,  1413 Nov. 24, 2003 117 Stat. 1665 Pub. L. 110181, div. A, title VIII,  853 Jan. 28, 2008 122 Stat. 250 1703(k) 41:433(i). Pub. L. 93400,  37(i) Pub. L. 109313,  4 Oct. 6, 2006 120 Stat. 1737 In subsection (e), the word information the second time it appears is substituted for data for consistency in the subsection. In subsection (i)(6), the words Office of Federal Procurement Policy are substituted for Office of Federal Acquisition Policy to provide the correct name of the office. In subsection (j), the text of 1413(c) of the National Defense Authorization Act for Fiscal Year 2004 ( Pub. L. 108136 117 Stat. 1665 In subsection (k)(4), the words Committee on Oversight and Government Reform are substituted for Committee on Government Reform on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007 Editorial Notes  References in Text Section 5051(c) of the Federal Acquisition Streamlining Act of 1994, referred to in subsec. (c)(2)(A), is section 5051(c) of Pub. L. 103305 Amendments 2013Subsec. (i)(6). Pub. L. 112239,  1076(a)(15) Pub. L. 11281,  864(d)(2) Subsec. (j)(2). Pub. L. 112239,  1103 September 30, 2017 September 30, 2012 2011Subsec. (c)(2). Pub. L. 11281,  864(c)(1) Subsec. (i)(2). Pub. L. 11281,  864(d)(1) section 1201(a) of this title Subsec. (i)(6). Pub. L. 11281,  864(d)(2) Pub. L. 112239,  1076(a)(15) section 1201(a) of this title section 1122(a)(5) of this title Pub. L. 11274 section 1122(a)(5) of this title Subsec. ( l Pub. L. 11281,  864(c)(2) l Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023 Effective Date of 2013 Amendment Pub. L. 112239, div. A, title X,  1076(a) Jan. 2, 2013 126 Stat. 1947 Dec. 31, 2011 Pub. L. 11281 Artificial Intelligence Training for the Acquisition Workforce Pub. L. 117207 Oct. 17, 2022 136 Stat. 2238  SECTION 1. SHORT TITLE. This Act may be cited as the Artificial Intelligence Training for the Acquisition Workforce Act or the AI Training Act. SEC. 2. ARTIFICIAL INTELLIGENCE TRAINING PROGRAMS. (a)  Definitions In this section: (1)  AI The term AI has the meaning given the term artificial intelligence in section 238(g) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 [ Pub. L. 115232 10 U.S.C. 2358 10 U.S.C. 4061 (2)  AI training program The term AI training program means the training program established under subsection (b)(1). (3)  Covered workforce The term covered workforce means (A) employees of an executive agency who are responsible for (i) program management; (ii) the planning, research, development, engineering, testing, and evaluation of systems, including quality control and assurance; (iii) procurement and contracting; (iv) logistics; or (v) cost estimating; and (B) other personnel of an executive agency designated by the head of the executive agency to participate in the AI training program. (4)  Director The term Director means the Director of the Office of Management and Budget. (5)  Executive agency The term executive agency (A) has the meaning given the term in section 133 of title 41 (B) does not include (i) the Department of Defense or a component of the Department of Defense; or (ii) the National Nuclear Security Administration or a component of the National Nuclear Security Administration. (b)  Requirement. (1)  In general Not later than 1 year after the date of enactment of this Act [ Oct. 17, 2022 (2)  Purpose The purpose of the AI training program shall be to ensure that the covered workforce has knowledge of the capabilities and risks associated with AI. (3)  Topics The AI training program shall include information relating to (A) the science underlying AI, including how AI works; (B) introductory concepts relating to the technological features of artificial intelligence systems; (C) the ways in which AI can benefit the Federal Government; (D) the risks posed by AI, including discrimination and risks to privacy; (E) ways to mitigate the risks described in subparagraph (D), including efforts to create and identify AI that is reliable, safe, and trustworthy; and (F) future trends in AI, including trends for homeland and national security and innovation. (4)  Updates Not less frequently than once every 2 years, the Director shall update the AI training program to (A) incorporate new information relating to AI; and (B) ensure that the AI training program continues to satisfy the requirements under paragraph (3). (5)  Format The Director is encouraged to develop and implement or otherwise include under the AI training program interactive learning with (A) technologists; (B) scholars; and (C) other experts from the private, public, and nonprofit sectors. (6)  Metrics The Director shall ensure the existence of a means by which to (A) understand and measure the participation of the covered workforce; and (B) receive and consider feedback from participants in the AI training program to improve the AI training program. (7)  Sunset Effective 10 years after the date of enactment of this Act, this section shall have no force or effect. Supply Chain Security Training Pub. L. 117145 June 16, 2022 136 Stat. 1269  SECTION 1. SHORT TITLE. This Act may be cited as the Supply Chain Security Training Act of 2021. SEC. 2. TRAINING PROGRAM TO MANAGE SUPPLY CHAIN RISK. (a)  In General Not later than 180 days after the date of the enactment of this Act [ June 16, 2022 (b)  Content The training program shall be designed to prepare such personnel to perform supply chain risk management activities and identify and mitigate supply chain security risks that arise throughout the acquisition lifecycle, including for the acquisition of information and communications technology. The training program shall (1) include, considering the protection of classified and other sensitive information, information on current, specific supply chain security threats and vulnerabilities; and (2) be updated as determined to be necessary by the Administrator. (c)  Coordination and Consultation In developing and determining updates to the training program, the Administrator shall (1) coordinate with the Federal Acquisition Security Council, the Secretary of Homeland Security, and the Director of the Office of Personnel Management; and (2) consult with the Director of the Department of Defenses Defense Acquisition University, the Director of National Intelligence, and the Director of the National Institute of Standards and Technology. (d)  Guidance. (1)  In general Not later than 180 days after the training program is developed under subsection (a), the Director of the Office of Management and Budget shall promulgate guidance to Federal agencies requiring executive agency adoption and use of the training program. Such guidance shall (A) allow executive agencies to incorporate the training program into existing agency training programs; and (B) provide guidance on how to identify executive agency officials with supply chain risk management responsibilities. (2)  Availability The Director of the Office of Management and Budget shall make the guidance promulgated under paragraph (1) available to Federal agencies of the legislative and judicial branches. SEC. 3. REPORTS ON IMPLEMENTATION OF PROGRAM. Not later than 180 days after the completion of the first course, and annually thereafter for the next three years, the Administrator of General Services shall submit to the appropriate congressional committees and leadership a report on implementation of the training program required under section 2. SEC. 4. DEFINITIONS. In this Act: (1)  Appropriate congressional committees and leadership The term appropriate congressional committees means (A) the Committee on Homeland Security and Governmental Affairs and the Committee on Armed Services of the Senate; and (B) the Committee on Oversight and Reform [now Committee on Oversight and Accountability] and the Committee on Armed Services of the House of Representatives. (2)  Information and communications technology The term information and communications technology has the meaning given the term in section 4713(k) of title 41 (3)  Executive agency The term executive agency has the meaning given the term in section 133 of title 41 (4)  Federal agency The term Federal agency means any agency, committee, commission, office, or other establishment in the executive, legislative, or judicial branch of the Federal Government. (5)  Training program The term training program means the training program developed pursuant to section 2(a). Effective Communication Between Government and Industry Pub. L. 11492, div. A, title VIII,  887 Nov. 25, 2015 129 Stat. 949 Not later than 180 days after the date of the enactment of this Act [ Nov. 25, 2015 Training for Contracting and Enforcement Personnel Pub. L. 111240, title I,  1343(a) Sept. 27, 2010 124 Stat. 2545 Not later than 1 year after the date of enactment of this Act [ Sept. 27, 2010 Defense Acquisition University Funding Pub. L. 109163, div. A, title VIII,  821(c) Jan. 6, 2006 119 Stat. 3386 Amounts transferred under section 37(h)(3)(D) of the Office of Federal Procurement Policy Act [now 41 U.S.C. 1703(i)(5) Enhanced System of Performance Incentives Pub. L. 103355, title V,  5051(c) Oct. 13, 1994 108 Stat. 3351  Within one year after the date of the enactment of this Act [ Oct. 13, 1994 (1) establish policies and procedures for the heads of such departments and agencies to designate acquisition positions and manage employees (including the accession, education, training and career development of employees) in the designated acquisition positions; and (2) review the incentives and personnel actions available to the heads of departments and agencies of the Federal Government for encouraging excellence in the acquisition workforce of the Federal Government and provide an enhanced system of incentives for the encouragement of excellence in such workforce which (A) relates pay to performance (including the extent to which the performance of personnel in such workforce contributes to achieving the cost goals, schedule goals, and performance goals established for acquisition programs pursuant to section 313(b) of the Federal Property and Administrative Services Act of 1949, as added by subsection (a) [now 41 U.S.C. 3103(b) (B) provides for consideration, in personnel evaluations and promotion decisions, of the extent to which the performance of personnel in such workforce contributes to achieving such cost goals, schedule goals, and performance goals.  1704. Planning and policy-making for acquisition workforce (a)  Definitions In this section: (1)  Associate Administrator The term Associate Administrator means the Associate Administrator for Acquisition Workforce Programs as designated by the Administrator pursuant to subsection (b). (2)  Chief Acquisition Officer The term Chief Acquisition Officer means a Chief Acquisition Officer for an executive agency appointed pursuant to section 1702 of this title (b)  Associate Administrator for Acquisition Workforce Programs The Administrator shall designate a member of the Senior Executive Service as the Associate Administrator for Acquisition Workforce Programs. The Associate Administrator shall be chosen on the basis of demonstrated knowledge and expertise in acquisition, human capital, and management. The Associate Administrator shall be located in the Office of Federal Procurement Policy. The Associate Administrator shall be responsible for (1) supervising the acquisition workforce training fund established under section 1703(i) of this title (2) developing, in coordination with Chief Acquisition Officers and Chief Human Capital Officers, a strategic human capital plan for the acquisition workforce of the Federal Government; (3) reviewing and providing input to individual agency acquisition workforce succession plans; (4) recommending to the Administrator and other senior government officials appropriate programs, policies, and practices to increase the quantity and quality of the Federal acquisition workforce; (5) implementing workforce programs under subsections (f) through ( l section 1703 of this title (6) carrying out other functions that the Administrator may assign. (c)  Acquisition and Contracting Training Programs Within Executive Agencies. (1)  Chief Acquisition Officer authorities and responsibilities Subject to the authority, direction, and control of the head of an executive agency, the Chief Acquisition Officer for that agency shall carry out all powers, functions, and duties of the head of the agency with respect to implementation of this subsection. The Chief Acquisition Officer shall ensure that the policies established by the head of the agency in accordance with this subsection are implemented throughout the agency. (2)  Requirement The head of each executive agency, after consultation with the Associate Administrator, shall establish and operate acquisition and contracting training programs. The programs shall (A) have curricula covering a broad range of acquisition and contracting disciplines corresponding to the specific acquisition and contracting needs of the agency involved; (B) be developed and applied according to rigorous standards; and (C) be designed to maximize efficiency, through the use of self-paced courses, online courses, on-the-job training, and the use of remote instructors, wherever those features can be applied without reducing the effectiveness of the training or negatively affecting academic standards. (d)  Government-wide Policies and Evaluation The Administrator shall issue policies to promote the development of performance standards for training and uniform implementation of this section by executive agencies, with due regard for differences in program requirements among agencies that may be appropriate and warranted in view of the agency mission. The Administrator shall evaluate the implementation of the provisions of subsection (c) by executive agencies. (e)  Information on Acquisition and Contracting Training The Administrator shall ensure that the heads of executive agencies collect and maintain standardized information on the acquisition and contracting workforce related to the implementation of subsection (c). (f)  Acquisition Workforce Human Capital Succession Plan. (1)  In general Each Chief Acquisition Officer for an executive agency shall develop, in consultation with the Chief Human Capital Officer for the agency and the Associate Administrator, a succession plan consistent with the agencys strategic human capital plan for the recruitment, development, and retention of the agencys acquisition workforce, with a particular focus on warranted contracting officers and program managers of the agency. (2)  Content of plan The acquisition workforce succession plan shall address (A) recruitment goals for personnel from procurement intern programs; (B) the agencys acquisition workforce training needs; (C) actions to retain high performing acquisition professionals who possess critical relevant skills; (D) recruitment goals for personnel from the Federal Career Intern Program; and (E) recruitment goals for personnel from the Presidential Management Fellows Program. (g)  Acquisition Workforce Development Strategic Plan. (1)  Purpose The purpose of this subsection is to authorize the preparation and completion of the Acquisition Workforce Development Strategic Plan, which is a plan for Federal agencies other than the Department of Defense to (A) develop a specific and actionable 5-year plan to increase the size of the acquisition workforce; and (B) operate a government-wide acquisition intern program for the Federal agencies. (2)  Establishment of plan The Associate Administrator shall be responsible for the management, oversight, and administration of the Acquisition Workforce Development Strategic Plan in cooperation and consultation with the Office of Federal Procurement Policy and with the assistance of the Federal Acquisition Institute. (3)  Criteria The Acquisition Workforce Development Strategic Plan shall include an examination of the following matters: (A) The variety and complexity of acquisitions conducted by each Federal agency covered by the plan, and the workforce needed to effectively carry out the acquisitions. (B) The development of a sustainable funding model to support efforts to hire, retain, and train an acquisition workforce of appropriate size and skill to effectively carry out the acquisition programs of the Federal agencies covered by the plan, including an examination of interagency funding methods and a discussion of how the model of the Defense Acquisition Workforce Development Fund could be applied to civilian agencies. (C) Any strategic human capital planning necessary to hire, retain, and train an acquisition workforce of appropriate size and skill at each Federal agency covered by the plan. (D) Methodologies that Federal agencies covered by the plan can use to project future acquisition workforce personnel hiring requirements, including an appropriate distribution of such personnel across each category of positions designated as acquisition workforce personnel under section 1703(g) of this title (E) Government-wide training standards and certification requirements necessary to enhance the mobility and career opportunities of the Federal acquisition workforce within the Federal agencies covered by the plan. (F) If the Associate Administrator recommends as part of the plan a growth in the acquisition workforce of the Federal agencies covered by the plan below 25 percent over the next 5 years, an examination of each of the matters specified in subparagraphs (A) to (E) in the context of a 5-year plan that increases the size of such acquisition workforce by not less than 25 percent, or an explanation why such a level of growth would not be in the best interest of the Federal Government. (4)  Deadline for completion The Acquisition Workforce Development Strategic Plan shall be completed not later than one year after October 14, 2008 (5)  Funds The acquisition workforce development strategic plan shall be funded from the acquisition workforce training fund under section 1703(i) of this title (h)  Training in the Acquisition of Architect and Engineering Services The Administrator shall ensure that a sufficient number of Federal employees are trained in the acquisition of architect and engineering services. (i)  Utilization of Recruitment and Retention Authorities The Administrator, in coordination with the Director of the Office of Personnel Management, shall encourage executive agencies to use existing authorities, including direct hire authority and tuition assistance programs, to recruit and retain acquisition personnel and consider recruiting acquisition personnel who may be retiring from the private sector, consistent with existing laws and regulations. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3706 Pub. L. 111383, div. A, title X,  1075(e)(15) Jan. 7, 2011 124 Stat. 4375 Pub. L. 11281, div. A, title VIII,  864(a) Dec. 31, 2011 125 Stat. 1522 Pub. L. 112239, div. A, title X,  1076(a)(14) Jan. 2, 2013 126 Stat. 1948  Amendments Not Shown in Text Subsec. (g) of this section was derived from Pub. L. 110417 Oct. 14, 2008 122 Stat. 4553 Pub. L. 111350 Jan. 4, 2011 124 Stat. 3677 Section 869 of Pub. L. 110417 Pub. L. 111383, div. A, title X,  1075(e)(15) Jan. 7, 2011 124 Stat. 4375 section 6(a) of Pub. L. 111350 section 101 of this title Section 869 of Pub. L. 110417 (1) in subsection (b), by striking 433(a) and inserting 433a(a); and (2) in subsection (c)(4) (A) by striking 37(j) and inserting 37(g); and (B) by striking 433(j) and inserting 433(g). Such references did not appear in the text of subsec. (g) as enacted. See Historical and Revision Notes below.       Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1704(a)(1) no source. 1704(a)(2) 41:433a(h). Pub. L. 110181, div. A, title VIII,  855 Jan. 28, 2008 122 Stat. 251 1704(b)(f) 41:433a(a)(e). 1704(g) 41:433a note. Pub. L. 110417 Oct. 14, 2008 122 Stat. 4553 1704(h), (i) 41:433a(f), (g). In subsection (a), the definition of executive agency is omitted as unnecessary. In subsection (f)(1), the words Not later than 1 year after the date of the enactment of this Act are omitted as obsolete. In subsection (g)(2), the words Associate Administrator are substituted for Associate Administrator for Acquisition Workforce Programs designated under section 855(a) of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 122 Stat. 251 41 U.S.C. 433(a) In subsection (g)(3)(D), the reference to section 37(j) of the Office of Federal Procurement Policy Act is changed to  section 1703(g) of this title Editorial Notes Amendments 2013Subsec. (b). Pub. L. 112239,  1076(a)(14) Pub. L. 11281,  864(a)(2) 2011Subsec. (b). Pub. L. 11281,  864(a)(2) Pub. L. 112239,  1076(a)(14) Pub. L. 11281,  864(a)(1) Subsec. (b)(5), (6). Pub. L. 11281,  864(a)(3) Statutory Notes and Related Subsidiaries Effective Date of 2013 Amendment Pub. L. 112239, div. A, title X,  1076(a) Jan. 2, 2013 126 Stat. 1947 Dec. 31, 2011 Pub. L. 11281 Expansion of Training and Use of Information Technology Cadres Pub. L. 113291, div. A, title VIII,  835 Dec. 19, 2014 128 Stat. 3449  (a)  Purpose The purpose of this section is to ensure timely progress by Federal agencies toward developing, strengthening, and deploying information technology acquisition cadres consisting of personnel with highly specialized skills in information technology acquisition, including program and project managers. (b)  Strategic Planning. (1)  In general The Administrator for Federal Procurement Policy, in consultation with the Administrator for E-Government and Information Technology, shall work with Federal agencies, other than the Department of Defense, to update their acquisition human capital plans that were developed pursuant to the October 27, 2009 section 1704(g) of title 41 Public Law 110417 122 Stat. 4553 (2)  Elements The updates required by paragraph (1) shall be submitted to the Administrator for Federal Procurement Policy and shall address, at a minimum, each Federal agencys consideration or use of the following procedures: (A) Development of an information technology acquisition cadre within the agency or use of memoranda of understanding with other agencies that have such cadres or personnel with experience relevant to the agencys information technology acquisition needs. (B) Development of personnel assigned to information technology acquisitions, including cross-functional training of acquisition information technology and program personnel. (C) Use of the specialized career path for information technology program managers as designated by the Office of Personnel Management and plans for strengthening information technology program management. (D) Use of direct hire authority. (E) Conduct of peer reviews. (F) Piloting of innovative approaches to information technology acquisition workforce development, such as industry-government rotations. (c)  Federal Agency Defined In this section, the term Federal agency means each agency listed in section 901(b) of title 31  1705. Advocates for competition (a)  Establishment and Designation. (1)  Establishment Each executive agency has an advocate for competition. (2)  Designation The head of each executive agency shall (A) designate for the executive agency and for each procuring activity of the executive agency one officer or employee serving in a position authorized for the executive agency on July 18, 1984 section 1702(c) of this title (B) not assign those officers or employees duties or responsibilities that are inconsistent with the duties and responsibilities of the advocates for competition; and (C) provide those officers or employees with the staff or assistance necessary to carry out the duties and responsibilities of the advocate for competition, such as individuals who are specialists in engineering, technical operations, contract administration, financial management, supply management, and utilization of small and disadvantaged business concerns. (b)  Duties and Functions The advocate for competition of an executive agency shall (1) be responsible for challenging barriers to, and promoting full and open competition in, the procurement of property and services by the executive agency; (2) review the procurement activities of the executive agency; (3) identify and report to the senior procurement executive of the executive agency (A) opportunities and actions taken to achieve full and open competition in the procurement activities of the executive agency; and (B) any condition or action which has the effect of unnecessarily restricting competition in the procurement actions of the executive agency; (4) prepare and transmit to the senior procurement executive an annual report describing (A) the advocates activities under this section; (B) new initiatives required to increase competition; and (C) remaining barriers to full and open competition; (5) recommend to the senior procurement executive (A) goals and the plans for increasing competition on a fiscal year basis; and (B) a system of personal and organizational accountability for competition, which may include the use of recognition and awards to motivate program managers, contracting officers, and others in authority to promote competition in procurement programs; and (6) describe other ways in which the executive agency has emphasized competition in programs for procurement training and research. (c)  Responsibilities The advocate for competition for each procuring activity is responsible for promoting full and open competition, promoting the acquisition of commercial products and commercial services, and challenging barriers to acquisition, including unnecessarily restrictive statements of need, unnecessarily detailed specifications, and unnecessarily burdensome contract clauses. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3709 Pub. L. 115232, div. A, title VIII,  836(b)(2) Aug. 13, 2018 132 Stat. 1861        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1705 41:418. Pub. L. 93400,  20 Pub. L. 98369, title VII,  2732(a) July 18, 1984 98 Stat. 1197 Pub. L. 103355, title VIII,  8303(a) Oct. 13, 1994 108 Stat. 3398 Editorial Notes Amendments 2018Subsec. (c). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  1706. Personnel evaluation The head of each executive agency subject to division C shall ensure, with respect to the employees of that agency whose primary duties and responsibilities pertain to the award of contracts subject to the provisions of the Small Business and Federal Procurement Competition Enhancement Act of 1984 ( Public Law 98577 98 Stat. 3066 (1) increase competition and achieve cost savings through the elimination of procedures that unnecessarily inhibit full and open competition; (2) further the purposes of the Small Business and Federal Procurement Competition Enhancement Act of 1984 ( Public Law 98577 98 Stat. 3066 Public Law 98525, title XII 98 Stat. 2588 (3) further other objectives and purposes of the Federal acquisition system authorized by law. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3710        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1706 41:414a. Pub. L. 98577, title V,  502 Oct. 30, 1984 98 Stat. 3085 Editorial Notes  References in Text The Small Business and Federal Procurement Competition Enhancement Act of 1984, referred to in text, is Pub. L. 98577 Oct. 30, 1984 98 Stat. 3066 section 101 of this title The Defense Procurement Reform Act of 1984, referred to in par. (2), is Pub. L. 98525, title XII Oct. 19, 1984 98 Stat. 2588 section 2302 of Title 10  1707. Publication of proposed regulations (a)  Covered Policies, Regulations, Procedures, and Forms. (1)  Required comment period Except as provided in subsection (d), a procurement policy, regulation, procedure, or form (including an amendment or modification thereto) may not take effect until 60 days after it is published for public comment in the Federal Register pursuant to subsection (b) if it (A) relates to the expenditure of appropriated funds; and (B) (i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or (ii) has a significant cost or administrative impact on contractors or offerors. (2)  Exception A policy, regulation, procedure, or form may take effect earlier than 60 days after the publication date when there are compelling circumstances for the earlier effective date, but the effective date may not be less than 30 days after the publication date. (b)  Publication in Federal Register and Comment Period Subject to subsection (c), the head of the agency shall have published in the Federal Register a notice of the proposed procurement policy, regulation, procedure, or form and provide for a public comment period for receiving and considering the views of all interested parties on the proposal. The length of the comment period may not be less than 30 days. (c)  Contents of Notice Notice of a proposed procurement policy, regulation, procedure, or form prepared for publication in the Federal Register shall include (1) the text of the proposal or, if it is impracticable to publish the full text of the proposal, a summary of the proposal and a statement specifying the name, address, and telephone number of the officer or employee of the executive agency from whom the full text may be obtained; and (2) a request for interested parties to submit comments on the proposal and the name and address of the officer or employee of the Federal Government designated to receive the comments. (d)  Waiver The requirements of subsections (a) and (b) may be waived by the officer authorized to issue a procurement policy, regulation, procedure, or form if urgent and compelling circumstances make compliance with the requirements impracticable. (e)  Effectiveness of Policy, Regulation, Procedure, or Form. (1)  Temporary basis A procurement policy, regulation, procedure, or form for which the requirements of subsections (a) and (b) are waived under subsection (d) is effective on a temporary basis if (A) a notice of the policy, regulation, procedure, or form is published in the Federal Register and includes a statement that the policy, regulation, procedure, or form is temporary; and (B) provision is made for a public comment period of 30 days beginning on the date on which the notice is published. (2)  Final policy, regulation, procedure, or form After considering the comments received, the head of the agency waiving the requirements of subsections (a) and (b) under subsection (d) may issue the final procurement policy, regulation, procedure, or form. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3710        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1707 41:418b. Pub. L. 93400,  22 Pub. L. 98577, title III,  302(a) Oct. 30, 1984 98 Stat. 3076 Pub. L. 103355, title V,  5092 Oct. 13, 1994 108 Stat. 3362 Pub. L. 104106, title XLIII,  4321(a)(9) Feb. 10, 1996 110 Stat. 671 In subsection (a)(2), the words Notwithstanding the preceding sentence are omitted as unnecessary.  1708. Procurement notice (a)  Notice Requirement Except as provided in subsection (b) (1) an executive agency intending to solicit bids or proposals for a contract for property or services for a price expected to exceed $10,000, but not to exceed $25,000, shall post, for not less than 10 days, in a public place at the contracting office issuing the solicitation a notice of solicitation described in subsection (c); (2) an executive agency shall publish a notice of solicitation described in subsection (c) if the agency intends to (A) solicit bids or proposals for a contract for property or services for a price expected to exceed $25,000; or (B) place an order, expected to exceed $25,000, under a basic agreement, basic ordering agreement, or similar arrangement; and (3) an executive agency awarding a contract for property or services for a price exceeding $25,000, or placing an order exceeding $25,000 under a basic agreement, basic ordering agreement, or similar arrangement, shall furnish for publication a notice announcing the award or order if there is likely to be a subcontract under the contract or order. (b)  Exemptions. (1)  In general A notice is not required under subsection (a) if (A) the proposed procurement is for an amount not greater than the simplified acquisition threshold and is to be conducted by (i) using widespread electronic public notice of the solicitation in a form that allows convenient and universal user access through a single, Government-wide point of entry; and (ii) permitting the public to respond to the solicitation electronically; (B) the notice would disclose the executive agencys needs and disclosure would compromise national security; (C) the proposed procurement would result from acceptance of (i) an unsolicited proposal that demonstrates a unique and innovative research concept and publication of a notice of the unsolicited research proposal would disclose the originality of thought or innovativeness of the proposal or would disclose proprietary information associated with the proposal; or (ii) a proposal submitted under section 9 of the Small Business Act ( 15 U.S.C. 638 (D) the procurement is made against an order placed under a requirements contract, a task order contract, or a delivery order contract; (E) the procurement is made for perishable subsistence supplies; (F) the procurement is for utility services, other than telecommunication services, and only one source is available; or (G) the procurement is for the services of an expert for use in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government in a trial, hearing, or proceeding before a court, administrative tribunal, or agency, or in any part of an alternative dispute resolution process, whether or not the expert is expected to testify. (2)  Certain procurements The requirements of subsection (a)(2) do not apply to a procurement (A) under conditions described in paragraph (2), (3), (4), (5), or (7) of section 3304(a) of this title section 3204(a) of title 10 (B) for which the head of the executive agency makes a determination in writing, after consultation with the Administrator and the Administrator of the Small Business Administration, that it is not appropriate or reasonable to publish a notice before issuing a solicitation. (3)  Implementation consistent with international agreements Paragraph (1)(A) shall be implemented in a manner consistent with applicable international agreements. (c)  Contents of Notice Each notice of solicitation required by paragraph (1) or (2) of subsection (a) shall include (1) an accurate description of the property or services to be contracted for, which description (A) shall not be unnecessarily restrictive of competition; and (B) shall include, as appropriate, the agency nomenclature, National Stock Number or other part number, and a brief description of the items form, fit, or function, physical dimensions, predominant material of manufacture, or similar information that will assist a prospective contractor to make an informed business judgment as to whether a copy of the solicitation should be requested; (2) provisions that (A) (i) state whether the technical data required to respond to the solicitation will not be furnished as part of the solicitation; and (ii) identify the source in the Federal Government, if any, from which the technical data may be obtained; and (B) (i) state whether an offeror or its product or service must meet a qualification requirement in order to be eligible for award; and (ii) if so, identify the office from which the qualification requirement may be obtained; (3) the name, business address, and telephone number of the contracting officer; (4) a statement that all responsible sources may submit a bid, proposal, or quotation (as appropriate) that the agency shall consider; (5) in the case of a procurement using procedures other than competitive procedures, a statement of the reason justifying the use of those procedures and the identity of the intended source; and (6) in the case of a contract in an amount estimated to be greater than $25,000 but not greater than the simplified acquisition threshold, or a contract for the procurement of commercial products or commercial services using special simplified procedures (A) a description of the procedures to be used in awarding the contract; and (B) a statement specifying the periods for prospective offerors and the contracting officer to take the necessary preaward and award actions. (d)  Electronic Publication of Notice of Solicitation, Award, or Order A notice of solicitation, award, or order required to be published under subsection (a) shall be published by electronic means. The notice must be electronically accessible in a form that allows convenient and universal user access through the single Government-wide point of entry designated in the Federal Acquisition Regulation. (e)  Time Limitations. (1)  Issuing notice of solicitation and establishing deadline for submitting bids and proposals An executive agency required by subsection (a)(2) to publish a notice of solicitation may not (A) issue the solicitation earlier than 15 days after the date on which the notice is published; or (B) in the case of a contract or order expected to be greater than the simplified acquisition threshold, establish a deadline for the submission of all bids or proposals in response to the notice required by subsection (a)(2) that (i) in the case of a solicitation for research and development, is earlier than 45 days after the date the notice required for a bid or proposal for a contract described in subsection (a)(2)(A) is published; (ii) in the case of an order under a basic agreement, basic ordering agreement, or similar arrangement, is earlier than 30 days after the date the notice required for an order described in subsection (a)(2)(B) is published; or (iii) in any other case, is earlier than 30 days after the date the solicitation is issued. (2)  Establishing deadline when none provided by statute An executive agency shall establish a deadline for the submission of all bids or proposals in response to a solicitation for which a deadline is not provided by statute. Each deadline for the submission of offers shall afford potential offerors a reasonable opportunity to respond. (3)  Flexible deadlines The Administrator shall prescribe regulations defining limited circumstances in which flexible deadlines can be used under paragraph (1) for the issuance of solicitations and the submission of bids or proposals for the procurement of commercial products or commercial services. (f)  Consideration of Certain Timely Received Offers An executive agency intending to solicit offers for a contract for which a notice of solicitation is required to be posted under subsection (a)(1) shall ensure that contracting officers consider each responsive offer timely received from an offeror. (g)  Availability of Complete Solicitation Package and Payment of Fee An executive agency shall make available to a business concern, or the authorized representative of a concern, the complete solicitation package for any on-going procurement announced pursuant to a notice of solicitation under subsection (a). An executive agency may require the payment of a fee, not exceeding the actual cost of duplication, for a copy of the package. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3711 Pub. L. 115232, div. A, title VIII,  836(b)(3) Aug. 13, 2018 132 Stat. 1861 Pub. L. 11781, div. A, title XVII,  1702(h)(4) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1708(a) 41:416(a)(1). Pub. L. 93400,  18 Pub. L. 98369, title VII,  2732(a) July 18, 1984 98 Stat. 1195 Pub. L. 98577, title III,  303(a) Oct. 30, 1984 98 Stat. 3077 Pub. L. 99500,  101(c) [title X,  922(b), (d)(2)] Oct. 18, 1986 100 Stat. 1783151 Pub. L. 99591,  101(c) [title X,  922(b), (d)(2)] Oct. 30, 1986 100 Stat. 3341151 Pub. L. 99661, title IX Nov. 14, 1986 100 Stat. 3931 Pub. L. 10026,  3(5) Apr. 21, 1987 101 Stat. 273 Pub. L. 101510, title VIII,  806(d) Nov. 5, 1990 104 Stat. 1592 Pub. L. 103355, title I,  1055(b)(1) Oct. 13, 1994 108 Stat. 3265 Pub. L. 104106, title XLI,  4101(c) Feb. 10, 1996 110 Stat. 642 Pub. L. 10585, title VIII,  850(e)(2) Nov. 18, 1997 111 Stat. 1849 Pub. L. 105261, title X,  1069(d)(1) Oct. 17, 1998 112 Stat. 2136 Pub. L. 106398,  1 [[div. A] Oct. 30, 2000 114 Stat. 1654 Nov. 25, 2002 116 Stat. 2226 1708(b)(1), (2) 41:416(c). 1708(b)(3) no source. 1708(c) 41:416(b). 1708(d) 41:416(a)(2), (7). 1708(e) 41:416(a)(3), (5), (6). 1708(f) 41:416(a)(4). 1708(g) 41:416(d). In subsection (a)(3), the words under a basic agreement, basic ordering agreement, or similar arrangement are substituted for referred to in clause (A)(ii) for clarity. The words by the Secretary of Commerce are omitted as obsolete. The Secretary of Commerce no longer has responsibility for publishing notices of awards or orders. See revision note for subsection (d). In subsection (b)(2), the text of 41 U.S.C. 416(C)(1)(H) 6 U.S.C. 339(c) September 30, 2007 Subsection (b)(3) is added because of section 850(e)(3) of the National Defense Authorization Act for Fiscal Year 1998 ( Public Law 10585 111 Stat. 1849 Subsection (d) is substituted for 41:416(a)(2) and (7) to eliminate unnecessary words. Federal Business Opportunities is the designated single point of universal electronic public access for publication of all procurement information and notices previously published by the Secretary of Commerce in the Commerce Business Daily. See 66 Fed. Reg. 27407, May 16, 2001 October 1, 2003 December 28, 2001 January 2, 2002 In subsection (e)(1)(B)(i), the words required for a bid or proposal for a contract described in are substituted for required by for clarity. In subsection (e)(1)(B)(ii), the words required for an order described in are substituted for required by for clarity. Editorial Notes Amendments 2021Subsec. (b)(2)(A). Pub. L. 11781 2018Subsecs. (c)(6), (e)(3). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6 Applicability to Tennessee Valley Authority Pub. L. 98577, title III,  303(c) Oct. 30, 1984 98 Stat. 3079 The provisions of the amendments made by subsection (a) of this section [see Tables for classification] shall apply to the Tennessee Valley Authority only with respect to procurements to be paid from appropriated funds.  1709. Contracting functions performed by Federal personnel (a)  Covered Personnel Personnel referred to in subsection (b) are (1) an employee, as defined in section 2105 of title 5 (2) a member of the armed forces; and (3) an individual assigned to a Federal agency pursuant to subchapter VI of chapter 33 of title 5. (b)  Limitation on Payment for Advisory and Assistance Services No individual who is not an individual described in subsection (a) may be paid by an executive agency for services to conduct evaluations or analyses of any aspect of a proposal submitted for an acquisition unless personnel described in subsection (a) with adequate training and capabilities to perform the evaluations and analyses are not readily available in the agency or another Federal agency. When administering this subsection, the head of each executive agency shall determine in accordance with standards and procedures prescribed in the Federal Acquisition Regulation whether (1) a sufficient number of personnel described in subsection (a) in the agency or another Federal agency are readily available to perform a particular evaluation or analysis for the head of the executive agency making the determination; and (2) the readily available personnel have the training and capabilities necessary to perform the evaluation or analysis. (c)  Certain Relationship Not Affected This section does not affect the relationship between the Federal Government and a Federally funded research and development center. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3714        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1709(a) 41:419(b). Pub. L. 93400,  23 Pub. L. 103355, title VI,  6002(a) Oct. 13, 1994 108 Stat. 3363 1709(b) 41:419(a). 1709(c) 41:419(c). In subsection (a), before paragraph (1), the words Personnel referred to in subsection (b) are are substituted for For purposes of subsection (a) of this section, the personnel described in this subsection are as follows to eliminate unnecessary words. In paragraph (3), the words employee from State or local governments are substituted for person for clarity. Senate Revision Amendment In subsec. (a)(3), individual substituted for employee from State or local governments by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010). Statutory Notes and Related Subsidiaries Requirement for Guidance and Regulations Pub. L. 103355, title VI,  6002(b) Oct. 13, 1994 108 Stat. 3363  The Federal Acquisition Regulatory Council established by section 25(a) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 421(a) 41 U.S.C. 1302(a) (1) review part 37 of title 48 of the Code of Federal Regulations as it relates to the use of advisory and assistance services; and (2) provide guidance and promulgate regulations regarding (A) what actions Federal agencies are required to take to determine whether expertise is readily available within the Federal Government before contracting for advisory and technical services to conduct acquisitions; and (B) the manner in which personnel with expertise may be shared with agencies needing expertise for such acquisitions.  1710. Public-private competition required before conversion to contractor performance (a)  Public-private competition. (1)  When conversion to contractor performance is allowed A function of an executive agency performed by 10 or more agency civilian employees may not be converted, in whole or in part, to performance by a contractor unless the conversion is based on the results of a public-private competition that (A) formally compares the cost of performance of the function by agency civilian employees with the cost of performance by a contractor; (B) creates an agency tender, including a most efficient organization plan, in accordance with Office of Management and Budget Circular A76, as implemented on May 29, 2003 (C) includes the issuance of a solicitation; (D) determines whether the submitted offers meet the needs of the executive agency with respect to factors other than cost, including quality, reliability, and timeliness; (E) examines the cost of performance of the function by agency civilian employees and the cost of performance of the function by one or more contractors to demonstrate whether converting to performance by a contractor will result in savings to the Federal Government over the life of the contract, including (i) the estimated cost to the Federal Government (based on offers received) for performance of the function by a contractor; (ii) the estimated cost to the Federal Government for performance of the function by agency civilian employees; and (iii) an estimate of all other costs and expenditures that the Federal Government would incur because of the award of the contract; (F) requires continued performance of the function by agency civilian employees unless the difference in the cost of performance of the function by a contractor compared to the cost of performance of the function by agency civilian employees would, over all performance periods required by the solicitation, be equal to or exceed the lesser of (i) 10 percent of the personnel-related costs for performance of that function in the agency tender; or (ii) $10,000,000; and (G) examines the effect of performance of the function by a contractor on the agency mission associated with the performance of the function. (2)  Not a new requirement A function that is performed by the executive agency and is reengineered, reorganized, modernized, upgraded, expanded, or changed to become more efficient, but still essentially provides the same service, shall not be considered a new requirement. (3)  Prohibitions In no case may a function being performed by executive agency personnel be (A) modified, reorganized, divided, or in any way changed for the purpose of exempting the conversion of the function from the requirements of this section; or (B) converted to performance by a contractor to circumvent a civilian personnel ceiling. (b)  Consulting With Affected Employees or Their Representatives. (1)  Consulting with affected employees Each civilian employee of an executive agency responsible for determining under Office of Management and Budget Circular A76 whether to convert to contractor performance any function of the executive agency (A) shall, at least monthly during the development and preparation of the performance work statement and the management efficiency study used in making that determination, consult with civilian employees who will be affected by that determination and consider the views of the employees on the development and preparation of that statement and that study; and (B) may consult with the employees on other matters relating to that determination. (2)  Consulting with representatives. (A)  Employees represented by a labor organization In the case of employees represented by a labor organization accorded exclusive recognition under section 7111 of title 5 (B)  Employees not represented by a labor organization In the case of employees other than employees referred to in subparagraph (A), consultation with appropriate representatives of those employees shall satisfy the consultation requirement in paragraph (1). (3)  Regulations The head of each executive agency shall prescribe regulations to carry out this subsection. The regulations shall include provisions for the selection or designation of appropriate representatives of employees referred to in paragraph (2)(B) for purposes of consultation required by paragraph (1). (c)  Congressional Notification. (1)  Report Before commencing a public-private competition under subsection (a), the head of an executive agency shall submit to Congress a report containing the following: (A) The function for which the public-private competition is to be conducted. (B) The location at which the function is performed by agency civilian employees. (C) The number of agency civilian employee positions potentially affected. (D) The anticipated length and cost of the public-private competition, and a specific identification of the budgetary line item from which funds will be used to cover the cost of the public-private competition. (E) A certification that a proposed performance of the function by a contractor is not a result of a decision by an official of an executive agency to impose predetermined constraints or limitations on agency civilian employees in terms of man years, end strengths, full-time equivalent positions, or maximum number of employees. (2)  Examination of potential economic effect The report required under paragraph (1) shall include an examination of the potential economic effect of performance of the function by a contractor on (A) agency civilian employees who would be affected by such a conversion in performance; and (B) the local community and the Federal Government, if more than 50 agency civilian employees perform the function. (3)  Objections to public-private competition. (A)  Grounds A representative individual or entity at a facility where a public-private competition is conducted may submit to the head of the executive agency an objection to the public-private competition on the grounds that (i) the report required by paragraph (1) has not been submitted; or (ii) the certification required by paragraph (1)(E) was not included in the report required by paragraph (1). (B)  Deadlines The objection shall be in writing and shall be submitted within 90 days after the following date: (i) In the case of a failure to submit the report when required, the date on which the representative individual or an official of the representative entity authorized to pose the objection first knew or should have known of that failure. (ii) In the case of a failure to include the certification in a submitted report, the date on which the report was submitted to Congress. (C)  Report and certification required before solicitation or award of contract If the head of the executive agency determines that the report required by paragraph (1) was not submitted or that the required certification was not included in the submitted report, the function for which the public-private competition was conducted for which the objection was submitted may not be the subject of a solicitation of offers for, or award of, a contract until, respectively, the report is submitted or a report containing the certification in full compliance with the certification requirement is submitted. (d)  Exemption for the Purchase of Products and Services of the Blind and Other Severely Disabled People This section shall not apply to a commercial or industrial type function of an executive agency that is (1) included on the procurement list established pursuant to section 8503 of this title (2) planned to be changed to performance by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely disabled people in accordance with chapter 85 of this title. (e)  Inapplicability During War or Emergency The provisions of this section shall not apply during war or during a period of national emergency declared by the President or Congress. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3715        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1710 41:439. Pub. L. 93400,  43 Pub. L. 110181, title III,  327(a) Jan. 28, 2008 122 Stat. 63 In the heading for subsection (d) and in subsection (d)(2), the words disabled people are substituted for handicapped persons for consistency with chapter 85 of the revised title.  1711. Value engineering Each executive agency shall establish and maintain cost-effective procedures and processes for analyzing the functions of a program, project, system, product, item of equipment, building, facility, service, or supply of the agency. The analysis shall be (1) performed by qualified agency or contractor personnel; and (2) directed at improving performance, reliability, quality, safety, and life cycle costs. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3718        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1711 41:432. Pub. L. 93400,  36 Pub. L. 104106, title XLIII,  4306(a) Feb. 10, 1996 110 Stat. 665  1712. Record requirements (a)  Maintaining Records on Computer Each executive agency shall establish and maintain for 5 years a computer file, by fiscal year, containing unclassified records of all procurements greater than the simplified acquisition threshold in that fiscal year. (b)  Contents The record established under subsection (a) shall include, with respect to each procurement carried out using (1) competitive procedures (A) the date of contract award; (B) information identifying the source to whom the contract was awarded; (C) the property or services the Federal Government obtains under the procurement; and (D) the total cost of the procurement; or (2) procedures other than competitive procedures (A) the information described in paragraph (1); (B) the reason under section 3304(a) of this title section 3204(a) of title 10 (C) the identity of the organization or activity that conducted the procurement. (c)  Separate Record Category for Procurements Resulting in One Bid or Proposal Information included in a record pursuant to subsection (b)(1) that relates to procurements resulting in the submission of a bid or proposal by only one responsible source shall be separately categorized from the information relating to other procurements included in the record. The record of that information shall be designated noncompetitive procurements using competitive procedures. (d)  Transmission and Data Entry of Information The head of each executive agency shall (1) ensure the accuracy of the information included in the record established and maintained by the agency under subsection (a); and (2) transmit in a timely manner such information to the General Services Administration for entry into the Federal Procurement Data System referred to in section 1122(a)(4) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3718 Pub. L. 11781, div. A, title XVII,  1702(h)(5) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1712 41:417. Pub. L. 93400,  19 Pub. L. 98369, title VII,  2732(a) July 18, 1984 98 Stat. 1197 Pub. L. 103355, title IV,  4403 Oct. 13, 1994 108 Stat. 3349 Pub. L. 110417, title VIII,  874(b) Oct. 14, 2008 122 Stat. 4558 Editorial Notes Amendments 2021Subsec. (b)(2)(B). Pub. L. 11781  1713. Procurement data (a)  Definitions In this section: (1)  Qualified hubzone small business concern The term qualified HUBZone small business concern has the meaning given that term in section 31(b) of the Small Business Act. (2)  Small business concern owned and controlled by socially and economically disadvantaged individuals The term small business concern owned and controlled by socially and economically disadvantaged individuals has the meaning given that term in section 8(d) of the Small Business Act ( 15 U.S.C. 637(d) (3)  Small business concern owned and controlled by women The term small business concern owned and controlled by women has the meaning given that term in section 8(d) of the Small Business Act ( 15 U.S.C. 637(d) Public Law 100533 102 Stat. 2692 (b)  Reporting Each Federal agency shall report to the Office of Federal Procurement Policy the number of qualified HUBZone small business concerns, the number of small businesses owned and controlled by women, and the number of small business concerns owned and controlled by socially and economically disadvantaged individuals, by gender, that are first time recipients of contracts from the agency. The Office shall take appropriate action to ascertain, for each fiscal year, the number of those small businesses that have newly entered the Federal market. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3719 Pub. L. 11591, div. A, title XVII,  1701(a)(4)(F)(ii) Dec. 12, 2017 131 Stat. 1796        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1713(a) 41:417a(b). Pub. L. 100533, title V,  502 Oct. 25, 1988 102 Stat. 2697 Pub. L. 105135, title VI,  604(f)(2) Dec. 2, 1997 111 Stat. 2634 1713(b) 41:417a(a). In subsection (b), the words socially and economically disadvantaged individuals are substituted for socially and economically disadvantaged businesses for consistency with the term set out in subsection (a). Editorial Notes  References in Text Section 31(b) of the Small Business Act, referred to in subsec. (a)(1), is classified to section 657a(b) of Title 15 Section 204 of the Womens Business Ownership Act of 1988, referred to in subsec. (a)(3), is section 204 of Pub. L. 100533 section 637 of Title 15 Amendments 2017Subsec. (a). Pub. L. 11591 15 U.S.C. 632(p) Statutory Notes and Related Subsidiaries Effective Date of 2017 Amendment Amendment by Pub. L. 11591 Jan. 1, 2020 section 1701(j) of Pub. L. 11591 section 657a of Title 15 CHAPTER 19 SIMPLIFIED ACQUISITION PROCEDURES    Sec.  1901. Simplified acquisition procedures.  1902. Procedures applicable to purchases below micro-purchase threshold.  1903. Special emergency procurement authority.  1904. Certain transactions for defense against attack.  1905. List of laws inapplicable to contracts or subcontracts not greater than simplified acquisition threshold.  1906. List of laws inapplicable to procurements of commercial products and commercial services.  1907. List of laws inapplicable to procurements of commercially available off-the-shelf items.  1908. Inflation adjustment of acquisition-related dollar thresholds.  1909. Management of purchase cards.  Editorial Notes Amendments 2018 Pub. L. 115232, div. A, title VIII,  836(b)(6)(B)(ii) Aug. 13, 2018 132 Stat. 1861 2012 Pub. L. 112194,  2(a)(2) Oct. 5, 2012 126 Stat. 1447  1901. Simplified acquisition procedures (a)  When Procedures Are To Be Used To promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for special simplified procedures for purchases of property and services for amounts (1) not greater than the simplified acquisition threshold; and (2) greater than the simplified acquisition threshold but not greater than $5,000,000 for which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial products or commercial services. (b)  Prohibition on Dividing Purchases A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts to use the simplified acquisition procedures required by subsection (a). (c)  Promotion of Competition Required When using simplified acquisition procedures, the head of an executive agency shall promote competition to the maximum extent practicable. (d)  Consideration of Offers Timely Received The simplified acquisition procedures contained in the Federal Acquisition Regulation shall include a requirement that a contracting officer consider each responsive offer timely received from an eligible offeror. (e)  Special Rules for Commercial Products and Commercial Services The Federal Acquisition Regulation shall provide that an executive agency using special simplified procedures to purchase commercial products or commercial services (1) shall publish a notice in accordance with section 1708 of this title section 1708(c)(4) of this title (2) may not conduct the purchase on a sole source basis unless the need to do so is justified in writing and approved in accordance with section 3204(e) of title 10 section 3304(e) of this title (3) shall include in the contract file a written description of the procedures used in awarding the contract and the number of offers received. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3719 Pub. L. 115232, div. A, title VIII,  836(b)(4) Aug. 13, 2018 132 Stat. 1861 Pub. L. 11781, div. A, title XVII,  1702(h)(6) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1901 41:427. Pub. L. 93400,  31 Pub. L. 103355, title IV,  4201(a) Oct. 13, 1994 108 Stat. 3342 Pub. L. 104106, title XLII,  4202(c) Feb. 10, 1996 110 Stat. 653 Pub. L. 104201, title X,  1074(b)(6) Sept. 23, 1996 110 Stat. 2660 Pub. L. 10585, title VIII,  850(d) Nov. 18, 1997 111 Stat. 1848 Section 31(e) of the Office of Federal Procurement Policy Act ( 41 U.S.C. 427(e) In subsection (e)(2), the reference to section 253 of this title Editorial Notes Amendments 2021Subsec. (e)(2). Pub. L. 11781 2018Subsec. (a)(2). Pub. L. 115232,  836(b)(4)(A) Subsec. (e). Pub. L. 115232,  836(b)(4)(B) Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6 Staturory Notes and Related Subsidiaries Procurement Through Commercial E-Commerce Portals Pub. L. 11591, div. A, title VIII,  846 Dec. 12, 2017 131 Stat. 1483 Pub. L. 115232, div. A, title VIII,  838(a) Aug. 13, 2018 132 Stat. 1875 Pub. L. 11781, div. A, title VIII,  853 Dec. 27, 2021 135 Stat. 1848  (a)  Establishment of Program The Administrator shall establish a program to procure commercial products through commercial e-commerce portals for purposes of enhancing competition, expediting procurement, enabling market research, and ensuring reasonable pricing of commercial products. The Administrator shall carry out the program in accordance with this section, through multiple contracts with multiple commercial e-commerce portal providers, and shall design the program to be implemented in phases with the objective of enabling Government-wide use of such portals. (b)  Use of Program The head of a department or agency may procure, as appropriate, commercial products for the department or agency using the program established pursuant to subsection (a). (c)  Implementation and Reporting Requirements The Director of the Office of Management and Budget, in consultation with the Administrator and the heads of other relevant departments and agencies, shall carry out the implementation phases set forth in, and submit to the appropriate congressional committees the items of information required by, the following paragraphs: (1)  Phase i: implementation plan Not later than 90 days after the date of the enactment of this Act [ Dec. 12, 2017 (2)  Phase ii: market analysis and consultation Not later than one year after the date of the submission of the implementation plan and schedule required under paragraph (1), recommendations for any changes to, or exemptions from, laws necessary for effective implementation of this section, and information on the results of the following actions: (A) Market analysis and initial communications with potential commercial e-commerce portal providers on technical considerations of how the portals function (including the use of standard terms and conditions of the portals by the Government), the degree of customization that can occur without creating a Government-unique portal, the measures necessary to address the considerations for supplier and product screening specified in subsection (e), security of data, considerations pertaining to nontraditional Government contractors, and potential fees, if any, to be charged by the Administrator, the portal provider, or the suppliers for participation in the program established pursuant to subsection (a). (B) Consultation with affected departments and agencies about their unique procurement needs, such as supply chain risks for health care products, information technology, software, or any other category determined necessary by the Administrator. (C) An assessment of the products or product categories that are suitable for purchase on the commercial e-commerce portals. (D) An assessment of the precautions necessary to safeguard any information pertaining to the Federal Government, especially precautions necessary to protect against national security or cybersecurity threats. (E) A review of standard terms and conditions of commercial e-commerce portals in the context of Government requirements. (F) An assessment of the impact on existing programs, including schedules, set-asides for small business concerns, and other preference programs. (3)  Phase iii: program implementation guidance Not later than two years after the date of the submission of the implementation plan and schedule required under paragraph (1), guidance to implement and govern the use of the program established pursuant to subsection (a), including protocols for oversight of procurement through the program, and compliance with laws pertaining to supplier and product screening requirements, data security, and data analytics. (4)  Additional implementation phases A description of additional implementation phases, as determined by the Administrator, that includes a selection of agencies to participate in any such additional implementation phase (which may include the award of contracts to multiple commercial e-commerce portal providers). (5)  Additional testing Not later than 180 days after the date of the enactment of this paragraph [ Dec. 27, 2021 (A) begin testing commercial e-commerce portal models (other than any such model selected for the initial proof of concept) identified pursuant to paragraph (2); and (B) submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Oversight and Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate a report that includes (i) a summary of the assessments conducted under paragraph (2) with respect to a commercial e-commerce portal model identified pursuant to such paragraph; (ii) a list of the types of commercial products that could be procured using models tested pursuant to subparagraph (A); (iii) an estimate of the amount that could be spent by the head of a department or agency under the program, disaggregated by type of commercial e-commerce portal model; and (iv) an update on the models tested pursuant to subparagraph (A) and a timeline for completion of such testing. (6)  Report Upon completion of testing conducted under paragraph (5) and before taking any action with respect to the commercial e-commerce portal models tested, the Administrator of General Services shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives], the Committee on Oversight and Reform [now Committee on Oversight and Accountability] of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate, a report on the results of such testing that includes (A) an assessment and comparison of commercial e-commerce portal models with respect to (i) price and quality of the commercial products supplied by each commercial e-commerce portal model; (ii) supplier reliability and service; (iii) safeguards for the security of Government information and third-party supplier proprietary information; (iv) protections against counterfeit commercial products; (v) supply chain risks, particularly with respect to complex commercial products; and (vi) overall adherence to Federal procurement rules and policies; and (B) an analysis of the costs and benefits of the convenience to the Federal Government of procuring commercial products from each such commercial e-commerce portal model. (d)  Considerations for Commercial e-commerce Portals The Administrator shall consider commercial e-commerce portals for use under the program established pursuant to subsection (a) that are widely used in the private sector and have or can be configured to have features that facilitate the execution of program objectives, including features related to supplier and product selection that are frequently updated, an assortment of product and supplier reviews, invoicing payment, and customer service. (e)  Information on Suppliers, Products, and Purchases. (1)  Supplier participation and product screening The Administrator shall provide or ensure electronic availability to a commercial e-commerce portal provider awarded a contract pursuant to subsection (a) on a periodic basis information necessary to ensure compliance with laws pertaining to supplier and product screening as identified during implementation phase III, as described in subsection (c)(3). (2)  Provision of order information The Administrator shall require each commercial e-commerce portal provider awarded a contract pursuant to subsection (a) to provide order information as determined by the Administrator during implementation phase II, as described in subsection (c)(2). (f)  Relationship to Other Provisions of Law. (1) All laws, including laws that set forth policies, procedures, requirements, or restrictions for the procurement of property or services by the Federal Government, apply to the program established pursuant to subsection (a) unless otherwise provided in this section. (2) A procurement of a product made through a commercial e-commerce portal under the program established pursuant to subsection (a) is deemed to be an award of a prime contract for purposes of the goals established under section 15(g) of the Small Business Act ( 15 U.S.C. 644(g) (3) Nothing in this section shall be construed as limiting the authority of a department or agency to restrict competition to small business concerns. (4) Nothing in this section shall be construed as limiting the applicability of section 1341 of title 31 (5) A procurement of a product made through a commercial e-commerce portal under the program established pursuant to subsection (a) is deemed to satisfy requirements for full and open competition pursuant to sections 3201 through 3205 of title 10, United States Code, and section 3301 of title 41 (A) there are offers from two or more suppliers of such a product or similar product with substantially the same physical, functional, or performance characteristics on the online marketplace; and (B) the Administrator establishes procedures to implement subparagraph (A) and notifies Congress at least 30 days before implementing such procedures. (g)  Use of Commercial Practices and Standard Terms and Conditions A procurement of a product through a commercial e-commerce portal used under the program established pursuant to subsection (a) shall be made, to the maximum extent practicable, under the standard terms and conditions of the portal relating to purchasing on the portal. (h)  Disclosure, Protection, and Use of Information In any contract awarded to a commercial e-commerce portal provider pursuant to subsection (a), the Administrator shall require that the provider (1) agree not to sell or otherwise make available to any third party any information pertaining to a product ordered by the Federal Government through the commercial e-commerce portal in a manner that identifies the Federal Government, or any of its departments or agencies, as the purchaser, except if the information is needed to process or deliver an order or the Administrator provides written consent; (2) agree to take the necessary precautions to safeguard any information pertaining to the Federal Government, especially precautions necessary to protect against national security or cybersecurity threats; and (3) agree not to use, for pricing, marketing, competitive, or other purposes, any information, including any Government-owned data, such as purchasing trends or spending habits, related to a product from a third-party supplier featured on the commercial e-commerce portal or the transaction of such product, except as necessary to comply with the requirements of the program established in subsection (a). (i)  Simplified Acquisition Threshold A procurement through a commercial e-commerce portal used under the program established pursuant to subsection (a) shall not exceed the simplified acquisition threshold in section 134 of title 41 (j)  Comptroller General Assessments. (1)  Assessment of implementation plan Not later than 90 days after the Director of the Office of Management and Budget submits the implementation plan described in subsection (c)(1) to the appropriate congressional committees, the Comptroller General of the United States shall submit to the appropriate congressional committees an assessment of the plan, including any other matters the Comptroller General considers relevant to the plan. (2)  Assessment of program implementation Not later than three years after the first contract with a commercial e-commerce portal provider is awarded pursuant to subsection (a), the Comptroller General of the United States shall submit to the appropriate congressional committees a report on the challenges and benefits the General Services Administration and participating departments and agencies observe regarding implementation of the program established pursuant to subsection (a). The report shall include the following elements: (A) A description of the acquisition of the commercial e-commerce portals (including the extent to which the portals had to be configured or otherwise modified to meet the needs of the program) costs, and the implementation schedule. (B) A description of participation by suppliers, with particular attention to those described under subsection (e), that have registered or that have sold goods with at least one commercial e-commerce portal provider, including numbers, categories, and trends. (C) The effect, if any, of the program on the ability of agencies to meet goals established for suppliers and products described under subsection (e), including goals established under section 15(g) of the Small Business Act ( 15 U.S.C. 644(g) (D) A discussion of the limitations, if any, to participation by suppliers in the program. (E) Any other matters the Comptroller General considers relevant to report. (k)  Definitions In this section: (1)  Administrator The term Administrator means the Administrator of General Services. (2)  Appropriate congressional committees The term appropriate congressional committees means the following: (A) The Committees on Armed Services of the Senate and House of Representatives. (B) The Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives. (C) The Committee on Small Business and Entrepreneurship of the Senate and the Committee on Small Business of the House of Representatives. (3)  Commercial e-commerce portal The term commercial e-commerce portal means a commercial solution providing for the purchase of commercial products aggregated, distributed, sold, or manufactured via an online portal. The term does not include an online portal managed by the Government for, or predominantly for use by, Government agencies. (4)  Commercial product The term commercial product means a commercially available off-the-shelf item, as defined in section 104 of title 41 (5)  Small business concern The term small business concern has the meaning given such term under section 3 of the Small Business Act ( 15 U.S.C. 632  1902. Procedures applicable to purchases below micro-purchase threshold (a)  Definition (1) Except as provided in paragraph (2) of this subsection, for purposes of this section, the micro-purchase threshold is $10,000. (2) For purposes of this section, the micro-purchase threshold for procurement activities administered under sections 6303 through 6305 of title 31 by institutions of higher education (as defined in section 101(a) of the Higher Education Act of 1965 ( 20 U.S.C. 1001(a) (A) $10,000; or (B) such higher threshold as determined appropriate by the head of the relevant executive agency and consistent with clean audit findings under chapter 75 of title 31, internal institutional risk assessment, or State law. (b)  Compliance With Certain Requirements and Nonapplicability of Certain Authority. (1)  Compliance with certain requirements The head of each executive agency shall ensure that procuring activities of that agency, when awarding a contract with a price exceeding the micro-purchase threshold, comply with the requirements of section 8(a) of the Small Business Act ( 15 U.S.C. 637(a) Public Law 103355 15 U.S.C. 644 (2)  Nonapplicability of certain authority The authority under part 13.106(a)(1) of the Federal Acquisition Regulation (48 C.F.R. 13.106(a)(1)), as in effect on November 18, 1993 (c)  Nonapplicability of Certain Provisions An executive agency purchase with an anticipated value of the micro-purchase threshold or less is not subject to section 15(j) of the Small Business Act ( 15 U.S.C. 644(j) (d)  Purchases Without Competitive Quotations A purchase with a price not greater than the micro-purchase threshold may be made without obtaining competitive quotations if an employee of an executive agency or a member of the armed forces, authorized to do so, determines that the price for the purchase is reasonable. (e)  Equitable Distribution Purchases with a price not greater than the micro-purchase threshold shall be distributed equitably among qualified suppliers. (f)  Implementation Through Federal Acquisition Regulation This section shall be implemented through the Federal Acquisition Regulation. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3720 Pub. L. 114328, div. A, title II,  217(b) Dec. 23, 2016 130 Stat. 2051 Pub. L. 11591, div. A, title VIII,  806(a) Dec. 12, 2017 131 Stat. 1456 Pub. L. 115232, div. A, title VIII Aug. 13, 2018 132 Stat. 1847  Adjustment of Micro-Purchase Threshold For adjustment of dollar threshold pursuant to section 1908 of this title       Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1902 41:428. Pub. L. 93400,  32 Pub. L. 103355, title IV,  4301(a) Oct. 13, 1994 108 Stat. 3346 Pub. L. 104106, title XLIII Feb. 10, 1996 110 Stat. 664 Senate Revision Amendment In subsecs. (a), (d), and (e), $3,000 substituted for $2,500 by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010). Editorial Notes Amendments 2018Subsec. (a)(1). Pub. L. 115232,  821(b) Subsec. (b)(1). Pub. L. 115232,  812(a)(2)(C)(ix) section 2323 of title 10 15 U.S.C. 637(a) 2017Subsec. (a)(1). Pub. L. 11591 2016Subsec. (a). Pub. L. 114328,  217(b)(1) Subsecs. (d), (e). Pub. L. 114328,  217(b)(2) Statutory Notes and Related Subsidiaries Convenience Checks Pub. L. 11591, div. A, title VIII,  806(b) Dec. 12, 2017 131 Stat. 1456 A convenience check may not be used for an amount in excess of one half of the micro-purchase threshold under section 1902(a) of title 41 Micro-Purchase Threshold for Procurement Solicitations by Research Institutions Pub. L. 114329, div. A, title II,  207 Jan. 6, 2017 130 Stat. 3001  (a)  Micro-purchase Threshold The micro-purchase threshold for procurement activities administered under sections 6303 through 6305 of title 31, United States Code, awarded by the Foundation, the National Aeronautics and Space Administration, or the National Institute of Standards and Technology to institutions of higher education, or related or affiliated nonprofit entities, or to nonprofit research organizations or independent research institutes is (1) $10,000 (as adjusted periodically to account for inflation); or (2) such higher threshold as determined appropriate by the head of the relevant executive agency and consistent with audit findings under chapter 75 of title 31, United States Code, internal institutional risk assessment, or State law. (b)  Uniform Guidance The Uniform Guidance shall be revised to conform with the requirements of this section. For purposes of the preceding sentence, the term Uniform Guidance means the uniform administrative requirements, cost principles, and audit requirements for Federal awards contained in part 200 of title 2 of the Code of Federal Regulations. [For definitions of terms used in section 207 of Pub. L. 114329 section 2 of Pub. L. 114329 section 1862s of Title 42 Micro-Purchase Guidelines Pub. L. 111240, title I,  1332 Sept. 27, 2010 124 Stat. 2541 Not later than 1 year after the date of enactment of this Act [ Sept. 27, 2010 41 U.S.C. 428 41 U.S.C. 1902 15 U.S.C. 631(a) [For definition of small business concern as used in section 1332 of Pub. L. 111240 section 1001 of Pub. L. 111240 section 632 of Title 15  1903. Special emergency procurement authority (a)  Applicability The authorities provided in subsections (b) and (c) apply with respect to a procurement of property or services by or for an executive agency that the head of the executive agency determines are to be used (1) in support of a contingency operation (as defined in section 101(a) of title 10 (2) to facilitate the defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack against the United States; (3) in support of a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate the provision of international disaster assistance pursuant to chapter 9 of part I of the Foreign Assistance Act of 1961 ( 22 U.S.C. 2292 (4) in support of an emergency or major disaster (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5122 (b)  Increased Thresholds and Limitation For a procurement to which this section applies under subsection (a) (1) the amount specified in section 1902(a), (d), and (e) of this title shall be deemed to be (A) $15,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and (B) $25,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States; (2) the term simplified acquisition threshold means (A) $750,000 in the case of a contract to be awarded and performed, or purchase to be made, in the United States; and (B) $1,500,000 in the case of a contract to be awarded and performed, or purchase to be made, outside the United States; and (3) the $5,000,000 limitation in sections 1901(a)(2) and 3305(a)(2) of this title and section 3205(a)(2) of title 10 (c)  Authority To Treat Property or Service as Commercial Product or Commercial Service. (1)  In general The head of an executive agency carrying out a procurement of property or a service to which this section applies under subsection (a)(2) may treat the property or service as a commercial product or a commercial service for the purpose of carrying out the procurement. (2)  Certain contracts not exempt from standards or requirements A contract in an amount of more than $15,000,000 that is awarded on a sole source basis for a product or service treated as a commercial product or a commercial service under paragraph (1) is not exempt from (A) cost accounting standards prescribed under section 1502 of this title (B) cost or pricing data requirements (commonly referred to as truth in negotiating) under chapter 35 of this title and chapter 271 of title 10. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3721 Pub. L. 11492, div. A, title VIII,  816 Nov. 25, 2015 129 Stat. 897 Pub. L. 114328, div. A, title VIII,  816 Dec. 23, 2016 130 Stat. 2272 Pub. L. 115232, div. A, title VIII,  836(b)(5) Aug. 13, 2018 132 Stat. 1861 Pub. L. 11781, div. A, title XVII,  1702(h)(7) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1903(a) 41:428a(a), (e). Pub. L. 93400,  32A Pub. L. 108136, title XIV,  1443(a)(1) Nov. 24, 2003 117 Stat. 1675 Pub. L. 108375, title VIII,  822 Oct. 28, 2004 118 Stat. 2016 1903(b) 41:428a(b), (c). 1903(c) 41:428a(d). Editorial Notes  References in Text The Foreign Assistance Act of 1961, referred to in subsec. (a)(3), is Pub. L. 87195 Sept. 4, 1961 75 Stat. 424 section 2151 of Title 22 Amendments 2021Subsec. (b)(3). Pub. L. 11781,  1702(h)(7)(A) Subsec. (c)(2)(B). Pub. L. 11781,  1701(h)(7)(B) 2018Subsec. (c). Pub. L. 115232,  836(b)(5)(A) Subsec. (c)(1). Pub. L. 115232,  836(b)(5)(B) Subsec. (c)(2). Pub. L. 115232,  836(b)(5)(C) 2016Subsec. (a)(2). Pub. L. 114328,  1641 Subsec. (a)(3), (4). Pub. L. 114328,  816 2015Subsec. (b)(2)(A). Pub. L. 11492,  816(1) Subsec. (b)(2)(B). Pub. L. 11492,  816(2) Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  1904. Certain transactions for defense against attack (a)  Authority. (1)  In general The head of an executive agency that engages in basic research, applied research, advanced research, and development projects that are necessary to the responsibilities of the executive agency in the field of research and development and have the potential to facilitate defense against or recovery from terrorism or nuclear, biological, chemical, or radiological attack may exercise the same authority (subject to the same restrictions and conditions) with respect to the research and projects as the Secretary of Defense may exercise under section 2371 1 1 (2)  Prototype projects The head of an executive agency, under the authority of paragraph (1), may carry out prototype projects that meet the requirements of paragraph (1) in accordance with the requirements and conditions provided for carrying out prototype projects under section 845 1 Public Law 103160 10 U.S.C. 2371 (3)  Application of requirements and conditions In applying the requirements and conditions of section 845 of that Act under this subsection (A) section 845(c) of that Act shall apply with respect to prototype projects carried out under paragraph (2); and (B) the Director of the Office of Management and Budget shall perform the functions of the Secretary of Defense under section 845(d) of that Act. (4)  Applicability to selected executive agencies. (A)  Office of management and budget The head of an executive agency may exercise authority under this subsection for a project only if authorized by the Director of the Office of Management and Budget. (B)  Department of homeland security Authority under this subsection does not apply to the Secretary of Homeland Security while section 831 of the Homeland Security Act of 2002 ( 6 U.S.C. 391 (b)  Regulations The Director of the Office of Management and Budget shall prescribe regulations to carry out this section. No transaction may be conducted under the authority of this section before the regulations take effect. (c)  Annual Report The annual report of the head of an executive agency that is required under section 2371(h) 1 (d)  Termination of Authority The authority to carry out transactions under subsection (a) terminates on September 30, 2008 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3721        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1904 41:428a note. Pub. L. 108136, title XIV,  1441 Nov. 24, 2003 117 Stat. 1673 In subsection (a)(2), the reference to subsection (g) of section 845 of the National Defense Authorization Act for Fiscal Year 1994 ( Public Law 103160 10 U.S.C. 2371 Public Law 108136 117 Stat. 1554 Public Law 109163 119 Stat. 3387 In subsection (a)(3)(A), the words paragraph (2) are substituted for this paragraph to correct the cross-reference. In subsection (a)(4)(A), the words to use the authority for such project are omitted as unnecessary. In subsection (c), the words Committee on Homeland Security and Governmental Affairs are substituted for Committee on Governmental Affairs on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004 January 5, 2007 Editorial Notes  References in Text Section 2371 of title 10 section 4021 of title 10 Pub. L. 116283,  1841(b)(1) Pub. L. 11781, div. A, title XVII,  1701(u)(2)(B) Dec. 27, 2021 135 Stat. 2151 Section 845 of the National Defense Authorization Act for Fiscal Year 1994 ( Public Law 103160 10 U.S.C. 2371 Pub. L. 11492, div. A, title VIII,  815(c) Nov. 25, 2015 129 Stat. 896 Section 2371(h) of title 10 Pub. L. 113291, div. A, title X,  1071(f)(20) Dec. 19, 2014 128 Stat. 3511 Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023  1905. List of laws inapplicable to contracts or subcontracts not greater than simplified acquisition threshold (a)  Definition In this section, the term Council has the meaning given that term in section 1301 of this title (b)  Inclusion in Federal Acquisition Regulation. (1)  In general The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. A provision of law properly included on the list pursuant to paragraph (2) does not apply to contracts or subcontracts in amounts not greater than the simplified acquisition threshold that are made by an executive agency. This section does not render a provision of law not included on the list inapplicable to contracts and subcontracts in amounts not greater than the simplified acquisition threshold. (2)  Laws enacted after october 13, 1994 A provision of law described in subsection (c) that is enacted after October 13, 1994 (c)  Covered Law A provision of law referred to in subsection (b)(2) is a provision of law that the Council determines sets forth policies, procedures, requirements, or restrictions for the procurement of property or services by the Federal Government, except for a provision of law that (1) provides for criminal or civil penalties; or (2) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts or subcontracts in amounts not greater than the simplified acquisition threshold. (d)  Petition A person may petition the Administrator to take appropriate action when a provision of law described in subsection (c) is not included on the list of inapplicable provisions of law as required by subsection (b) and the Council has not made a written determination pursuant to subsection (b)(2). The Administrator shall revise the Federal Acquisition Regulation to include the provision on the list of inapplicable provisions of law unless the Council makes a determination pursuant to subsection (b)(2) within 60 days after the petition is received. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3722        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1905(a) no source. 1905(b)(d) 41:429. Pub. L. 93400,  33 Pub. L. 103355, title IV,  4101 Oct. 13, 1994 108 Stat. 3339  1906. List of laws inapplicable to procurements of commercial products and commercial services (a)  Definition In this section, the term Council has the meaning given that term in section 1301 of this title (b)  Contracts. (1)  Inclusion in federal acquisition regulation The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to contracts for the procurement of commercial products or commercial services. A provision of law properly included on the list pursuant to paragraph (2) does not apply to purchases of commercial products or commercial services by an executive agency. This section does not render a provision of law not included on the list inapplicable to contracts for the procurement of commercial products or commercial services. (2)  Laws enacted after october 13, 1994 A provision of law described in subsection (d) that is enacted after October 13, 1994 (c)  Subcontracts. (1)  Definition In this subsection, the term subcontract includes a transfer of commercial products or commercial services between divisions, subsidiaries, or affiliates of a contractor or subcontractor. The term does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Federal Government and other parties and are not identifiable to any particular contract. (2)  Inclusion in federal acquisition regulation The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to subcontracts under a contract or subcontract for the procurement of commercial products or commercial services. A provision of law properly included on the list pursuant to paragraph (3) does not apply to those subcontracts. This section does not render a provision of law not included on the list inapplicable to subcontracts under a contract for the procurement of commercial products or commercial services. (3)  Provisions to be excluded from list A provision of law described in subsection (d) shall be included on the list of inapplicable provisions of law required by paragraph (2) unless the Council makes a written determination that it would not be in the best interest of the Federal Government to exempt subcontracts under a contract for the procurement of commercial products or commercial services from the applicability of the provision. (4)  Waiver not authorized This subsection does not authorize the waiver of the applicability of any provision of law with respect to any subcontract under a contract with a prime contractor reselling or distributing commercial products or commercial services of another contractor without adding value. (d)  Covered Law A provision of law referred to in subsections (b)(2) and (c) is a provision of law that the Council determines sets forth policies, procedures, requirements, or restrictions for the procurement of property or services by the Federal Government, except for a provision of law that (1) provides for criminal or civil penalties; or (2) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts for the procurement of commercial products or commercial services. (e)  Petition A person may petition the Administrator to take appropriate action when a provision of law described in subsection (d) is not included on the list of inapplicable provisions of law as required by subsection (b) or (c) and the Council has not made a written determination pursuant to subsection (b)(2) or (c)(3). The Administrator shall revise the Federal Acquisition Regulation to include the provision on the list of inapplicable provisions of law unless the Council makes a determination pursuant to subsection (b)(2) or (c)(3) within 60 days after the petition is received. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3723 Pub. L. 11591, div. A, title VIII,  820 Dec. 12, 2017 131 Stat. 1464 Pub. L. 115232, div. A, title VIII,  836(b)(6)(A) Aug. 13, 2018 132 Stat. 1861        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1906(a) no source. 1906(b)(e) 41:430. Pub. L. 93400,  34 Pub. L. 103355, title VIII,  8003(a) Oct. 13, 1994 108 Stat. 3388 Editorial Notes Amendments 2018 Pub. L. 115232,  836(b)(6)(B)(i) Subsecs. (b) to (d). Pub. L. 115232,  836(b)(6)(A) 2017Subsec. (c)(1). Pub. L. 11591 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  1907. List of laws inapplicable to procurements of commercially available off-the-shelf items (a)  Inclusion in Federal Acquisition Regulation. (1)  In general The Federal Acquisition Regulation shall include a list of provisions of law that are inapplicable to contracts for the procurement of commercially available off-the-shelf items. A provision of law properly included on the list pursuant to paragraph (2) does not apply to contracts for the procurement of commercially available off-the-shelf items. This section does not render a provision of law not included on the list inapplicable to contracts for the procurement of commercially available off-the-shelf items. (2)  Laws to be included A provision of law described in subsection (b) shall be included on the list of inapplicable provisions of law required by paragraph (1) unless the Administrator makes a written determination that it would not be in the best interest of the Federal Government to exempt contracts for the procurement of commercially available off-the-shelf items from the applicability of the provision. (3)  Other authorities or responsibilities not affected This section does not modify, supersede, impair, or restrict authorities or responsibilities under (A) section 15 of the Small Business Act ( 15 U.S.C. 644 (B) bid protest procedures developed under the authority of (i) subchapter V of chapter 35 of title 31; (ii)  section 3308 of title 10 (iii) sections 3706 and 3707 of this title. (b)  Covered Law Except as provided in subsection (a)(3), a provision of law referred to in subsection (a)(1) is a provision of law that the Administrator determines imposes Federal Government-unique policies, procedures, requirements, or restrictions for the procurement of property or services on persons whom the Federal Government has awarded contracts for the procurement of commercially available off-the-shelf items, except for a provision of law that (1) provides for criminal or civil penalties; or (2) specifically refers to this section and provides that, notwithstanding this section, it shall be applicable to contracts for the procurement of commercially available off-the-shelf items. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3724 Pub. L. 11781, div. A, title XVII,  1702(h)(8) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1907 41:431(a), (b). Pub. L. 93400,  35(a) Pub. L. 104106, title XLII,  4203(a) Feb. 10, 1996 110 Stat. 654 Pub. L. 10585, title X,  1073(g)(2)(C) Nov. 18, 1997 111 Stat. 1906 Amendments 2021Subsec. (a)(3)(B)(ii). Pub. L. 11781  1908. Inflation adjustment of acquisition-related dollar thresholds (a)  Definition In this section, the term Council has the meaning given that term in section 1301 of this title (b)  Application. (1)  In general Except as provided in paragraph (2), the requirement for adjustment under subsection (c) applies to a dollar threshold that is specified in law as a factor in defining the scope of the applicability of a policy, procedure, requirement, or restriction provided in that law to the procurement of property or services by an executive agency, as the Council determines. (2)  Exceptions Subsection (c) does not apply to dollar thresholds (A) in chapters 67 and 83 of this title; (B) in sections 3141 to 3144, 3146, and 3147 of title 40; (C) the United States Trade Representative establishes pursuant to title III of the Trade Agreements Act of 1979 ( 19 U.S.C. 2511 (D) in sections 3131 through 3134 of title 40, except any modification of any such dollar threshold made by regulation in effect on the date of the enactment of this subparagraph shall remain in effect. (3)  Relationship to other inflation adjustment authorities This section supersedes the applicability of other provisions of law that provide for the adjustment of a dollar threshold that is adjustable under this section. (c)  Requirement for Periodic Adjustment. (1)  Baseline constant dollar value For purposes of paragraph (2), the baseline constant dollar value for a dollar threshold (A) in effect on October 1, 2000 October 1, 2000 October 1, 2000 (B) specified in a law that takes effect after October 1, 2000 (2)  Adjustment On October 1 of each year evenly divisible by 5, the Council shall adjust each acquisition-related dollar threshold provided by law, as described in subsection (b)(1), to the baseline constant dollar value of that threshold. (3)  Exclusive means of adjustment A dollar threshold adjustable under this section shall be adjusted only as provided in this section. (d)  Publication The Council shall publish a notice of the adjusted dollar thresholds under this section in the Federal Register. The thresholds take effect on the date of publication and shall apply, in the case of the procurement of property or services by contract, to a contract, and any subcontract at any tier under the contract, in effect on that date without regard to the date of award of the contract or subcontract. (e)  Calculation An adjustment under this section shall be (1) calculated on the basis of changes in the Consumer Price Index for all-urban consumers published monthly by the Secretary of Labor; and (2) rounded, in the case of a dollar threshold that as calculated under paragraph (1) is (A) less than $10,000, to the nearest $500; (B) not less than $10,000, but less than $100,000, to the nearest $5,000; (C) not less than $100,000, but less than $1,000,000, to the nearest $50,000; (D) not less than $1,000,000, but less than $10,000,000, to the nearest $500,000; (E) not less than $10,000,000, but less than $100,000,000, to the nearest $5,000,000; (F) not less than $100,000,000, but less than $1,000,000,000, to the nearest $50,000,000; and (G) $1,000,000,000 or more, to the nearest $500,000,000. (f)  Petition for Inclusion of Omitted Threshold. (1)  Petition submitted to administrator A person may request adjustment of a dollar threshold adjustable under this section that is not included in a notice of adjustment published under subsection (d) by submitting a petition for adjustment to the Administrator. (2)  Actions of administrator On receipt of a petition for adjustment of a dollar threshold under paragraph (1), the Administrator (A) shall determine, in writing, whether the dollar threshold is required to be adjusted under this section; and (B) on determining that it should be adjusted, shall publish in the Federal Register a revised notice of the adjustment dollar thresholds under this section that includes the adjustment of the dollar threshold covered by the petition. (3)  Effective date of adjustment by petition The adjustment of a dollar threshold pursuant to a petition under this subsection takes effect on the date the revised notice adding the adjustment under paragraph (2)(B) is published. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3725 Pub. L. 11492, div. A, title VIII,  817 Nov. 25, 2015 129 Stat. 897 Pub. L. 11591, div. A, title VIII,  821 Dec. 12, 2017 131 Stat. 1464 Pub. L. 11758, div. G, title IX,  70922(f) Nov. 15, 2021 135 Stat. 1305 Pub. L. 11781, div. A, title VIII,  861 Dec. 27, 2021 135 Stat. 1851        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  1908(a) no source. 1908(b)(1) 41:431a(c). Pub. L. 93400,  35A Pub. L. 108375, title VIII,  807(a)(1) Oct. 28, 2004 118 Stat. 2010 1908(b)(2) 41:431a(d). 1908(b)(3) 41:431a note. Pub. L. 108375, title VIII,  807(c)(1) Oct. 28, 2004 118 Stat. 2011 1908(c)(1), (2) 41:431a(a). 1908(c)(3) 41:431a note. Pub. L. 108375, title VIII,  807(c)(2) Oct. 28, 2004 118 Stat. 2011 1908(d) 41:431a(b). 1908(e) 41:431a(e). 1908(f) 41:431a(f). In subsection (c)(3), the words After the date of the enactment of this Act are omitted as obsolete. In subsection (e)(1), the words Secretary of Labor are substituted for Department of Labor because of 29:551. Editorial Notes  References in Text The Trade Agreements Act of 1979, referred to in subsec. (b)(2)(C), is Pub. L. 9639 July 26, 1979 93 Stat. 144 section 2501 of Title 19 The date of the enactment of this subparagraph, referred to in subsec. (b)(2)(D), is the date of enactment of Pub. L. 11781 Dec. 27, 2021 Amendments 2021Subsec. (b)(2)(A). Pub. L. 11758 Subsec. (b)(2)(D). Pub. L. 11781,  861(a) Subsec. (d). Pub. L. 11781,  861(b) 2017Subsec. (d). Pub. L. 11591 2015Subsec. (e)(2). Pub. L. 11492,  817(1) Subsec. (e)(2)(D) to (G). Pub. L. 11492,  817(2) Statutory Notes and Related Subsidiaries Adjustment for Inflation of Right-Hand Drive Passenger Sedans Pub. L. 11281, div. A, title VIII,  814(b) Dec. 31, 2011 125 Stat. 1491 The Department of Defense representative to the Federal Acquisition Regulatory Council established under section 1302 of title 41 section 2253 of title 10 section 1908 of title 41  1909. Management of purchase cards (a)  Required Safeguards and Internal Controls The head of each executive agency that issues and uses purchase cards and convenience checks shall establish and maintain safeguards and internal controls to ensure the following: (1) There is a record in each executive agency of each holder of a purchase card issued by the agency for official use, annotated with the limitations on single transactions and total transactions that are applicable to the use of each such card or check by that purchase card holder. (2) Each purchase card holder and individual issued a convenience check is assigned an approving official other than the card holder with the authority to approve or disapprove transactions. (3) The holder of a purchase card and each official with authority to authorize expenditures charged to the purchase card are responsible for (A) reconciling the charges appearing on each statement of account for that purchase card with receipts and other supporting documentation; and (B) forwarding a summary report to the certifying official in a timely manner of information necessary to enable the certifying official to ensure that the Federal Government ultimately pays only for valid charges that are consistent with the terms of the applicable Government-wide purchase card contract entered into by the Administrator of General Services. (4) Any disputed purchase card charge, and any discrepancy between a receipt and other supporting documentation and the purchase card statement of account, is resolved in the manner prescribed in the applicable Government-wide purchase card contract entered into by the Administrator of General Services. (5) Payments on purchase card accounts are made promptly within prescribed deadlines to avoid interest penalties. (6) Rebates and refunds based on prompt payment, sales volume, or other actions by the agency on purchase card accounts are reviewed for accuracy and properly recorded as a receipt to the agency that pays the monthly bill. (7) Records of each purchase card transaction (including records on associated contracts, reports, accounts, and invoices) are retained in accordance with standard Government policies on the disposition of records. (8) Periodic reviews are performed to determine whether each purchase card holder has a need for the purchase card. (9) Appropriate training is provided to each purchase card holder and each official with responsibility for overseeing the use of purchase cards issued by the executive agency. (10) The executive agency has specific policies regarding the number of purchase cards issued by various component organizations and categories of component organizations, the credit limits authorized for various categories of card holders, and categories of employees eligible to be issued purchase cards, and that those policies are designed to minimize the financial risk to the Federal Government of the issuance of the purchase cards and to ensure the integrity of purchase card holders. (11) The executive agency uses effective systems, techniques, and technologies to prevent or identify illegal, improper, or erroneous purchases. (12) The executive agency invalidates the purchase card of each employee who (A) ceases to be employed by the agency, immediately upon termination of the employment of the employee; or (B) transfers to another unit of the agency, immediately upon the transfer of the employee unless the agency determines that the units are covered by the same purchase card authority. (13) The executive agency takes steps to recover the cost of any illegal, improper, or erroneous purchase made with a purchase card or convenience check by an employee, including, as necessary, through salary offsets. (b)  Guidance The Director of the Office of Management and Budget shall review existing guidance and, as necessary, prescribe additional guidance governing the implementation of the requirements of subsection (a) by executive agencies. (c)  Penalties for Violations. (1)  In general The head of each executive agency shall provide for appropriate adverse personnel actions or other punishment to be imposed in cases in which employees of the agency violate agency policies implementing the guidance required by subsection (b) or make illegal, improper, or erroneous purchases with purchase cards or convenience checks. (2)  Dismissal Penalties prescribed for employee misuse of purchase cards or convenience checks shall include dismissal of the employee, as appropriate. (3)  Reports on violations The guidance prescribed under subsection (b) shall direct each head of an executive agency with more than $10,000,000 in purchase card spending annually, and each Inspector General of such an executive agency, on a semiannual basis, to submit to the Director of the Office of Management and Budget a joint report on violations or other actions covered by paragraph (1) by employees of such executive agency. At a minimum, the report shall set forth the following: (A) A summary description of confirmed violations involving misuse of a purchase card following completion of a review by the agency or by the Inspector General of the agency. (B) A summary description of all adverse personnel action, punishment, or other action taken based on each violation. (d)  Risk Assessments and Audits The Inspector General of each executive agency shall (1) conduct periodic assessments of the agency purchase card or convenience check programs to identify and analyze risks of illegal, improper, or erroneous purchases and payments in order to develop a plan for using such risk assessments to determine the scope, frequency, and number of periodic audits of purchase card or convenience check transactions; (2) perform analysis or audits, as necessary, of purchase card transactions designed to identify (A) potentially illegal, improper, or erroneous uses of purchase cards; (B) any patterns of such uses; and (C) categories of purchases that could be made by means other than purchase cards in order to better aggregate purchases and obtain lower prices (excluding transactions made under card-based strategic sourcing arrangements); (3) report to the head of the executive agency concerned on the results of such analysis or audits; and (4) report to the Director of the Office of Management and Budget on the implementation of recommendations made to the head of the executive agency to address findings of any analysis or audit of purchase card and convenience check transactions or programs for compilation and transmission by the Director to Congress and the Comptroller General. (e)  Relationship to Department of Defense Purchase Card Regulations The requirements of this section shall not apply to the Department of Defense. See section 4754 of title 10 (Added Pub. L. 112194,  2(a)(1) Oct. 5, 2012 126 Stat. 1445 Pub. L. 11781, div. A, title XVII,  1702(h)(9) Dec. 27, 2021 135 Stat. 2158  Editorial Notes Amendments 2021Subsec. (e). Pub. L. 11781 Statutory Notes and Related Subsidiaries Deadline for Guidance on Management of Purchase Cards Pub. L. 112194,  2(c) Oct. 5, 2012 126 Stat. 1448 Oct. 5, 2012 CHAPTER 21 RESTRICTIONS ON OBTAINING AND DISCLOSING CERTAIN INFORMATION    Sec.  2101. Definitions.  2102. Prohibitions on disclosing and obtaining procurement information.  2103. Actions required of procurement officers when contacted regarding non-Federal employment.  2104. Prohibition on former officials acceptance of compensation from contractor.  2105. Penalties and administrative actions.  2106. Reporting information believed to constitute evidence of offense.  2107. Savings provisions.  2101. Definitions In this chapter: (1)  Contracting officer The term contracting officer means an individual who, by appointment in accordance with applicable regulations, has the authority to enter into a Federal agency procurement contract on behalf of the Government and to make determinations and findings with respect to the contract. (2)  Contractor bid or proposal information The term contractor bid or proposal information means any of the following information submitted to a Federal agency as part of, or in connection with, a bid or proposal to enter into a Federal agency procurement contract, if that information previously has not been made available to the public or disclosed publicly: (A) Cost or pricing data (as defined in section 3701 of title 10 section 3501(a) of this title (B) Indirect costs and direct labor rates. (C) Proprietary information about manufacturing processes, operations, or techniques marked by the contractor in accordance with applicable law or regulation. (D) Information marked by the contractor as contractor bid or proposal information, in accordance with applicable law or regulation. (3)  Federal agency The term Federal agency has the meaning given that term in section 102 of title 40 (4)  Federal agency procurement The term Federal agency procurement means the acquisition (by using competitive procedures and awarding a contract) of goods or services (including construction) from non-Federal sources by a Federal agency using appropriated funds. (5)  Official The term official means (A) an officer, as defined in section 2104 of title 5 (B) an employee, as defined in section 2105 of title 5 (C) a member of the uniformed services, as defined in section 2101(3) of title 5 (6)  Protest The term protest means a written objection by an interested party to the award or proposed award of a Federal agency procurement contract, pursuant to subchapter V of chapter 35 of title 31. (7)  Source selection information The term source selection information means any of the following information prepared for use by a Federal agency to evaluate a bid or proposal to enter into a Federal agency procurement contract, if that information previously has not been made available to the public or disclosed publicly: (A) Bid prices submitted in response to a Federal agency solicitation for sealed bids, or lists of those bid prices before public bid opening. (B) Proposed costs or prices submitted in response to a Federal agency solicitation, or lists of those proposed costs or prices. (C) Source selection plans. (D) Technical evaluation plans. (E) Technical evaluations of proposals. (F) Cost or price evaluations of proposals. (G) Competitive range determinations that identify proposals that have a reasonable chance of being selected for award of a contract. (H) Rankings of bids, proposals, or competitors. (I) Reports and evaluations of source selection panels, boards, or advisory councils. (J) Other information marked as source selection information based on a case-by-case determination by the head of the agency, the heads designee, or the contracting officer that its disclosure would jeopardize the integrity or successful completion of the Federal agency procurement to which the information relates. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3727 Pub. L. 11781, div. A, title XVII,  1702(h)(10) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2101(1) 41:423(f)(5). Pub. L. 93400,  27(f) Pub. L. 100679,  6(a) Nov. 17, 1988 102 Stat. 4063 Pub. L. 101189, title VIII,  814(a) Nov. 29, 1989 103 Stat. 1495 Pub. L. 101510, title XIV,  1484 l Nov. 5, 1990 104 Stat. 1720 Pub. L. 10225, title VII,  705(i) Apr. 6, 1991 105 Stat. 121 Pub. L. 103355, title VIII,  8301(e) Oct. 13, 1994 108 Stat. 3397 Pub. L. 104106, title XLIII,  4304(a) Feb. 10, 1996 110 Stat. 662 2101(2) 41:423(f)(1). 2101(3) 41:423(f)(3). 2101(4) 41:423(f)(4). 2101(5) 41:423(f)(7). 2101(6) 41:423(f)(6). 2101(7) 41:423(f)(2). Editorial Notes Amendments 2021Par. (2)(A). Pub. L. 11781  2102. Prohibitions on disclosing and obtaining procurement information (a)  Prohibition on Disclosing Procurement Information. (1)  In general Except as provided by law, a person described in paragraph (3) shall not knowingly disclose contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates. (2)  Employee of private sector organization In addition to the restriction in paragraph (1), an employee of a private sector organization assigned to an agency under chapter 37 of title 5 shall not knowingly disclose contractor bid or proposal information or source selection information during the 3-year period after the employees assignment ends, except as provided by law. (3)  Application Paragraph (1) applies to a person that (A) (i) is a present or former official of the Federal Government; or (ii) is acting or has acted for or on behalf of, or who is advising or has advised the Federal Government with respect to, a Federal agency procurement; and (B) by virtue of that office, employment, or relationship has or had access to contractor bid or proposal information or source selection information. (b)  Prohibition on Obtaining Procurement Information Except as provided by law, a person shall not knowingly obtain contractor bid or proposal information or source selection information before the award of a Federal agency procurement contract to which the information relates. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3728        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2102(a) 41:423(a). Pub. L. 93400,  27(a) Pub. L. 100679,  6(a) Nov. 17, 1988 102 Stat. 4063 Pub. L. 101189, title VIII,  814(a) Nov. 29, 1989 103 Stat. 1495 Pub. L. 101510, title XIV,  1484 l Nov. 5, 1990 104 Stat. 1720 Pub. L. 10225, title VII,  705(i) Apr. 6, 1991 105 Stat. 121 Pub. L. 103355, title VIII,  8301(e) Oct. 13, 1994 108 Stat. 3397 Pub. L. 104106, title XLIII,  4304(a) Feb. 10, 1996 110 Stat. 659 Pub. L. 107347, title II,  209(d)(4) Dec. 17, 2002 116 Stat. 2930 2102(b) 41:423(b).  2103. Actions required of procurement officers when contacted regarding non-Federal employment (a)  Actions Required An agency official participating personally and substantially in a Federal agency procurement for a contract in excess of the simplified acquisition threshold who contacts or is contacted by a person that is a bidder or offeror in that Federal agency procurement regarding possible non-Federal employment for that official shall (1) promptly report the contact in writing to the officials supervisor and to the designated agency ethics official (or designee) of the agency in which the official is employed; and (2) (A) reject the possibility of non-Federal employment; or (B) disqualify himself or herself from further personal and substantial participation in that Federal agency procurement until the agency authorizes the official to resume participation in the procurement, in accordance with the requirements of section 208 of title 18 (i) the person is no longer a bidder or offeror in that Federal agency procurement; or (ii) all discussions with the bidder or offeror regarding possible non-Federal employment have terminated without an agreement or arrangement for employment. (b)  Retention of Reports The agency shall retain each report required by this section for not less than 2 years following the submission of the report. The reports shall be made available to the public on request, except that any part of a report that is exempt from the disclosure requirements of section 552 of title 5 (c)  Persons Subject to Penalties The following are subject to the penalties and administrative actions set forth in section 2105 of this title (1) An official who knowingly fails to comply with the requirements of this section. (2) A bidder or offeror that engages in employment discussions with an official who is subject to the restrictions of this section, knowing that the official has not complied with paragraph (1) or (2) of subsection (a). ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3728        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2103(a) 41:423(c)(1). Pub. L. 93400,  27(c) Pub. L. 100679,  6(a) Nov. 17, 1988 102 Stat. 4063 Pub. L. 101189, title VIII,  814(a) Nov. 29, 1989 103 Stat. 1495 Pub. L. 101510, title XIV,  1484 l Nov. 5, 1990 104 Stat. 1720 Pub. L. 10225, title VII,  705(i) Apr. 6, 1991 105 Stat. 121 Pub. L. 103355, title VIII,  8301(e) Oct. 13, 1994 108 Stat. 3397 Pub. L. 104106, title XLIII,  4304(a) Feb. 10, 1996 110 Stat. 660 2103(b) 41:423(c)(2). 2103(c) 41:423(c)(3), (4).  2104. Prohibition on former officials acceptance of compensation from contractor (a)  Prohibition A former official of a Federal agency may not accept compensation from a contractor as an employee, officer, director, or consultant of the contractor within one year after the official (1) served, when the contractor was selected or awarded a contract, as the procuring contracting officer, the source selection authority, a member of the source selection evaluation board, or the chief of a financial or technical evaluation team in a procurement in which that contractor was selected for award of a contract in excess of $10,000,000; (2) served as the program manager, deputy program manager, or administrative contracting officer for a contract in excess of $10,000,000 awarded to that contractor; or (3) personally made for the Federal agency a decision to (A) award a contract, subcontract, modification of a contract or subcontract, or a task order or delivery order in excess of $10,000,000 to that contractor; (B) establish overhead or other rates applicable to one or more contracts for that contractor that are valued in excess of $10,000,000; (C) approve issuance of one or more contract payments in excess of $10,000,000 to that contractor; or (D) pay or settle a claim in excess of $10,000,000 with that contractor. (b)  When Compensation May Be Accepted Subsection (a) does not prohibit a former official of a Federal agency from accepting compensation from a division or affiliate of a contractor that does not produce the same or similar products or services as the entity of the contractor that is responsible for the contract referred to in paragraph (1), (2), or (3) of subsection (a). (c)  Implementing Regulations Regulations implementing this section shall include procedures for an official or former official of a Federal agency to request advice from the appropriate designated agency ethics official regarding whether the official or former official is or would be precluded by this section from accepting compensation from a particular contractor. (d)  Persons Subject to Penalties The following are subject to the penalties and administrative actions set forth in section 2105 of this title (1) A former official who knowingly accepts compensation in violation of this section. (2) A contractor that provides compensation to a former official knowing that the official accepts the compensation in violation of this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3729        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2104(a) 41:423(d)(1). Pub. L. 93400,  27(d) Pub. L. 100679,  6(a) Nov. 17, 1988 102 Stat. 4063 Pub. L. 101189, title VIII,  814(a) Nov. 29, 1989 103 Stat. 1495 Pub. L. 101510, title XIV,  1484 l Nov. 5, 1990 104 Stat. 1720 Pub. L. 10225, title VII,  705(i) Apr. 6, 1991 105 Stat. 121 Pub. L. 103355, title VIII,  8301(e) Oct. 13, 1994 108 Stat. 3397 Pub. L. 104106, title XLIII,  4304(a) Feb. 10, 1996 110 Stat. 660 2104(b) 41:423(d)(2). 2104(c) 41:423(d)(5). 2104(d) 41:423(d)(3), (4).  2105. Penalties and administrative actions (a)  Criminal Penalties A person that violates section 2102 of this title section 2102 of this title (b)  Civil Penalties The Attorney General may bring a civil action in an appropriate district court of the United States against a person that engages in conduct that violates section 2102, 2103, or 2104 of this title. On proof of that conduct by a preponderance of the evidence (1) an individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct; and (2) an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct. (c)  Administrative Actions. (1)  Types of action that federal agency may take A Federal agency that receives information that a contractor or a person has violated section 2102, 2103, or 2104 of this title shall consider taking one or more of the following actions, as appropriate: (A) Canceling the Federal agency procurement, if a contract has not yet been awarded. (B) Rescinding a contract with respect to which (i) the contractor or someone acting for the contractor has been convicted for an offense punishable under subsection (a); or (ii) the head of the agency that awarded the contract has determined, based on a preponderance of the evidence, that the contractor or a person acting for the contractor has engaged in conduct constituting the offense. (C) Initiating a suspension or debarment proceeding for the protection of the Federal Government in accordance with procedures in the Federal Acquisition Regulation. (D) Initiating an adverse personnel action, pursuant to the procedures in chapter 75 of title 5 or other applicable law or regulation. (2)  Amount government entitled to recover When a Federal agency rescinds a contract pursuant to paragraph (1)(B), the Federal Government is entitled to recover, in addition to any penalty prescribed by law, the amount expended under the contract. (3)  Present responsibility affected by conduct For purposes of a suspension or debarment proceeding initiated pursuant to paragraph (1)(C), engaging in conduct constituting an offense under section 2102, 2103, or 2104 of this title affects the present responsibility of a Federal Government contractor or subcontractor. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3730        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2105(a) 41:423(e)(1). Pub. L. 93400,  27(e) Pub. L. 100679,  6(a) Nov. 17, 1988 102 Stat. 4063 Pub. L. 101189, title VIII,  814(a) Nov. 29, 1989 103 Stat. 1495 Pub. L. 101510, title XIV,  1484 l Nov. 5, 1990 104 Stat. 1720 Pub. L. 10225, title VII,  705(i) Apr. 6, 1991 105 Stat. 121 Pub. L. 103355, title VIII,  8301(e) Oct. 13, 1994 108 Stat. 3397 Pub. L. 104106, title XLIII,  4304(a) Feb. 10, 1996 110 Stat. 661 2105(b) 41:423(e)(2). 2105(c) 41:423(e)(3). In subsection (a), the word violates is substituted for engages in conduct constituting a violation of to eliminate unnecessary words. In subsection (b), the words liable to the Federal Government for are substituted for subject to for consistency in the revised title and with other titles of the United States Code. In subsection (c)(1), the words has violated are substituted for has engaged in conduct constituting a violation of to eliminate unnecessary words.  2106. Reporting information believed to constitute evidence of offense  A person may not file a protest against the award or proposed award of a Federal agency procurement contract alleging a violation of section 2102, 2103, or 2104 of this title, and the Comptroller General may not consider that allegation in deciding a protest, unless the person, no later than 14 days after the person first discovered the possible violation, reported to the Federal agency responsible for the procurement the information that the person believed constitutes evidence of the offense. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3731        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2106 41:423(g). Pub. L. 93400,  27(g) Pub. L. 100679,  6(a) Nov. 17, 1988 102 Stat. 4063 Pub. L. 101189, title VIII,  814(a) Nov. 29, 1989 103 Stat. 1495 Pub. L. 101510, title XIV,  1484 l Nov. 5, 1990 104 Stat. 1720 Pub. L. 10225, title VII,  705(i) Apr. 6, 1991 105 Stat. 121 Pub. L. 103355, title VIII,  8301(e) Oct. 13, 1994 108 Stat. 3397 Pub. L. 104106, title XLIII,  4304(a) Feb. 10, 1996 110 Stat. 663  2107. Savings provisions This chapter does not (1) restrict the disclosure of information to, or its receipt by, a person or class of persons authorized, in accordance with applicable agency regulations or procedures, to receive that information; (2) restrict a contractor from disclosing its own bid or proposal information or the recipient from receiving that information; (3) restrict the disclosure or receipt of information relating to a Federal agency procurement after it has been canceled by the Federal agency before contract award unless the Federal agency plans to resume the procurement; (4) prohibit individual meetings between a Federal agency official and an offeror or potential offeror for, or a recipient of, a contract or subcontract under a Federal agency procurement, provided that unauthorized disclosure or receipt of contractor bid or proposal information or source selection information does not occur; (5) authorize the withholding of information from, nor restrict its receipt by, Congress, a committee or subcommittee of Congress, the Comptroller General, a Federal agency, or an inspector general of a Federal agency; (6) authorize the withholding of information from, nor restrict its receipt by, the Comptroller General in the course of a protest against the award or proposed award of a Federal agency procurement contract; or (7) limit the applicability of a requirement, sanction, contract penalty, or remedy established under another law or regulation. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3731        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2107 41:423(h). Pub. L. 93400,  27(h) Pub. L. 100679,  6(a) Nov. 17, 1988 102 Stat. 4063 Pub. L. 101189, title VIII,  814(a) Nov. 29, 1989 103 Stat. 1495 Pub. L. 101510, title XIV,  1484 l Nov. 5, 1990 104 Stat. 1720 Pub. L. 10225, title VII,  705(i) Apr. 6, 1991 105 Stat. 121 Pub. L. 103355, title VIII,  8301(e) Oct. 13, 1994 108 Stat. 3397 Pub. L. 104106, title XLIII,  4304(a) Feb. 10, 1996 110 Stat. 663 CHAPTER 23 MISCELLANEOUS    Sec.  2301. Use of electronic commerce in Federal procurement.  2302. Rights in technical data.  2303. Ethics safeguards related to contractor conflicts of interest.  2304. Conflict of interest standards for consultants.  2305. Authority of Director of Office of Management and Budget not affected.  2306. Openness of meetings.  2307. Comptroller Generals access to information.  2308. Modular contracting for information technology.  2309. Protection of constitutional rights of contractors.  2310. Performance-based contracts or task orders for services to be treated as contracts for the procurement of commercial items.  2311. Enhanced transparency on interagency contracting and other transactions.  2312. Contingency Contracting Corps.  2313. Database for Federal agency contract and grant officers and suspension and debarment officials.  2301. Use of electronic commerce in Federal procurement (a)  Definition For the purposes of this section, the term electronic commerce means electronic techniques for accomplishing business transactions, including electronic mail or messaging, World Wide Web technology, electronic bulletin boards, purchase cards, electronic funds transfers, and electronic data interchange. (b)  Establishment, Maintenance, and Use of Electronic Commerce Procedures and Processes The head of each executive agency, after consulting with the Administrator, shall establish, maintain, and use, to the maximum extent that is practicable and cost-effective, procedures and processes that employ electronic commerce in the conduct and administration of the procurement system of the agency. (c)  Applicable Standards In conducting electronic commerce, the head of an executive agency shall apply nationally and internationally recognized standards that broaden interoperability and ease the electronic interchange of information. (d)  Requirements of Systems, Technologies, Procedures, and Processes The head of each executive agency shall ensure that systems, technologies, procedures, and processes established pursuant to this section (1) are implemented with uniformity throughout the agency, to the extent practicable; (2) are implemented only after granting due consideration to the use or partial use, as appropriate, of existing electronic commerce and electronic data interchange systems and infrastructures such as the Federal acquisition computer network architecture known as FACNET; (3) facilitate access to Federal Government procurement opportunities, including opportunities for small business concerns, socially and economically disadvantaged small business concerns, and business concerns owned predominantly by women; and (4) ensure that any notice of agency requirements or agency solicitation for contract opportunities is provided in a form that allows convenient and universal user access through a single, Government-wide point of entry. (e)  Implementation In carrying out the requirements of this section, the Administrator shall (1) issue policies to promote, to the maximum extent practicable, uniform implementation of this section by executive agencies, with due regard for differences in program requirements among agencies that may require departures from uniform procedures and processes in appropriate cases, when warranted because of the agency mission; (2) ensure that the head of each executive agency complies with the requirements of subsection (d); and (3) consult with the heads of appropriate Federal agencies with applicable technical and functional expertise, including the Office of Information and Regulatory Affairs, the National Institute of Standards and Technology, the General Services Administration, and the Department of Defense. (f)  Inapplicability to Department of Defense In this section, the term executive agency does not include the Department of Defense. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3732 Pub. L. 114328, div. A, title VIII,  833(b)(5)(A)(ii) Dec. 23, 2016 130 Stat. 2285        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2301(a) 41:426(f). Pub. L. 93400,  30 Pub. L. 103355, title IX,  9001(a) Oct. 13, 1994 108 Stat. 3399 Pub. L. 10585, title VIII,  850(a) Nov. 18, 1997 111 Stat. 1847 Pub. L. 106398,  1 [[div. A] Oct. 30, 2000 114 Stat. 1654 2301(b) 41:426(a). 2301(c) 41:426(b). 2301(d) 41:426(c). 2301(e) 41:426(d). In this section, the text of 41:426(e) is omitted as obsolete because the last report was to be submitted not later than March 1, 2004 In subsection (c), the word executive is added for clarity and for consistency in the revised section. In subsection (e)(2), the words with respect to the agency systems, technologies, procedures, and processes established pursuant to this section are omitted as unnecessary. Editorial Notes Amendments 2016Subsec. (f). Pub. L. 114328 Executive Documents  Streamlining Procurement Through Electronic Commerce Memorandum of President of the United States, Oct. 28, 1993 Memorandum for the Heads of Executive Departments and Agencies [and] the Presidents Management Council The Federal Government spends $200 billion annually buying goods and services. Unfortunately, the red tape and burdensome paperwork of the current procurement system increases costs, produces unnecessary delays, and reduces Federal work force productivity. Moving to an electronic commerce system to simplify and streamline the purchasing process will promote customer service and cost-effectiveness. The electronic exchange of acquisition information between the private sector and the Federal Government also will increase competition by improving access to Federal contracting opportunities for the more than 300,000 vendors currently doing business with the Government, particularly small businesses, as well as many other vendors who find access to bidding opportunities difficult under the current system. For these reasons, I am committed to fundamentally altering and improving the way the Federal Government buys goods and services by ensuring that electronic commerce is implemented for appropriate Federal purchases as quickly as possible. 1. OBJECTIVES. The objectives of this electronic commerce initiative are to: (a) exchange procurement informationsuch as solicitations, offers, contracts, purchase orders, invoices, payments, and other contractual documentselectronically between the private sector and the Federal Government to the maximum extent practical; (b) provide businesses, including small, small disadvantaged, and women-owned businesses, with greater access to Federal procurement opportunities; (c) ensure that potential suppliers are provided simplified access to the Federal Governments electronic commerce system; (d) employ nationally and internationally recognized data formats that serve to broaden and ease the electronic interchange of data; and (e) use agency and industry systems and networks to enable the Government and potential suppliers to exchange information and access Federal procurement data. 2. IMPLEMENTATION. The Presidents Management Council, in coordination with the Office of Federal Procurement Policy of the Office of Management and Budget, and in consultation with appropriate Federal agencies with applicable technical and functional expertise, as necessary, shall provide overall leadership, management oversight, and policy direction to implement electronic commerce in the executive branch through the following actions: (a) by March 1994, define the architecture for the Government-wide electronic commerce acquisition system and identify executive departments or agencies responsible for developing, implementing, operating, and maintaining the Federal electronic system; (b) by September 1994, establish an initial electronic commerce capability to enable the Federal Government and private vendors to electronically exchange standardized requests for quotations, quotes, purchase orders, and notice of awards and begin Government-wide implementation; (c) by July 1995, implement a full scale Federal electronic commerce system that expands initial capabilities to include electronic payments, document interchange, and supporting databases; and (d) by January 1997, complete Government-wide implementation of electronic commerce for appropriate Federal purchases, to the maximum extent possible. This implementation schedule should be accelerated where practicable. The head of each executive department or agency shall: (a) ensure that budgetary resources are available, within approved budget levels, for electronic commerce implementation in each respective department or agency; (b) assist the Presidents Management Council in implementing the electronic commerce system as quickly as possible in accordance with the schedules established herein; and (c) designate one or more senior level employees to assist the Presidents Management Council and serve as a point of contact for the development and implementation of the Federal electronic commerce system within each respective department or agency. 3. NO PRIVATE RIGHTS CREATED. This directive is for the internal management of the executive branch and does not create any right or benefit, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person. The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.  William J. Clinton.  2302. Rights in technical data (a)  Where Defined The legitimate proprietary interest of the Federal Government and of a contractor in technical or other data shall be defined in regulations prescribed as part of the Federal Acquisition Regulation. (b)  General Extent of Regulations. (1)  Other rights not impaired Regulations prescribed under subsection (a) may not impair a right of the Federal Government or of a contractor with respect to a patent or copyright or another right in technical data otherwise established by law. (2)  Limitation on requiring data be provided to the government With respect to executive agencies subject to division C, regulations prescribed under subsection (a) shall provide that the Federal Government may not require a person that has developed a product (or process offered or to be offered for sale to the public) to provide to the Federal Government technical data relating to the design (or development or manufacture of the product or process) as a condition of procurement by the Federal Government of the product or process. This paragraph does not apply to data that may be necessary for the Federal Government to operate and maintain the product or use the process if the Federal Government obtains it as an element of performance under the contract. (c)  Technical Data Developed With Federal Funds. (1)  Use by government and agencies Except as otherwise expressly provided by Federal statute, with respect to executive agencies subject to division C, regulations prescribed under subsection (a) shall provide that (A) the Federal Government has unlimited rights in technical data developed exclusively with Federal funds if delivery of the data (i) was required as an element of performance under a contract; and (ii) is needed to ensure the competitive acquisition of supplies or services that will be required in substantial quantities in the future; and (B) the Federal Government and each agency of the Federal Government has an unrestricted, royalty-free right to use, or to have its contractors use, for governmental purposes (excluding publication outside the Federal Government) technical data developed exclusively with Federal funds. (2)  Requirements in addition to other rights of the government The requirements of paragraph (1) are in addition to and not in lieu of any other rights the Federal Government may have pursuant to law. (d)  Factors To Be Considered in Prescribing Regulations The following factors shall be considered in prescribing regulations under subsection (a): (1) Whether the item or process to which the technical data pertains was developed (A) exclusively with Federal funds; (B) exclusively at private expense; or (C) in part with Federal funds and in part at private expense. (2) The statement of congressional policy and objectives in section 200 of title 35 Public Law 97219 15 U.S.C. 638 15 U.S.C. 631 (3) The interest of the Federal Government in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture. (e)  Provisions Required in Contracts Regulations prescribed under subsection (a) shall require that a contract for property or services entered into by an executive agency contain appropriate provisions relating to technical data, including provisions (1) defining the respective rights of the Federal Government and the contractor or subcontractor (at any tier) regarding technical data to be delivered under the contract; (2) specifying technical data to be delivered under the contract and schedules for delivery; (3) establishing or referencing procedures for determining the acceptability of technical data to be delivered under the contract; (4) establishing separate contract line items for technical data to be delivered under the contract; (5) to the maximum practicable extent, identifying, in advance of delivery, technical data which is to be delivered with restrictions on the right of the Federal Government to use the data; (6) requiring the contractor to revise any technical data delivered under the contract to reflect engineering design changes made during the performance of the contract and affecting the form, fit, and function of the items specified in the contract and to deliver the revised technical data to an agency within a time specified in the contract; (7) requiring the contractor to furnish written assurance, when technical data is delivered or is made available, that the technical data is complete and accurate and satisfies the requirements of the contract concerning technical data; (8) establishing remedies to be available to the Federal Government when technical data required to be delivered or made available under the contract is found to be incomplete or inadequate or to not satisfy the requirements of the contract concerning technical data; and (9) authorizing the head of the agency to withhold payments under the contract (or exercise another remedy the head of the agency considers appropriate) during any period if the contractor does not meet the requirements of the contract pertaining to the delivery of technical data. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3733        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2302(a) 41:418a(a) (1st sentence). Pub. L. 93400,  21 Pub. L. 98577, title III,  301(a) Oct. 30, 1984 98 Stat. 3074 Pub. L. 99145, title IX,  961(d)(2) Nov. 8, 1985 99 Stat. 704 2302(b) 41:418a(a) (2d, last sentences). 2302(c) 41:418a(b). 2302(d) 41:418a(c). 2302(e) 41:418a(d). In subsection (a), the words Federal Acquisition Regulation are substituted for single system of Government-wide procurement regulations as defined in section 403(4) of this title Public Law 100679 102 Stat. 4055 Public Law 93400 88 Stat. 797 102 Stat. 4056 88 Stat. 797 Public Law 98191 97 Stat. 1326  2303. Ethics safeguards related to contractor conflicts of interest (a)  Definition In this section, the term relevant acquisition function means an acquisition function closely associated with inherently governmental functions. (b)  Policy on Personal Conflicts of Interest by Contractor Employees. (1)  Development and issuance of policy The Administrator shall develop and issue a standard policy to prevent personal conflicts of interest by contractor employees performing relevant acquisition functions (including the development, award, and administration of Federal Government contracts) for or on behalf of a Federal agency or department. (2)  Elements of policy The policy shall (A) define personal conflict of interest as it relates to contractor employees performing relevant acquisition functions; and (B) require each contractor whose employees perform relevant acquisition functions to (i) identify and prevent personal conflicts of interest for the employees; (ii) prohibit contractor employees who have access to non-public government information obtained while performing relevant acquisition functions from using the information for personal gain; (iii) report any personal conflict-of-interest violation by an employee to the applicable contracting officer or contracting officers representative as soon as it is identified; (iv) maintain effective oversight to verify compliance with personal conflict-of-interest safeguards; (v) have procedures in place to screen for potential conflicts of interest for all employees performing relevant acquisition functions; and (vi) take appropriate disciplinary action in the case of employees who fail to comply with policies established pursuant to this section. (3)  Contract clause. (A)  Contents The Administrator shall develop a personal conflicts-of-interest clause or a set of clauses for inclusion in solicitations and contracts (and task or delivery orders) for the performance of relevant acquisition functions that sets forth (i) the personal conflicts-of-interest policy developed under this subsection; and (ii) the contractors responsibilities under the policy. (B)  Effective date Subparagraph (A) shall take effect 300 days after October 14, 2008 (i) contracts entered into on or after that effective date; and (ii) task or delivery orders awarded on or after that effective date, regardless of whether the contracts pursuant to which the task or delivery orders are awarded are entered before, on, or after October 14, 2008 (4)  Applicability. (A)  Contracts in excess of the simplified acquisition threshold This subsection shall apply to any contract for an amount in excess of the simplified acquisition threshold (as defined in section 134 of this title (B)  Partial applicability If only a portion of a contract described in subparagraph (A) is for the performance of relevant acquisition functions, then this subsection applies only to that portion of the contract. (c)  Best Practices The Administrator shall, in consultation with the Director of the Office of Government Ethics, develop and maintain a repository of best practices relating to the prevention and mitigation of organizational and personal conflicts of interest in Federal contracting. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3735        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2303(a) no source. 2303(b), (c) 41:405c(a), (c). Pub. L. 110417 Oct. 14, 2008 122 Stat. 4537 In this section, the words relevant acquisition functions are substituted for acquisition functions closely associated with inherently governmental functions because of subsection (a). In subsection (b), the words Not later than 270 days after the date of the enactment of this Act are omitted because of section 6(f) of the bill. In subsection (b)(4)(A), the words Except as provided in subparagraph (B) are omitted as unnecessary. Statutory Notes and Related Subsidiaries Preventing Organizational Conflicts of Interest in Federal Acquisition Pub. L. 117324 Dec. 27, 2022 136 Stat. 4439  SECTION 1. SHORT TITLE. This Act may be cited as the Preventing Organizational Conflicts of Interest in Federal Acquisition Act. SEC. 2. PREVENTING ORGANIZATIONAL CONFLICTS OF INTEREST IN FEDERAL ACQUISITION. (a)  In General Not later than 18 months after the date of the enactment of this Act [ Dec. 27, 2022 (1) to provide and update (A) definitions related to specific types of organizational conflicts of interest, including unequal access to information, impaired objectivity, and biased ground rules; (B) definitions, guidance, and illustrative examples related to relationships of contractors with public, private, domestic, and foreign entities that may cause contract support to be subject to potential organizational conflicts of interest, including undue influence; and (C) illustrative examples of situations related to the potential organizational conflicts of interest identified under this paragraph, including an example of the awarding by a Federal regulatory agency of a contract for consulting services to a contractor if employees of the contractor performing work under such contract are permitted by the contractor to simultaneously perform work under a contract for a private sector client under the regulatory purview of such agency; (2) to provide executive agencies with solicitation provisions and contract clauses to avoid or mitigate organizational conflicts of interest, for agency use as needed, that require contractors to disclose information relevant to potential organizational conflicts of interest and limit future contracting with respect to potential conflicts of interest with the work to be performed under awarded contracts; (3) to allow executive agencies to tailor such solicitation provisions and contract clauses as necessary to address risks associated with conflicts of interest and other considerations that may be unique to the executive agency; (4) to require executive agencies (A) to establish or update as needed agency conflict of interest procedures to implement the revisions to the Federal Acquisition Regulation made under this section; and (B) to periodically assess and update such procedures as needed to address agency-specific conflict of interest issues; and (5) to update the procedures set forth in section 9.506 of the Federal Acquisition Regulation to permit contracting officers to take into consideration professional standards and procedures to prevent organizational conflicts of interest to which an offeror or contractor is subject. (b)  Executive Agency Defined In this section, the term executive agency has the meaning given the term in section 133 of title 41 Deadline for Issuance of Standard Policy Pub. L. 111350,  6(f)(1) Jan. 4, 2011 124 Stat. 3854 The requirement in section 2303(b)(1) of title 41 October 14, 2008 Review of Federal Acquisition Regulation Relating to Conflicts of Interest Pub. L. 110417 Oct. 14, 2008 122 Stat. 4539  (1)  Review Not later than 12 months after the date of the enactment of this Act [ Oct. 14, 2008 (A) identify contracting methods, types and services that raise heightened concerns for potential personal and organizational conflicts of interest; and (B) determine whether revisions to the Federal Acquisition Regulation are necessary to (i) address personal conflicts of interest by contractor employees with respect to functions other than those described in subsection (a) [now 41 U.S.C. 2303(b) (ii) achieve sufficiently rigorous, comprehensive, and uniform government-wide policies to prevent and mitigate organizational conflicts of interest in Federal contracting. (2)  Regulatory revisions If the Administrator determines pursuant to the review under paragraph (1)(B) that revisions to the Federal Acquisition Regulation are necessary, the Administrator shall work with the Federal Acquisition Regulatory Council to prescribe appropriate revisions to the regulations, including the development of appropriate contract clauses. (3)  Report Not later than March 1, 2010  2304. Conflict of interest standards for consultants (a)  Content of Regulations The Administrator shall prescribe under this division Government-wide regulations that set forth (1) conflict of interest standards for persons who provide consulting services described in subsection (b); and (2) procedures, including registration, certification, and enforcement requirements as may be appropriate, to promote compliance with the standards. (b)  Services Subject to Regulations Regulations required by subsection (a) apply to (1) advisory and assistance services provided to the Federal Government to the extent necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States; (2) services related to support of the preparation or submission of bids and proposals for Federal contracts to the extent that inclusion of the services in the regulations is necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States; and (3) other services related to Federal contracts as specified in the regulations prescribed under subsection (a) to the extent necessary to identify and evaluate the potential for conflicts of interest that could be prejudicial to the interests of the United States. (c)  Intelligence Activities Exemption. (1)  Activities that may be exempt Intelligence activities as defined in section 3.4(e) of Executive Order No. 12333 or a comparable definitional section in any successor order may be exempt from the regulations required by subsection (a). (2)  Report The Director of National Intelligence shall report to the Intelligence and Appropriations Committees of Congress each January 1, delineating the activities and organizations that have been exempted under paragraph (1). (d)  Presidential Determination Before the regulations required by subsection (a) are prescribed, the President shall determine if prescribing the regulations will have a significantly adverse effect on the accomplishment of the mission of the Defense Department or another Federal agency. If the President determines that the regulations will have such an adverse effect, the President shall so report to the appropriate committees of the Senate and the House of Representatives, stating in full the reasons for the determination. If such a report is submitted, the requirement for the regulations shall be null and void. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3736        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2304(a) 41:405b(a). Pub. L. 100463, title VIII,  8141 Oct. 1, 1988 102 Stat. 227047 2304(b) 41:405b(b). 2304(c) 41:405b(d). 2304(d) 41:405b(e). In this section, the text of 41:405b(c) is omitted as obsolete. In subsection (a), before paragraph (1), the words The Administrator shall prescribe under this division Government-wide regulations are substituted for Not later than 90 days after October 1, 1988 41 U.S.C. 401 In subsection (b), before paragraph (1), the words the following types of consulting services are omitted as unnecessary. In subsection (c)(2), the words Director of National Intelligence are substituted for Director of Central Intelligence because of section 1081(a) of the Intelligence Reform and Terrorism Prevention Act of 2004 ( Public Law 108458 50 U.S.C. 401 January 1, 1990 Editorial Notes  References in Text Executive Order 12333, referred to in subsec. (c)(1), is set out as a note under section 3001 of Title 50  2305. Authority of Director of Office of Management and Budget not affected  This division does not limit the authorities and responsibilities of the Director of the Office of Management and Budget in effect on December 1, 1983 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3737        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2305 41:405(h)(2). Pub. L. 93400,  6(h)(2) Aug. 30, 1974 88 Stat. 797 Pub. L. 9683,  4 Oct. 10, 1979 93 Stat. 649 Pub. L. 98191,  5 Dec. 1, 1983 97 Stat. 1328 The words in effect on December 1, 1983  2306. Openness of meetings The Administrator by regulation shall require that (1) formal meetings of the Office of Federal Procurement Policy, as designated by the Administrator, for developing procurement policies and regulations be open to the public; and (2) public notice of each meeting be given not less than 10 days prior to the meeting. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3737        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2306 41:412(b). Pub. L. 93400,  14(b) Aug. 30, 1974 88 Stat. 800 Pub. L. 9683,  9 Oct. 10, 1979 93 Stat. 652  2307. Comptroller Generals access to information  The Administrator and personnel in the Office of Federal Procurement Policy shall furnish information the Comptroller General may require to discharge the responsibilities of the Comptroller General. For this purpose, the Comptroller General or representatives of the Comptroller General shall have access to all books, documents, papers, and records of the Office of Federal Procurement Policy. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3737        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2307 41:412(a). Pub. L. 93400,  14(a) Aug. 30, 1974 88 Stat. 800 Senate Revision Amendment In text, representatives of the Comptroller General substituted for his representatives by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010).  2308. Modular contracting for information technology (a)  Use To the maximum extent practicable, the head of an executive agency should use modular contracting for an acquisition of a major system of information technology. (b)  Modular Contracting Described Under modular contracting, an executive agencys need for a system is satisfied in successive acquisitions of interoperable increments. Each increment complies with common or commercially accepted standards applicable to information technology so that the increments are compatible with other increments of information technology comprising the system. (c)  Provisions in Federal Acquisition Regulation The Federal Acquisition Regulation shall provide that (1) under the modular contracting process, an acquisition of a major system of information technology may be divided into several smaller acquisition increments that (A) are easier to manage individually than would be one comprehensive acquisition; (B) address complex information technology objectives incrementally in order to enhance the likelihood of achieving workable solutions for attaining those objectives; (C) provide for delivery, implementation, and testing of workable systems or solutions in discrete increments, each of which comprises a system or solution that is not dependent on a subsequent increment in order to perform its principal functions; and (D) provide an opportunity for subsequent increments of the acquisition to take advantage of any evolution in technology or needs that occurs during conduct of the earlier increments; (2) to the maximum extent practicable, a contract for an increment of an information technology acquisition should be awarded within 180 days after the solicitation is issued and, if the contract for that increment cannot be awarded within that period, the increment should be considered for cancellation; and (3) the information technology provided for in a contract for acquisition of information technology should be delivered within 18 months after the solicitation resulting in award of the contract was issued. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3737        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2308 41:434. Pub. L. 93400,  38 Pub. L. 104106, title LII,  5202(a) Feb. 10, 1996 110 Stat. 690 Pub. L. 104201, title X,  1074(d)(1) Sept. 23, 1996 110 Stat. 2660  2309. Protection of constitutional rights of contractors (a)  Prohibition on Requiring Waiver of Rights A contractor may not be required, as a condition for entering into a contract with the Federal Government, to waive a right under the Constitution for a purpose relating to the Chemical Weapons Convention Implementation Act of 1998 ( 22 U.S.C. 6701 22 U.S.C. 6701 (b)  Permissible Contract Clauses Subsection (a) does not prohibit an executive agency from including in a contract a clause that requires the contractor to permit inspections to ensure that the contractor is performing the contract in accordance with the provisions of the contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3738        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2309 41:436. Pub. L. 93400,  40 Pub. L. 105277, title III,  308(a) Oct. 21, 1998 112 Stat. 2681879 Pub. L. 108136, title XIV,  1431(d)(2) Nov. 24, 2003 117 Stat. 1672 In subsection (a), the reference is to the Chemical Weapons Convention Implementation Act of 1998 rather than the Chemical Weapons Convention Implementation Act of 1997 to correct an error in the source provision. Editorial Notes  References in Text The Chemical Weapons Convention Implementation Act of 1998, referred to in subsec. (a), is Pub. L. 105277, div. I Oct. 21, 1998 112 Stat. 2681856 section 6701 of Title 22  2310. Performance-based contracts or task orders for services to be treated as contracts for the procurement of commercial items (a)  Criteria A performance-based contract for the procurement of services entered into by an executive agency or a performance-based task order for services issued by an executive agency may be treated as a contract for the procurement of commercial items if (1) the value of the contract or task order is estimated not to exceed $25,000,000; (2) the contract or task order sets forth specifically each task to be performed and, for each task (A) defines the task in measurable, mission-related terms; (B) identifies the specific end products or output to be achieved; and (C) contains firm, fixed prices for specific tasks to be performed or outcomes to be achieved; and (3) the source of the services provides similar services to the general public under terms and conditions similar to those offered to the Federal Government. (b)  Regulations Regulations implementing this section shall require agencies to collect and maintain reliable data sufficient to identify the contracts or task orders treated as contracts for commercial items using the authority of this section. The data may be collected using the Federal Procurement Data System or other reporting mechanism. (c)  Report Not later than 2 years after November 24, 2003 (d)  Expiration The authority under this section expires 10 years after November 24, 2003 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3738        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2310 41:437. Pub. L. 93400,  41 Pub. L. 108136, title XIV,  1431(a) Nov. 24, 2003 117 Stat. 1671 In subsection (c), the words Committees on Homeland Security and Governmental Affairs are substituted for Committees on Governmental Affairs on authority of Senate Resolution No. 445 (108th Congress, October 9, 2004 January 5, 2007 Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023  2311. Enhanced transparency on interagency contracting and other transactions The Director of the Office of Management and Budget shall direct appropriate revisions to the Federal Procurement Data System or any successor system to facilitate the collection of complete, timely, and reliable data on interagency contracting actions and on transactions other than contracts, grants, and cooperative agreements issued pursuant to section 4021 of title 10 (1) interagency contracting actions, including data at the task or delivery-order level; and (2) other transactions, including the initial award and any subsequent modifications awarded or orders issued (other than transactions that are reported through the Federal Assistance Awards Data System). ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3739 Pub. L. 11781, div. A, title XVII,  1702(h)(11) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2311 41:405 note. Pub. L. 110417 Oct. 14, 2008 122 Stat. 4558 In the first sentence, the words Not later than one year after the date of enactment of this Act are omitted because of section 6(f) of the bill. Editorial Notes Amendments 2021 Pub. L. 11781 Statutory Notes and Related Subsidiaries Deadline for Revisions in Federal Procurement Data System or Successor System Pub. L. 111350,  6(f)(2) Jan. 4, 2011 124 Stat. 3855 The requirement in section 2311 of title 41 October 14, 2008  2312. Contingency Contracting Corps (a)  Definition In this section, the term Corps means the Contingency Contracting Corps established in subsection (b). (b)  Establishment The Administrator of General Services, pursuant to policies established by the Office of Management and Budget, and in consultation with the Secretary of Defense and the Secretary of Homeland Security, shall establish a Government-wide Contingency Contracting Corps. (c)  Function The members of the Corps shall be available for deployment in responding to an emergency or major disaster, or a contingency operation, both within or outside the continental United States. (d)  Applicability The authorities provided in this section apply with respect to any procurement of property or services by or for an executive agency that, as determined by the head of the executive agency, are to be used (1) in support of a contingency operation as defined in section 101(a)(13) of title 10 (2) to respond to an emergency or major disaster as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5122 (e)  Membership Membership in the Corps shall be voluntary and open to all Federal employees and members of the Armed Forces who are members of the Federal acquisition workforce. (f)  Education and Training The Administrator of General Services may, in consultation with the Director of the Federal Acquisition Institute and the Chief Acquisition Officers Council, establish educational and training requirements for members of the Corps. Education and training carried out pursuant to the requirements shall be paid for from funds available in the acquisition workforce training fund established pursuant to section 1703(i) of this title (g)  Salary The salary for a member of the Corps shall be paid (1) in the case of a member of the Armed Forces, out of funds available to the Armed Force concerned; and (2) in the case of a Federal employee, out of funds available to the employing agency. (h)  Authority to Deploy the Corps. (1)  Director of the Office of Management and Budget The Director of the Office of Management and Budget shall have the authority, upon request by an executive agency, to determine when members of the Corps shall be deployed, with the concurrence of the head of the agency or agencies employing the members to be deployed. (2)  Secretary of Defense Nothing in this section shall preclude the Secretary of Defense or the Secretarys designee from deploying members of the Armed Forces or civilian personnel of the Department of Defense in support of a contingency operation as defined in section 101(a)(13) of title 10 (i)  Annual Report. (1)  In general The Administrator of General Services shall provide to the Committee on Homeland Security and Governmental Affairs and the Committee on Armed Services of the Senate and the Committee on Oversight and Government Reform and the Committee on Armed Services of the House of Representatives an annual report on the status of the Corps as of September 30 of each fiscal year. (2)  Content Each report under paragraph (1) shall include the number of members of the Corps, the total cost of operating the program, the number of deployments of members of the program, and the performance of members of the program in deployment. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3739        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2312 (except subsection (a)) 41:440. Pub. L. 93400,  44 Pub. L. 110417 Oct. 14, 2008 122 Stat. 4554 2312(a) no source. Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023  2313. Database for Federal agency contract and grant officers and suspension and debarment officials (a)  In General Subject to the authority, direction, and control of the Director of the Office of Management and Budget, the Administrator of General Services shall establish and maintain a database of information regarding the integrity and performance of certain persons awarded Federal agency contracts and grants for use by Federal agency officials having authority over contracts and grants. (b)  Persons Covered The database shall cover the following: (1) Any person awarded a Federal agency contract or grant in excess of $500,000, if any information described in subsection (c) exists with respect to the person. (2) Any person awarded such other category or categories of Federal agency contract as the Federal Acquisition Regulation may provide, if any information described in subsection (c) exists with respect to the person. (c)  Information Included With respect to a covered person, the database shall include information (in the form of a brief description) for the most recent 5-year period regarding the following: (1) Each civil or criminal proceeding, or any administrative proceeding, in connection with the award or performance of a contract or grant with the Federal Government with respect to the person during the period to the extent that the proceeding results in the following dispositions: (A) In a criminal proceeding, a conviction. (B) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more. (C) In an administrative proceeding, a finding of fault and liability that results in (i) the payment of a monetary fine or penalty of $5,000 or more; or (ii) the payment of a reimbursement, restitution, or damages in excess of $100,000. (D) To the maximum extent practicable and consistent with applicable laws and regulations, in a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the person if the proceeding could have led to any of the outcomes specified in subparagraph (A), (B), or (C). (E) In an administrative proceeding (i) a final determination of contractor fault by the Secretary of Defense pursuant to section 823(d) of the National Defense Authorization Act for Fiscal Year 2010 ( 10 U.S.C. 2302 Public Law 11184 (ii) a substantiated allegation, pursuant to section 1704(b) of the National Defense Authorization Act for Fiscal Year 2013, that the contractor, a subcontractor, or an agent of the contractor or subcontractor engaged in any of the activities described in section 106(g) of the Trafficking Victims Protection Act of 2000 ( 22 U.S.C. 7104(g) (2) Each Federal contract and grant awarded to the person that was terminated in the period due to default. (3) Each Federal suspension and debarment of the person. (4) Each Federal administrative agreement entered into by the person and the Federal Government in the period to resolve a suspension or debarment proceeding. (5) Each final finding by a Federal official in the period that the person has been determined not to be a responsible source under paragraph (3) or (4) of section 113 of this title (6) Other information that shall be provided for purposes of this section in the Federal Acquisition Regulation. (7) To the maximum extent practicable, information similar to the information covered by paragraphs (1) to (4) in connection with the award or performance of a contract or grant with a State government. (8) Whether the person is included on any of the following lists maintained by the Office of Foreign Assets Control of the Department of the Treasury: (A) The specially designated nationals and blocked persons list (commonly known as the SDN list). (B) The sectoral sanctions identification list. (C) The foreign sanctions evaders list. (D) The list of persons sanctioned under the Iran Sanctions Act of 1996 ( Public Law 104172 50 U.S.C. 1701 (E) The list of foreign financial institutions subject to part 561 of title 31, Code of Federal Regulations. (d)  Requirements Relating to Database Information. (1)  Direct input and update The Administrator of General Services shall design and maintain the database in a manner that allows the appropriate Federal agency officials to directly input and update information in the database relating to actions that the officials have taken with regard to contractors or grant recipients. (2)  Timeliness and accuracy The Administrator of General Services shall develop policies to require (A) the timely and accurate input of information into the database; (B) the timely notification of any covered person when information relevant to the person is entered into the database; and (C) opportunities for any covered person to submit comments pertaining to information about the person for inclusion in the database. (3)  Information on corporations The information in the database on a person that is a corporation shall, to the extent practicable, include information on any parent, subsidiary, or successor entities to the corporation, and an identification of any beneficial owner of such corporation, in a manner designed to give the acquisition officials using the database a comprehensive understanding of the performance and integrity of the corporation in carrying out Federal contracts and grants. (4)  Definitions In this subsection: (A)  Beneficial ownership The term beneficial ownership has the meaning given under section 847 of the National Defense Authorization Act for Fiscal Year 2020 ( Public Law 11692 133 Stat. 1505 10 U.S.C. 2509 (B)  Corporation The term corporation means any corporation, company, limited liability company, limited partnership, business trust, business association, or other similar entity. (e)  Use of Database. (1)  Availability to government officials The Administrator of General Services shall ensure that the information in the database is available to appropriate acquisition officials of Federal agencies, other government officials as the Administrator of General Services determines appropriate, and, on request, the Chairman and Ranking Member of the committees of Congress having jurisdiction. (2)  Review and assessment of data. (A)  In general Before awarding a contract or grant in excess of the simplified acquisition threshold under section 134 of this title (B)  Documentation in contract file The contract file for each contract of a Federal agency in excess of the simplified acquisition threshold shall document the manner in which the material in the database was considered in any responsibility determination or past performance evaluation. (f)  Disclosure in Applications The Federal Acquisition Regulation shall require that persons with Federal agency contracts and grants valued in total greater than $10,000,000 shall (1) submit to the Administrator of General Services, in a manner determined appropriate by the Administrator of General Services, the information subject to inclusion in the database as listed in subsection (c) current as of the date of submittal of the information under this subsection; and (2) update the information submitted under paragraph (1) on a semiannual basis. (g)  Rulemaking The Administrator of General Services shall prescribe regulations that may be necessary to carry out this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3740 Pub. L. 111212, title III,  3010 July 29, 2010 124 Stat. 2340 Pub. L. 111383, div. A, title VIII,  834(d) Jan. 7, 2011 124 Stat. 4279 Pub. L. 112239, div. A, title VIII,  852 Jan. 2, 2013 126 Stat. 1856 Pub. L. 113291, div. A, title XII,  1270 Dec. 19, 2014 128 Stat. 3587 Pub. L. 116283, div. A, title VIII,  885 Jan. 1, 2021 134 Stat. 3791  Amendments Not Shown in Text This section was derived from section 417b of former Title 41, Public Contracts, which was amended by Pub. L. 111212, title III,  3010 July 29, 2010 124 Stat. 2340 Pub. L. 111383, div. A, title VIII,  834(d) Jan. 7, 2011 124 Stat. 4279 Pub. L. 111350 Jan. 4, 2011 124 Stat. 3677 section 6(a) of Pub. L. 111350 section 101 of this title (E) In an administrative proceeding, a final determination of contractor fault by the Secretary of Defense pursuant to section 823(d) of the National Defense Authorization Act for Fiscal Year 2010 ( 10 U.S.C. 2302       Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  2313 41:417b. Pub. L. 110417 Oct. 14, 2008 122 Stat. 4555 In subsection (a), the words not later than one year after the date of the enactment of this Act are omitted because of section 6(f) of the bill. In subsection (c)(7), the word practicable is substituted for practical to correct an error in the law. In subsection (f), the words Not later than one year after the date of the enactment of this Act are omitted because of section 6(f) of the bill. The words shall require are substituted for shall be amended to require to reflect the permanence of the provision. In subsection (f)(2), the words the information submitted under paragraph (1) are substituted for such information for clarity. Editorial Notes  References in Text Section 1704(b) of the National Defense Authorization Act for Fiscal Year 2013, referred to in subsec. (c)(1)(E)(ii), is section 1704(b) of Pub. L. 112239 section 7104b(b) of Title 22 Amendments 2021Subsec. (d)(3). Pub. L. 116283,  885(1) Subsec. (d)(4). Pub. L. 116283,  885(2) 2014Subsec. (c)(8). Pub. L. 113291 2013Subsec. (c)(1)(E). Pub. L. 112239,  1704(d)(2) Pub. L. 111383,  834(d) 10 U.S.C. 2302 Subsec. (d)(3). Pub. L. 112239,  852 Statutory Notes and Related Subsidiaries Deadline for Establishing Database Pub. L. 111350,  6(f)(3) Jan. 4, 2011 124 Stat. 3855 The requirement in section 2313(a) of title 41 October 14, 2008 Deadline for Amending Federal Acquisition Regulation Pub. L. 111350,  6(f)(4) Jan. 4, 2011 124 Stat. 3855 The Federal Acquisition Regulation shall be amended to meet the requirements of sections 2313(f), 3302(b) and (d), 4710(b), and 4711(b) of title 41, United States Code, not later than one year after October 14, 2008 Division C Procurement   Definitions For additional definitions of terms used in this division, with certain exceptions, see section 102 of Title 40 CHAPTER 31 GENERAL    Sec.  3101. Applicability.  3102. Delegation and assignment of powers, functions, and responsibilities.  3103. Acquisition programs.  3104. Small business concerns.  3105. New contracts and grants and merit-based selection procedures.  3106. Erection, repair, or furnishing of public buildings and improvements not authorized, and certain contracts not permitted, by this division.  Statutory Notes and Related Subsidiaries Cost-Effectiveness Analysis of Equipment Rental Pub. L. 115254, div. B, title V,  555 Oct. 5, 2018 132 Stat. 3381 Pub. L. 11781, div. A, title XVII,  1702(i)(1) Dec. 27, 2021 135 Stat. 2159  (a)  Agency Analysis of Equipment Acquisition. (1)  In general Except as provided for under subsection (d), the head of each executive agency shall acquire equipment using the method of acquisition most advantageous to the Federal Government based on a case-by-case analysis of comparative costs and other factors, including those factors listed in section 7.401 of the Federal Acquisition Regulation. (2)  Methods of acquisition The methods of acquisition to be compared in the analysis under paragraph (1) shall include, at a minimum, purchase, short-term rental or lease, long-term rental or lease, interagency acquisition, and acquisition agreements with a State or a local government as described in subsection (c). (3)  Amendment of federal acquisition regulation Not later than 180 days after the date of the enactment of this Act [ Oct. 5, 2018 (4)  Rule of construction Nothing in this subsection shall be construed to affect the requirements of chapter 37 of title 41, United States Code, sections 3206 through 3208 and sections 3301 through 3309 of title 10, United States Code, or section 1535 of title 31 (b)  Date of Implementation The analysis described in subsection (a) shall be applied to contracts for the acquisition of equipment entered into on or after the date that the Federal Acquisition Regulation is amended pursuant to paragraph (3) of such subsection. (c)  Acquisition Agreements With States or Local Governments. (1)  In general Notwithstanding any other provision of law, including chapter 37 of title 41, United States Code, the Small Business Act ( 15 U.S.C. 631 (2)  Terms and conditions Any agreement under paragraph (1) shall contain such terms and conditions as the head of the agency deems necessary or appropriate to protect the interests of the United States. (d)  Exceptions The analysis otherwise required under subsection (a) is not required (1) when the President has issued an emergency declaration or a major disaster declaration pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act ( 42 U.S.C. 5121 (2) in other emergency situations if the agency head makes a determination that obtaining such equipment is necessary in order to protect human life or property; or (3) when otherwise authorized by law. (e)  Study of Agency Analyses Not later than 2 years after the date of the enactment of this Act, the Comptroller General of the United States shall submit to the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate a comprehensive report on the decisions made by the executive agencies with the highest levels of acquisition spending, and a sample of executive agencies with lower levels of acquisition spending, to acquire high-value equipment by lease, rental, or purchase pursuant to subpart 7.4 of the Federal Acquisition Regulation. (f)  Definitions In this section: (1)  Executive agency The term executive agency has the meaning given that term in section 102 of title 40 (2)  Interagency acquisition The term interagency acquisition has the meaning given that term in section 2.101 of the Federal Acquisition Regulation. (3)  State The term State has the meaning given the term in section 6501 of title 31 (4)  Local government The term local government means any unit of local government within a State, including a county, municipality, city, borough, town, township, parish, local public authority, school district, special district, intrastate district, council of governments, or regional or interstate government entity, and any agency or instrumentality of a local government. Uniform Contract Writing System Requirements Pub. L. 112239, div. A, title VIII,  862 Jan. 2, 2013 126 Stat. 1859  (a)  Uniform Standards and Controls Required Not later than 180 days after the date of the enactment of this Act [ Jan. 2, 2013 (1) establish uniform data standards, internal control requirements, independent verification and validation requirements, and business process rules for processing procurement requests, contracts, receipts, and invoices by the Department of Defense or other executive agencies, as applicable; (2) establish and maintain one or more approved electronic contract writing systems that conform with the standards, requirements, and rules established pursuant to paragraph (1); and (3) require the use of electronic contract writing systems approved in accordance with paragraph (2) for all contracts entered into by the Department of Defense or other executive agencies, as applicable. (b)  Covered Officials The officials specified in this subsection are the following: (1) The Secretary of Defense, with respect to the Department of Defense and the military departments. (2) The Administrator for Federal Procurement Policy, with respect to the executive agencies other than the Department of Defense and the military departments. (c)  Electronic Writing Systems for Department of State and USAID Notwithstanding subsection (b)(2), the Secretary of State and the Administrator of the United States Agency for International Development may meet the requirements of subsection (a)(2) with respect to approved electronic contract writing systems for the Department of State and the United States Agency for International Development, respectively, if the Secretary and the Administrator, as the case may be, demonstrate to the Administrator for Federal Procurement Policy that prior investment of resources in existing contract writing systems will result in the most cost effective and efficient means to satisfy such requirements. (d)  Phase-in of Implementation of Requirement for Approved Systems The officials specified in subsection (b) may phase in the implementation of the requirement to use approved electronic contract writing systems in accordance with subsection (a)(3) over a period of up to five years beginning with the date of the enactment of this Act [ Jan. 2, 2013 (e)  Reports Not later than 180 days after the date of the enactment of this Act [ Jan. 2, 2013 (1) describe the standards, requirements, and rules established pursuant to subsection (a)(1); (2) identify the electronic contract writing systems approved pursuant to subsection (a)(2) and, if multiple systems are approved, explain why the use of such multiple systems is the most efficient and effective approach to meet the contract writing needs of the Federal Government; and (3) provide the schedule for phasing in the use of approved electronic contract writing systems in accordance with subsections (a)(3) and (d). (f)  Definitions In this section: (1) The term appropriate committees of Congress means (A) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Homeland Security and Governmental Affairs, and the Committee on Appropriations of the Senate; and (B) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability], and the Committee on Appropriations of the House of Representatives. (2) The term executive agency has the meaning given that term in section 133 of title 41  3101. Applicability (a)  In General An executive agency shall make purchases and contracts for property and services in accordance with this division and implementing regulations of the Administrator of General Services. (b)  Simplified Acquisition Threshold and Procedures. (1)  Simplified acquisition threshold. (A)  Definition For purposes of an acquisition by an executive agency, the simplified acquisition threshold is as specified in section 134 of this title (B)  Inapplicable laws A law properly listed in the Federal Acquisition Regulation pursuant to section 1905 of this title (2)  Simplified acquisition procedures Simplified acquisition procedures contained in the Federal Acquisition Regulation pursuant to section 1901 of this title (c)  Exceptions. (1)  In general This division does not apply (A) to the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration; or (B) except as provided in paragraph (2), when this division is made inapplicable pursuant to law. (2)  Applicability of certain laws related to advertising, opening of bids, and length of contract Sections 6101, 6103, and 6304 of this title do not apply to the procurement of property or services made by an executive agency pursuant to this division. However, when this division is made inapplicable by any law, sections 6101 and 6103 of this title apply in the absence of authority conferred by statute to procure without advertising or without regard to section 6101 of this title section 6101 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3742        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3101(a) 41:252(a) (words before 1st semicolon). June 30, 1949, ch. 288 63 Stat. 393 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 85800,  1 Aug. 28, 1958 72 Stat. 966 Pub. L. 89343,  1 Nov. 8, 1965 79 Stat. 1303 3101(b)(1) 41:252a. June 30, 1949, ch. 288 Pub. L. 103355, title IV Oct. 13, 1994 108 Stat. 3338 3101(b)(2) 41:252b. June 30, 1949, ch. 288 Pub. L. 103355, title IV,  4203(b) Oct. 13, 1994 108 Stat. 3346 3101(c)(1) 41:252(a) (words after 1st semicolon and before but when). 3101(c)(2) 41:252(a) (words after other law).  41:260. June 30, 1949, ch. 288 63 Stat. 397 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 85800,  6 Aug. 28, 1958 72 Stat. 967 Pub. L. 89343,  5 Nov. 8, 1965 79 Stat. 1303 Pub. L. 98369, div. B, title VII,  2714(a)(6) July 18, 1984 98 Stat. 1185 In subsection (c)(1)(B), the words except as provided in paragraph (2) are added for clarity. The words  section 113(e) of title 40 Executive Documents  Ex. Ord. No. 13005. Empowerment Contracting Ex. Ord. No. 13005, May 21, 1996 In order to promote economy and efficiency in Federal procurement, it is necessary to secure broad-based competition for Federal contracts. This broad competition is best achieved where there is an expansive pool of potential contractors capable of producing quality goods and services at competitive prices. A great and largely untapped opportunity for expanding the pool of such contractors can be found in this Nations economically distressed communities. Fostering growth of Federal contractors in economically distressed communities and ensuring that those contractors become viable businesses for the long term will promote economy and efficiency in Federal procurement and help to empower those communities. Fostering growth of long-term viable contractors will be promoted by offering appropriate incentives to qualified businesses. Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States, including section 486(a) [now 121(a)] of title 40, United States Code, and section 301 of title 3 Section Policy Sec Empowerment Contracting Program Sec Monitoring and Evaluation (a) monitor the implementation and operation of the policies and procedures developed in accordance with this order; (b) develop a process to ensure the proper administration of the program and to reduce the potential for fraud by the intended beneficiaries of the program; (c) develop principles and a process to evaluate the effectiveness of the policies and procedures developed in accordance with this order; and (d) by December 1 of each year, issue a report to the President on the status and effectiveness of the program. Sec Implementation Guidelines (a) issue rules, regulations, and guidelines necessary to implement this order, including a requirement for the periodic review of the eligibility of qualified businesses and distressed areas; (b) draft all rules, regulations, and guidelines necessary to implement this order within 90 days of the date of this order; and (c) ensure that all policies and procedures and all rules, regulations, and guidelines adopted and implemented in accordance with this order minimize the administrative burden on affected agencies and the procurement process. Sec Definitions (a) Agency means any authority of the United States that is an agency under 44 U.S.C. 3502(1) 44 U.S.C. 3502(10) (b) Area of general economic distress shall be defined, for all urban and rural communities, as any census tract that has a poverty rate of at least 20 percent or any designated Federal Empowerment Zone, Supplemental Empowerment Zone, Enhanced Enterprise Community, or Enterprise Community. In addition, the Secretary may designate as an area of general economic distress any additional rural or Indian reservation area after considering the following factors: (1) Unemployment rate; (2) Degree of poverty; (3) Extent of outmigration; and (4) Rate of business formation and rate of business growth. (c) Qualified large business means a large for-profit or not-for-profit trade or business that (1) employs a significant number of residents from the area of general economic distress; and (2) either has a significant physical presence in the area of general economic distress or has a direct impact on generating significant economic activity in the area of general economic distress. (d) Qualified small business means a small for-profit or not-for-profit trade or business that (1) employs a significant number of residents from the area of general economic distress; (2) has a significant physical presence in the area of general economic distress; or (3) has a direct impact on generating significant economic activity in the area of general economic distress. (e) Secretary means the Secretary of Commerce. Sec Agency Authority Sec Judicial Review  William J. Clinton.  Ex. Ord. No. 13627. Strengthening Protections Against Trafficking in Persons in Federal Contracts Ex. Ord. No. 13627, Sept. 25, 2012 By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act ( 40 U.S.C. 101 Public Law 106386 Section Policy 22 U.S.C. 7102(8) The United States has long had a zero-tolerance policy regarding Government employees and contractor personnel engaging in any form of this criminal behavior. As the largest single purchaser of goods and services in the world, the United States Government bears a responsibility to ensure that taxpayer dollars do not contribute to trafficking in persons. By providing our Government workforce with additional tools and training to apply and enforce existing policy, and by providing additional clarity to Government contractors and subcontractors on the steps necessary to fully comply with that policy, this order will help to protect vulnerable individuals as contractors and subcontractors perform vital services and manufacture the goods procured by the United States. In addition, the improved safeguards provided by this order to strengthen compliance with anti-trafficking laws will promote economy and efficiency in Government procurement. These safeguards, which have been largely modeled on successful practices in the private sector, will increase stability, productivity, and certainty in Federal contracting by avoiding the disruption and disarray caused by the use of trafficked labor and resulting investigative and enforcement actions. Sec Anti-Trafficking Provisions (1) strengthen the efficacy of the Governments zero-tolerance policy on trafficking in persons by Federal contractors and subcontractors in solicitations, contracts, and subcontracts for supplies or services (including construction and commercial items), by: (A) expressly prohibiting Federal contractors, contractor employees, subcontractors, and subcontractor employees from engaging in any of the following types of trafficking-related activities: (i) using misleading or fraudulent recruitment practices during the recruitment of employees, such as failing to disclose basic information or making material misrepresentations regarding the key terms and conditions of employment, including wages and fringe benefits, the location of work, living conditions and housing (if employer provided or arranged), any significant costs to be charged to the employee, and, if applicable, the hazardous nature of the work; (ii) charging employees recruitment fees; (iii) destroying, concealing, confiscating, or otherwise denying access by an employee to the employees identity documents, such as passports or drivers licenses; and (iv) for portions of contracts and subcontracts: (I) performed outside the United States, failing to pay return transportation costs upon the end of employment, for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working on a U.S. Government contract or subcontract; (II) not covered by subsection (a)(1)(A)(iv)(I) of this section, failing to pay return transportation costs upon the end of employment, for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working on a U.S. Government contract or subcontract, if the payment of such costs is required under existing temporary worker programs or pursuant to a written agreement with the employee; provided, however (III) that the requirements of subsections (a)(1)(A)(iv)(I) and (II) shall not apply to: (aa) an employee who is legally permitted to remain in the country of employment and who chooses to do so; or (bb) an employee who is a victim of trafficking and is seeking victim services or legal redress in the country of employment, or an employee who is a witness in a trafficking-related enforcement action; (v) other specific activities that the FAR Council identifies as directly supporting or promoting trafficking in persons, the procurement of commercial sex acts, or the use of forced labor in the performance of the contract or subcontract; (B) requiring contractors and their subcontractors, by contract clause, to agree to cooperate fully in providing reasonable access to allow contracting agencies and other responsible enforcement agencies to conduct audits, investigations, or other actions to ascertain compliance with the TVPA, this order, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor; and (C) requiring contracting officers to notify, in accordance with agency procedures, the agencys Inspector General, the agency official responsible for initiating suspension or debarment actions, and law enforcement, if appropriate, if they become aware of any activities that would justify termination under section 106(g) of the TVPA, 22 U.S.C. 7104(g) (2) except as provided in subsection (a)(3) of this section, ensure that provisions in solicitations and clauses in contracts and subcontracts, where the estimated value of the supplies acquired or services required to be performed outside the United States exceeds $500,000, include the following requirements pertaining to the portion of the contract or subcontract performed outside the United States: (A) that each such contractor and subcontractor maintain a compliance plan during the performance of the contract or subcontract that is appropriate for the size and complexity of the contract or subcontract and the nature and scope of the activities performed, including the risk that the contract or subcontract will involve services or supplies susceptible to trafficking. The compliance plan shall be provided to the contracting officer upon request, and relevant contents of the plan shall be posted no later than the initiation of contract performance at the workplace and on the contractor or subcontractors Web site (if one is maintained), and shall, at a minimum, include: (i) an awareness program to inform employees about: (I) the policy of ensuring that employees do not engage in trafficking in persons or related activities, including those specified in subsection (a)(1)(A) of this section, the procurement of commercial sex acts, or the use of forced labor; and (II) the actions that will be taken against employees for violation of such policy; (ii) a process for employees to report, without fear of retaliation, any activity that would justify termination under section 106(g) of the TVPA, or is inconsistent with the requirements of this order, or any other applicable law or regulation establishing restrictions on trafficking in persons, the procurement of commercial sex acts, or the use of forced labor; (iii) a recruitment and wage plan that only permits the use of recruitment companies with trained employees, prohibits charging recruitment fees to the employee, and ensures that wages meet applicable host country legal requirements or explains any variance; (iv) a housing plan, if the contractor or subcontractor intends to provide or arrange housing, that ensures that the housing meets host country housing and safety standards or explains any variance; and (v) procedures to prevent subcontractors at any tier from engaging in trafficking in persons, including those trafficking-related activities described in subsection (a)(1)(A) of this section, and to monitor, detect, and terminate any subcontractors or subcontractor employees that have engaged in such activities; and (B) that each such contractor and subcontractor shall certify, prior to receiving an award and annually thereafter during the term of the contract or subcontract, that: (i) it has the compliance plan referred to in subsection (a)(2)(A) of this section in place to prevent trafficking-related activities described in section 106(g) of the TVPA and this order; and (ii) either, to the best of its knowledge and belief, neither it nor any of its subcontractors has engaged in any such activities; or, if abuses have been found, the contractor or subcontractor has taken the appropriate remedial and referral actions; (3) specify that the requirements in subsections (a)(2)(A) and (B) of this section shall not apply with respect to contracts or subcontracts for commercially available off-the-shelf items. (b) Not later than 1 year after the date of this order, the member agencies of the Presidents Interagency Task Force to Monitor and Combat Trafficking in Persons (PITF), established pursuant to section 105 of the TVPA, 22 U.S.C. 7103 Sec Guidance and Training (1) in consultation with appropriate management councils, such as the Chief Acquisition Officers Council, provide guidance to agencies on developing appropriate internal procedures and controls for awarding and administering Federal contracts to improve monitoring of and compliance with actions to prevent trafficking in persons, consistent with section 106 of the TVPA, including the development of methods to track the number of trafficking violations reported and remedies applied; and (2) in consultation with the Federal Acquisition Institute and appropriate management councils, such as the Chief Acquisition Officers Council: (A) develop methods to track the number of Federal employees trained; and (B) implement training requirements to ensure that the Federal acquisition workforce is trained on the policies and responsibilities for combating trafficking, including on: (i) applicable laws, regulations, and policies; and (ii) internal controls and oversight procedures implemented by the agency, including enforcement procedures available to the agency to investigate, manage, and mitigate contractor and subcontractor trafficking violations. (b) The member agencies of PITF shall jointly facilitate the sharing of information that may be used by acquisition, program, and other offices within agencies to evaluate where the risk of trafficking in persons may be heightened based on the nature of the work to be performed, the place of performance, and any other relevant considerations. Sec Effective Date Sec General Provisions (1) the authority granted by law to an executive department, agency, or the head thereof; or (2) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  Barack Obama.  Executive Order No. 13673 Ex. Ord. No. 13673, July 31, 2014 Dec. 11, 2014 Aug. 23, 2016 Mar. 27, 2017  Ex. Ord. No. 13782. Revocation of Federal Contracting Executive Orders Ex. Ord. No. 13782, Mar. 27, 2017 By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section Revocation July 31, 2014 December 11, 2014 August 23, 2016 Sec Reconsideration of Existing Rules Sec General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  Donald J. Trump.  Government Contracting Memorandum of President of the United States, Mar. 4, 2009 Memorandum for the Heads of Executive Departments and Agencies The Federal Government has an overriding obligation to American taxpayers. It should perform its functions efficiently and effectively while ensuring that its actions result in the best value for the taxpayers. Since 2001, spending on Government contracts has more than doubled, reaching over $500 billion in 2008. During this same period, there has been a significant increase in the dollars awarded without full and open competition and an increase in the dollars obligated through cost-reimbursement contracts. Between fiscal years 2000 and 2008, for example, dollars obligated under cost-reimbursement contracts nearly doubled, from $71 billion in 2000 to $135 billion in 2008. Reversing these trends away from full and open competition and toward cost-reimbursement contracts could result in savings of billions of dollars each year for the American taxpayer. Excessive reliance by executive agencies on sole-source contracts (or contracts with a limited number of sources) and cost-reimbursement contracts creates a risk that taxpayer funds will be spent on contracts that are wasteful, inefficient, subject to misuse, or otherwise not well designed to serve the needs of the Federal Government or the interests of the American taxpayer. Reports by agency Inspectors General, the Government Accountability Office (GAO), and other independent reviewing bodies have shown that noncompetitive and cost-reimbursement contracts have been misused, resulting in wasted taxpayer resources, poor contractor performance, and inadequate accountability for results. When awarding Government contracts, the Federal Government must strive for an open and competitive process. However, executive agencies must have the flexibility to tailor contracts to carry out their missions and achieve the policy goals of the Government. In certain exigent circumstances, agencies may need to consider whether a competitive process will not accomplish the agencys mission. In such cases, the agency must ensure that the risks associated with noncompetitive contracts are minimized. Moreover, it is essential that the Federal Government have the capacity to carry out robust and thorough management and oversight of its contracts in order to achieve programmatic goals, avoid significant overcharges, and curb wasteful spending. A GAO study last year of 95 major defense acquisitions projects found cost overruns of 26 percent, totaling $295 billion over the life of the projects. Improved contract oversight could reduce such sums significantly. Government outsourcing for services also raises special concerns. For decades, the Federal Government has relied on the private sector for necessary commercial services used by the Government, such as transportation, food, and maintenance. Office of Management and Budget Circular A76, first issued in 1966, was based on the reasonable premise that while inherently governmental activities should be performed by Government employees, taxpayers may receive more value for their dollars if non-inherently governmental activities that can be provided commercially are subject to the forces of competition. However, the line between inherently governmental activities that should not be outsourced and commercial activities that may be subject to private sector competition has been blurred and inadequately defined. As a result, contractors may be performing inherently governmental functions. Agencies and departments must operate under clear rules prescribing when outsourcing is and is not appropriate. It is the policy of the Federal Government that executive agencies shall not engage in noncompetitive contracts except in those circumstances where their use can be fully justified and where appropriate safeguards have been put in place to protect the taxpayer. In addition, there shall be a preference for fixed-price type contracts. Cost-reimbursement contracts shall be used only when circumstances do not allow the agency to define its requirements sufficiently to allow for a fixed-price type contract. Moreover, the Federal Government shall ensure that taxpayer dollars are not spent on contracts that are wasteful, inefficient, subject to misuse, or otherwise not well designed to serve the Federal Governments needs and to manage the risk associated with the goods and services being procured. The Federal Government must have sufficient capacity to manage and oversee the contracting process from start to finish, so as to ensure that taxpayer funds are spent wisely and are not subject to excessive risk. Finally, the Federal Government must ensure that those functions that are inherently governmental in nature are performed by executive agencies and are not outsourced. I hereby direct the Director of the Office of Management and Budget (OMB), in collaboration with the Secretary of Defense, the Administrator of the National Aeronautics and Space Administration, the Administrator of General Services, the Director of the Office of Personnel Management, and the heads of such other agencies as the Director of OMB determines to be appropriate, and with the participation of appropriate management councils and program management officials, to develop and issue by July 1, 2009 I further direct the Director of OMB, in collaboration with the aforementioned officials and councils, and with input from the public, to develop and issue by September 30, 2009 (1) govern the appropriate use and oversight of sole-source and other types of noncompetitive contracts and to maximize the use of full and open competition and other competitive procurement processes; (2) govern the appropriate use and oversight of all contract types, in full consideration of the agencys needs, and to minimize risk and maximize the value of Government contracts generally, consistent with the regulations to be promulgated pursuant to section 864 of Public Law 110417 (3) assist agencies in assessing the capacity and ability of the Federal acquisition workforce to develop, manage, and oversee acquisitions appropriately; and (4) clarify when governmental outsourcing for services is and is not appropriate, consistent with section 321 of Public Law 110417 31 U.S.C. 501 Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law. This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. The Director of OMB is hereby authorized and directed to publish this memorandum in the Federal Register.  Barack Obama.  3102. Delegation and assignment of powers, functions, and responsibilities (a)  In General Except to the extent expressly prohibited by another law, the head of an executive agency may delegate to another officer or official of that agency any power under this division. (b)  Procurements For or With Another Agency Subject to subsection (a), to facilitate the procurement of property and services covered by this division by an executive agency for another executive agency, and to facilitate joint procurement by executive agencies (1) the head of an executive agency may delegate functions and assign responsibilities relating to procurement to any officer or employee within the agency; (2) the heads of 2 or more executive agencies, consistent with section 1535 of title 31 Public Law 103355 31 U.S.C. 1535 (3) the heads of 2 or more executive agencies may establish joint or combined offices to exercise procurement functions and responsibilities. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3743        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3102 41:261. June 30, 1949, ch. 288 Pub. L. 103355, title I,  1552 Oct. 13, 1994 108 Stat. 3299  3103. Acquisition programs (a)  Congressional Policy It is the policy of Congress that the head of each executive agency should achieve, on average, 90 percent of the cost, performance, and schedule goals established for major acquisition programs of the agency. (b)  Establishment of Goals. (1)  By head of executive agency The head of each executive agency shall approve or define the cost, performance, and schedule goals for major acquisition programs of the agency. (2)  By chief financial officer The chief financial officer of an executive agency shall evaluate the cost goals proposed for each major acquisition program of the agency. (c)  Identification of Noncompliant Programs When it is necessary to implement the policy set out in subsection (a), the head of an executive agency shall (1) determine whether there is a continuing need for programs that are significantly behind schedule, over budget, or not in compliance with performance or capability requirements; and (2) identify suitable actions to be taken, including termination, with respect to those programs. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3743        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3103 41:263.  June 30, 1949, ch. 288 Pub. L. 103355, title V,  5051(a) Oct. 13, 1994 108 Stat. 3351 Pub. L. 10585, div. A, title VIII,  851(a) Nov. 18, 1997 111 Stat. 1851  3104. Small business concerns  It is the policy of Congress that a fair proportion of the total purchases and contracts for property and services for the Federal Government shall be placed with small business concerns. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3744        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3104 41:252(b). June 30, 1949, ch. 288 63 Stat. 393 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 98369, div. B, title VII,  2714(a)(1)(A) July 18, 1984 98 Stat. 1184 The word declared is omitted as unnecessary.  3105. New contracts and grants and merit-based selection procedures (a)  Congressional Policy It is the policy of Congress that (1) an executive agency should not be required by legislation to award (A) a new contract to a specific non-Federal Government entity; or (B) a new grant for research, development, test, or evaluation to a non-Federal Government entity; and (2) a program, project, or technology identified in legislation be procured or awarded through merit-based selection procedures. (b)  New Contract and New Grant Described For purposes of this section (1) a contract is a new contract unless the work provided for in the contract is a continuation of the work performed by the specified entity under a prior contract; and (2) a grant is a new grant unless the work provided for in the grant is a continuation of the work performed by the specified entity under a prior grant. (c)  Requirements for Awarding New Contract or New Grant A provision of law may not be construed as requiring a new contract or a new grant to be awarded to a specified non-Federal Government entity unless the provision of law specifically (1) refers to this section; (2) identifies the particular non-Federal Government entity involved; and (3) states that the award to that entity is required by the provision of law in contravention of the policy set forth in subsection (a). (d)  Exception This section does not apply to a contract or grant that calls on the National Academy of Sciences to investigate, examine, or experiment on a subject of science or art of significance to an executive agency and to report on those matters to Congress or an agency of the Federal Government. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3744        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3105(a) 41:253(i)(1). June 30, 1949, ch. 288 Pub. L. 103355, title VII,  7203(b)(1)(B) Oct. 13, 1994 108 Stat. 3380 Pub. L. 104106, title XLI,  4101(b)(1) Feb. 10, 1996 110 Stat. 642  41:266(a). June 30, 1949, ch. 288 Pub. L. 103355, title VII,  7203(b)(2) Oct. 13, 1994 108 Stat. 3381 Pub. L. 104106, title XLIII,  4321(e)(9) Feb. 10, 1996 110 Stat. 675 3105(b) 41:253(i)(3).  41:266(c). 3105(c) 41:253(i)(2).  41:266(b). 3105(d) 41:253(i)(4).  41:266(d).  3106. Erection, repair, or furnishing of public buildings and improvements not authorized, and certain contracts not permitted, by this division This division does not (1) authorize the erection, repair, or furnishing of a public building or public improvement; or (2) permit a contract for the construction or repair of a building, road, sidewalk, sewer, main, or similar item using procedures other than sealed-bid procedures under section 3301(b)(1)(A) of this title section 3301(b)(1)(A) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3745        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3106 41:252(c)(1). June 30, 1949, ch. 288 63 Stat. 393 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 85800 Aug. 28, 1958 72 Stat. 966 Pub. L. 89343,  2 Nov. 8, 1965 79 Stat. 1303 Pub. L. 89348,  1(2) Nov. 8, 1965 79 Stat. 1310 Pub. L. 90268,  4 Mar. 16, 1968 82 Stat. 50 Pub. L. 93356,  3 July 25, 1974 88 Stat. 390 Pub. L. 98191,  9(a)(1) Dec. 1, 1983 97 Stat. 1331 Pub. L. 98369, div. B, title VII,  2714(a)(1)(B) July 18, 1984 98 Stat. 1184 In paragraph (1), the words but such authorization shall be required in the same manner as heretofore are omitted as unnecessary. CHAPTER 33 PLANNING AND SOLICITATION    Sec.  3301. Full and open competition.  3302. Requirements for purchase of property and services pursuant to multiple award contracts.  3303. Exclusion of particular source or restriction of solicitation to small business concerns.  3304. Use of noncompetitive procedures.  3305. Simplified procedures for small purchases.  3306. Planning and solicitation requirements.  3307. Preference for commercial products and commercial services.  3308. Planning for future competition in contracts for major systems.  3309. Design-build selection procedures.  3310. Quantities to order.  3311. Qualification requirement.  3312. Database on price trends of items and services under Federal contracts.  Editorial Notes Amendments 2018 Pub. L. 115232, div. A, title VIII,  836(b)(10)(B)(ii) Aug. 13, 2018 132 Stat. 1863 2013 Pub. L. 112239, div. A, title VIII,  851(a)(2) Jan. 2, 2013 126 Stat. 1855  3301. Full and open competition (a)  In General Except as provided in sections 3303, 3304(a), and 3305 of this title and except in the case of procurement procedures otherwise expressly authorized by statute, an executive agency in conducting a procurement for property or services shall (1) obtain full and open competition through the use of competitive procedures in accordance with the requirements of this division and the Federal Acquisition Regulation; and (2) use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement. (b)  Appropriate Competitive Procedures. (1)  Use of sealed bids In determining the competitive procedures appropriate under the circumstance, an executive agency shall (A) solicit sealed bids if (i) time permits the solicitation, submission, and evaluation of sealed bids; (ii) the award will be made on the basis of price and other price-related factors; (iii) it is not necessary to conduct discussions with the responding sources about their bids; and (iv) there is a reasonable expectation of receiving more than one sealed bid; or (B) request competitive proposals if sealed bids are not appropriate under subparagraph (A). (2)  Sealed bid not required Paragraph (1)(A) does not require the use of sealed-bid procedures in cases in which section 204(e) 1 1 (c)  Efficient Fulfillment of Government Requirements The Federal Acquisition Regulation shall ensure that the requirement to obtain full and open competition is implemented in a manner that is consistent with the need to efficiently fulfill the Federal Governments requirements. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3745        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3301(a) 41:253(a)(1). June 30, 1949, ch. 288 63 Stat. 395 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 90268,  2 Mar. 16, 1968 82 Stat. 49 Pub. L. 98369, title VII,  2711(a)(1) July 18, 1984 98 Stat. 1175 Pub. L. 103355, title I,  1051(1) Oct. 13, 1994 108 Stat. 3260 3301(b)(1) 41:253(a)(2). 3301(b)(2) 41:252(c)(2). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2714(a)(1)(B) July 18, 1984 98 Stat. 1184 3301(c) 41:253(h). June 30, 1949, ch. 288 Pub. L. 104106, title XLI,  4101(b)(2) Feb. 10, 1996 110 Stat. 642 Editorial Notes  References in Text Section 204 of title 23 Pub. L. 112141, div. A, title I,  1119(a) July 6, 2012 126 Stat. 473 Statutory Notes and Related Subsidiaries Regulations Pub. L. 113291, div. A, title VIII,  836 Dec. 19, 2014 128 Stat. 3449 Not later than 180 days after the date of the enactment of this Act [ Dec. 19, 2014 Construction Pub. L. 98369, div. B, title VII,  2711(c) July 18, 1984 98 Stat. 1181 The amendments made by this section [see Tables for classification] do not supersede or affect the provisions of section 8(a) of the Small Business Act ( 15 U.S.C. 637(a) Pilot Programs for Authority To Acquire Innovative Commercial Items Using General Solicitation Competitive Procedures Pub. L. 114328, div. A, title VIII,  880 Dec. 23, 2016 130 Stat. 2313 Pub. L. 115232, div. A, title VIII,  836(f)(10) Aug. 13, 2018 132 Stat. 1872 Pub. L. 117263, div. G, title LXXII,  7227(a) Dec. 23, 2022 136 Stat. 3675  (a)  Authority. (1)  In general The head of an agency may carry out a pilot program, to be known as a commercial solutions opening pilot program, under which innovative commercial products may be acquired through a competitive selection of proposals resulting from a general solicitation and the peer review of such proposals. (2)  Head of an agency In this section, the term head of an agency means the following: (A) The Secretary of Homeland Security. (B) The Administrator of General Services. (3)  Applicability of section This section applies to the following agencies: (A) The Department of Homeland Security. (B) The General Services Administration. (b)  Treatment as Competitive Procedures Use of general solicitation competitive procedures for the pilot program under subsection (a) shall be considered, in the case of the Department of Homeland Security and the General Services Administration, to be use of competitive procedures for purposes of division C of [subtitle I of] title 41, United States Code (as defined in section 152 of such title). (c)  Limitation The head of an agency may not enter into a contract under the pilot program for an amount in excess of $25,000,000. (d)  Guidance The head of an agency shall issue guidance for the implementation of the pilot program under this section within that agency. Such guidance shall be issued in consultation with the Office of Management and Budget and shall be posted for access by the public. (e)  Report Required. (1)  In general Not later than three years after the date of the enactment of this Act [ Dec. 23, 2016 (2)  Elements of report Each report under this subsection shall include the following: (A) An assessment of the impact of the pilot program on competition. (B) A comparison of acquisition timelines for (i) procurements made using the pilot program; and (ii) procurements made using other competitive procedures that do not use general solicitations. (C) A recommendation on whether the authority for the pilot program should be made permanent. (3)  Specified congressional committees The congressional committees specified in this paragraph are the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives. (f)  Definitions In this section (1) the term commercial product (A) has the meaning given the term commercial item in section 2.101 of the Federal Acquisition Regulation; and (B) includes a commercial product or a commercial service, as defined in sections 103 and 103a, respectively, of title 41, United States Code; and (2) the term innovative means (A) any new technology, process, or method, including research and development; or (B) any new application of an existing technology, process, or method. (g)  Termination The authority to enter into a contract under a pilot program under this section terminates on September 30, 2027 Governmentwide Software Purchasing Program Pub. L. 113291, div. A, title VIII,  837 Dec. 19, 2014 128 Stat. 3450  (a)  In General The Administrator of General Services shall identify and develop a strategic sourcing initiative to enhance Governmentwide acquisition, shared use, and dissemination of software, as well as compliance with end user license agreements. (b)  Governmentwide User License Agreement The Administrator, in developing the initiative under subsection (a), shall allow for the purchase of a license agreement that is available for use by all Executive agencies (as defined in section 105 of title 5  3302. Requirements for purchase of property and services pursuant to multiple award contracts (a)  Definitions In this section: (1)  Executive agency The term executive agency has the same meaning given in section 133 of this title (2)  Individual purchase The term individual purchase means a task order, delivery order, or other purchase. (3)  Multiple award contract The term multiple award contract means (A) a contract that is entered into by the Administrator of General Services under the multiple award schedule program referred to in section 3012(3) of title 10 (B) a multiple award task order contract that is entered into under the authority of chapter 245 of title 10 or chapter 41 of this title; and (C) any other indefinite delivery, indefinite quantity contract that is entered into by the head of an executive agency with 2 or more sources pursuant to the same solicitation. (4)  Sole source task or delivery order The term sole source task or delivery order means any order that does not follow the competitive procedures in paragraph (2) or (3) of subsection (c). (b)  Regulations Required The Federal Acquisition Regulation shall require enhanced competition in the purchase of property and services by all executive agencies pursuant to multiple award contracts. (c)  Content of Regulations. (1)  In general The regulations required by subsection (b) shall provide that each individual purchase of property or services in excess of the simplified acquisition threshold that is made under a multiple award contract shall be made on a competitive basis unless a contracting officer (A) waives the requirement on the basis of a determination that (i) one of the circumstances described in paragraphs (1) to (4) of section 4106(c) of this title section 3406(c) of title 10 (ii) a law expressly authorizes or requires that the purchase be made from a specified source; and (B) justifies the determination in writing. (2)  Competitive basis procedures For purposes of this subsection, an individual purchase of property or services is made on a competitive basis only if it is made pursuant to procedures that (A) require fair notice of the intent to make that purchase (including a description of the work to be performed and the basis on which the selection will be made) to be provided to all contractors offering the property or services under the multiple award contract; and (B) afford all contractors responding to the notice a fair opportunity to make an offer and have that offer fairly considered by the official making the purchase. (3)  Exception to notice requirement. (A)  In general Notwithstanding paragraph (2), and subject to subparagraph (B), notice may be provided to fewer than all contractors offering the property or services under a multiple award contract as described in subsection (a)(3)(A) if notice is provided to as many contractors as practicable. (B)  Limitation on exception A purchase may not be made pursuant to a notice that is provided to fewer than all contractors under subparagraph (A) unless (i) offers were received from at least 3 qualified contractors; or (ii) a contracting officer of the executive agency determines in writing that no additional qualified contractors were able to be identified despite reasonable efforts to do so. (d)  Public Notice Requirements Related to Sole Source Task or Delivery Orders. (1)  Public notice required The Federal Acquisition Regulation shall require the head of each executive agency to (A) publish on FedBizOpps notice of all sole source task or delivery orders in excess of the simplified acquisition threshold that are placed against multiple award contracts not later than 14 days after the orders are placed, except in the event of extraordinary circumstances or classified orders; and (B) disclose the determination required by subsection (c)(1) related to sole source task or delivery orders in excess of the simplified acquisition threshold placed against multiple award contracts through the same mechanism and to the same extent as the disclosure of documents containing a justification and approval required by section 3204(e)(1) of title 10 section 3304(e)(1) of this title (2)  Exemption This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5 (e)  Applicability The regulations required by subsection (b) shall apply to all individual purchases of property or services that are made under multiple award contracts on or after the effective date of the regulations, without regard to whether the multiple award contracts were entered into before, on, or after the effective date. (f)  Commercial Leasing Services The regulations required by subsection (b) shall not apply to individual purchases for commercial leasing services that are made on a no cost basis and made under a multiple award contract awarded in accordance with the requirements for full and open competition. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3746 Pub. L. 111383, div. A, title X,  1075(e)(14) Jan. 7, 2011 124 Stat. 4375 Pub. L. 11692, div. A, title VIII,  893(b) Dec. 20, 2019 133 Stat. 1540 Pub. L. 11781, div. A, title XVII,  1702(h)(12) Dec. 27, 2021 135 Stat. 2158  Amendment Not Shown in Text This section was derived from Pub. L. 110417 Oct. 14, 2008 122 Stat. 4547 Pub. L. 111350 Jan. 4, 2011 124 Stat. 3677 Section 863(b)(3)(A) of Pub. L. 110417 Pub. L. 111383, div. A, title X,  1075(e)(14) Jan. 7, 2011 124 Stat. 4375 section 6(a) of Pub. L. 111350 section 101 of this title Section 863(b)(3)(A) of Pub. L. 110417 Repeal of Subsection (f) Pub. L. 11692, div. A, title VIII,  893(b)(2) Dec. 20, 2019 133 Stat. 1540 Dec. 31, 2025       Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3302 41:253h note. Pub. L. 110417 Oct. 14, 2008 122 Stat. 4547 In subsection (b), the words Not later than one year after the date of the enactment of this Act are omitted because of section 6(f) of the bill. The words shall require are substituted for shall be amended to require to reflect the permanence of the provision. In subsection (c)(2)(A), the words except as provided in paragraph (3) are omitted as unnecessary. In subsection (c)(3)(A), subsection (a)(3)(A) is substituted for subsection (d)(2)(A) for consistency in the revised title and to correct an error in the law. In subsection (d)(1), the words Not later than one year after the date of the enactment of this Act are omitted because of section 6(f) of the bill. The words shall require are substituted for shall be amended to require to reflect the permanence of the provision. Editorial Notes Amendments 2021Subsec. (a)(3). Pub. L. 11781,  1702(h)(12)(A) Subsec. (c)(1)(A)(i). Pub. L. 11781,  1702(h)(12)(B) Subsec. (d)(1)(B). Pub. L. 11781,  1702(h)(12)(C) 2019Subsec. (f). Pub. L. 11692,  893(b)(2) Pub. L. 11692,  893(b)(1) Statutory Notes and Related Subsidiaries Effective Date of 2019 Amendment Pub. L. 11692, div. A, title VIII,  893(b)(2) Dec. 20, 2019 133 Stat. 1540 Dec. 31, 2025 Individual Acquisition for Commercial Leasing Services Pub. L. 115232, div. A, title VIII,  877 Aug. 13, 2018 132 Stat. 1907 Pub. L. 11692, div. A, title VIII,  893(a) Dec. 20, 2019 133 Stat. 1540  3303. Exclusion of particular source or restriction of solicitation to small business concerns (a)  Exclusion of Particular Source. (1)  Criteria for exclusion An executive agency may provide for the procurement of property or services covered by section 3301 of this title (A) increase or maintain competition and likely result in reduced overall cost for the procurement, or for an anticipated procurement, of the property or services; (B) be in the interest of national defense in having a facility (or a producer, manufacturer, or other supplier) available for furnishing the property or service in case of a national emergency or industrial mobilization; (C) be in the interest of national defense in establishing or maintaining an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a Federally funded research and development center; (D) ensure the continuous availability of a reliable source of supply of the property or service; (E) satisfy projected needs for the property or service determined on the basis of a history of high demand for the property or service; or (F) satisfy a critical need for medical, safety, or emergency supplies. (2)  Determination for class disallowed A determination under paragraph (1) may not be made for a class of purchases or contracts. (b)  Exclusion of Other Than Small Business Concerns An executive agency may provide for the procurement of property or services covered by section 3301 of this title 15 U.S.C. 638 (c)  Nonapplication of Justification and Approval Requirements A contract awarded pursuant to the competitive procedures referred to in subsections (a) and (b) is not subject to the justification and approval required by section 3304(e)(1) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3747        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3303 41:253(b). June 30, 1949, ch. 288 63 Stat. 395 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 90268,  2 Mar. 16, 1968 82 Stat. 49 Pub. L. 98369, title VII,  2711(a)(1) July 18, 1984 98 Stat. 1175 Pub. L. 98577, title V,  504(a)(1) Oct. 30, 1984 98 Stat. 3086 Pub. L. 103355, title I,  1052 Oct. 13, 1994 108 Stat. 3260  3304. Use of noncompetitive procedures (a)  When Noncompetitive Procedures May Be Used An executive agency may use procedures other than competitive procedures only when (1) the property or services needed by the executive agency are available from only one responsible source and no other type of property or services will satisfy the needs of the executive agency; (2) the executive agencys need for the property or services is of such an unusual and compelling urgency that the Federal Government would be seriously injured unless the executive agency is permitted to limit the number of sources from which it solicits bids or proposals; (3) it is necessary to award the contract to a particular source (A) to maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of a national emergency or to achieve industrial mobilization; (B) to establish or maintain an essential engineering, research, or development capability to be provided by an educational or other nonprofit institution or a Federally funded research and development center; (C) to procure the services of an expert for use, in any litigation or dispute (including any reasonably foreseeable litigation or dispute) involving the Federal Government, in any trial, hearing, or proceeding before a court, administrative tribunal, or agency, whether or not the expert is expected to testify; or (D) to procure the services of an expert or neutral for use in any part of an alternative dispute resolution or negotiated rulemaking process, whether or not the expert is expected to testify; (4) the terms of an international agreement or treaty between the Federal Government and a foreign government or an international organization, or the written directions of a foreign government reimbursing the executive agency for the cost of the procurement of the property or services for that government, have the effect of requiring the use of procedures other than competitive procedures; (5) subject to section 3105 of this title (6) the disclosure of the executive agencys needs would compromise the national security unless the agency is permitted to limit the number of sources from which it solicits bids or proposals; or (7) the head of the executive agency (who may not delegate the authority under this paragraph) (A) determines that it is necessary in the public interest to use procedures other than competitive procedures in the particular procurement concerned; and (B) notifies Congress in writing of that determination not less than 30 days before the award of the contract. (b)  Property or Services Deemed Available From Only One Source For the purposes of subsection (a)(1), in the case of (1) a contract for property or services to be awarded on the basis of acceptance of an unsolicited research proposal, the property or services are deemed to be available from only one source if the source has submitted an unsolicited research proposal that demonstrates a unique and innovative concept, the substance of which is not otherwise available to the Federal Government and does not resemble the substance of a pending competitive procurement; or (2) a follow-on contract for the continued development or production of a major system or highly specialized equipment, the property may be deemed to be available only from the original source and may be procured through procedures other than competitive procedures when it is likely that award to a source other than the original source would result in (A) substantial duplication of cost to the Federal Government that is not expected to be recovered through competition; or (B) unacceptable delay in fulfilling the executive agencys needs. (c)  Property or Services Needed With Unusual and Compelling Urgency. (1)  Allowable contract period The contract period of a contract described in paragraph (2) that is entered into by an executive agency pursuant to the authority provided under subsection (a)(2) (A) may not exceed the time necessary (i) to meet the unusual and compelling requirements of the work to be performed under the contract; and (ii) for the executive agency to enter into another contract for the required goods or services through the use of competitive procedures; and (B) may not exceed one year unless the head of the executive agency entering into the contract determines that exceptional circumstances apply. (2)  Applicability of allowable contract period This subsection applies to any contract in an amount greater than the simplified acquisition threshold. (d)  Offer Requests to Potential Sources An executive agency using procedures other than competitive procedures to procure property or services by reason of the application of paragraph (2) or (6) of subsection (a) shall request offers from as many potential sources as is practicable under the circumstances. (e)  Justification for Use of Noncompetitive Procedures. (1)  Prerequisites for awarding contract Except as provided in paragraphs (3) and (4), an executive agency may not award a contract using procedures other than competitive procedures unless (A) the contracting officer for the contract justifies the use of those procedures in writing and certifies the accuracy and completeness of the justification; (B) the justification is approved, in the case of a contract for an amount (i) exceeding $500,000 but equal to or less than $10,000,000, by the advocate for competition for the procuring activity (without further delegation) or by an official referred to in clause (ii) or (iii); (ii) exceeding $10,000,000 but equal to or less than $50,000,000, by the head of the procuring activity or by a delegate who, if a member of the armed forces, is a general or flag officer or, if a civilian, is serving in a position in which the individual is entitled to receive the daily equivalent of the maximum annual rate of basic pay payable for level IV of the Executive Schedule (or in a comparable or higher position under another schedule); or (iii) exceeding $50,000,000, by the senior procurement executive of the agency designated pursuant to section 1702(c) of this title (C) any required notice has been published with respect to the contract pursuant to section 1708 of this title (2)  Elements of justification The justification required by paragraph (1)(A) shall include (A) a description of the agencys needs; (B) an identification of the statutory exception from the requirement to use competitive procedures and a demonstration, based on the proposed contractors qualifications or the nature of the procurement, of the reasons for using that exception; (C) a determination that the anticipated cost will be fair and reasonable; (D) a description of the market survey conducted or a statement of the reasons a market survey was not conducted; (E) a listing of any sources that expressed in writing an interest in the procurement; and (F) a statement of any actions the agency may take to remove or overcome a barrier to competition before a subsequent procurement for those needs. (3)  Justification allowed after contract awarded In the case of a procurement permitted by subsection (a)(2), the justification and approval required by paragraph (1) may be made after the contract is awarded. (4)  Justification not required The justification and approval required by paragraph (1) are not required if (A) a statute expressly requires that the procurement be made from a specified source; (B) the agencys need is for a brand-name commercial product for authorized resale; (C) the procurement is permitted by subsection (a)(7); or (D) the procurement is conducted under chapter 85 of this title or section 8(a) of the Small Business Act ( 15 U.S.C. 637(a) (5)  Restrictions on executive agencies. (A)  Contracts and procurement of property or services In no case may an executive agency (i) enter into a contract for property or services using procedures other than competitive procedures on the basis of the lack of advance planning or concerns related to the amount available to the agency for procurement functions; or (ii) procure property or services from another executive agency unless the other executive agency complies fully with the requirements of this division in its procurement of the property or services. (B)  Additional restriction The restriction set out in subparagraph (A)(ii) is in addition to any other restriction provided by law. (f)  Public Availability of Justification and Approval Required for Using Noncompetitive Procedures. (1)  Time requirement. (A)  Within 14 days after contract award Except as provided in subparagraph (B), in the case of a procurement permitted by subsection (a), the head of an executive agency shall make publicly available, within 14 days after the award of the contract, the documents containing the justification and approval required by subsection (e)(1) with respect to the procurement. (B)  Within 30 days after contract award In the case of a procurement permitted by subsection (a)(2), subparagraph (A) shall be applied by substituting 30 days for 14 days. (2)  Availability on websites The documents referred to in subparagraph (A) of paragraph (1) shall be made available on the website of the agency and through a Government-wide website selected by the Administrator. (3)  Exception to availability and approval requirement This subsection does not require the public availability of information that is exempt from public disclosure under section 552(b) of title 5 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3748 Pub. L. 115232, div. A, title VIII,  836(b)(7) Aug. 13, 2018 132 Stat. 1861        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3304(a) 41:253(c), (d)(2). June 30, 1949, ch. 288 63 Stat. 395 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 90268,  2 Mar. 16, 1968 82 Stat. 49 Pub. L. 98369, title VII,  2711(a)(1) July 18, 1984 98 Stat. 1176 Pub. L. 98577, title V,  504(a)(2) Oct. 30, 1984 98 Stat. 3086 Pub. L. 99145, title IX,  961(a)(2) Nov. 8, 1985 99 Stat. 703 Pub. L. 103355, title I Oct. 13, 1994 108 Stat. 3261 Pub. L. 104106, title XLI,  4102(b) Feb. 10, 1996 110 Stat. 643 Pub. L. 104320 Oct. 19, 1996 110 Stat. 3871 Pub. L. 110181, div. A, title VIII,  844(a) Jan. 28, 2008 122 Stat. 239 Pub. L. 110417 Oct. 14, 2008 122 Stat. 4546 3304(b) 41:253(d)(1). 3304(c) 41:253(d)(3). 3304(d) 41:253(e). 3304(e)(1) 41:253(f)(1). 3304(e)(2) 41:253(f)(3). 3304(e)(3), (4) 41:253(f)(2). 3304(e)(5) 41:253(f)(4). 3304(f) 41:253(j). In subsection (a)(7), the words (who may not delegate the authority under this paragraph) are substituted for 41:253(d)(2) to move the restriction closer to where it applies. In subsection (e)(1)(B)(i), the words advocate for competition are substituted for competition advocate for consistency with section 1705 of the revised title. In subsection (e)(1)(B)(ii), the reference to section 5376 of title 5 Public Law 101509 104 Stat. 1442 5 U.S.C. 5376 In subsection (e)(5)(B), the words and not in lieu of are omitted as unnecessary. In subsection (f)(2), the words referred to in subparagraph (A) of paragraph (1) are added for clarity. Senate Revision Amendment In subsec. (e)(1)(B)(ii), for level IV of the Executive Schedule substituted for under section 5376 of title 5 Editorial Notes Amendments 2018Subsecs. (a)(5), (e)(4)(B). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6 General Services Administration: Notification of Use of Noncompetitive Procedures in Response to Public Health Emergency Declaration Pub. L. 116136, div. B, title V,  15003 Mar. 27, 2020 134 Stat. 532 Notwithstanding 41 U.S.C. 3304(a)(7)(B) 41 U.S.C. 3304(a)(7)(A) 42 U.S.C. 247(d) Justification and Approval of Sole-Source Contracts Pub. L. 11184, div. A, title VIII,  811 Oct. 28, 2009 123 Stat. 2405 Pub. L. 11781, div. A, title XVII,  1702(i)(3) Dec. 27, 2021 135 Stat. 2159  (a)  In General Not later than 180 days after the date of the enactment of this Act [ Oct. 28, 2009 (1) the contracting officer for the contract justifies the use of a sole-source contract in writing; (2) the justification is approved by the appropriate official designated to approve contract awards for dollar amounts that are comparable to the amount of the sole-source contract; and (3) the justification and related information are made public as provided in sections 3204(e)(1)(C) and 3204(f) of title 10, United States Code, or sections 303(f)(1)(C) and 303(j) of the Federal Property and Administrative Services Act of 1949 ( 41 U.S.C. 253(f)(1)(C) 41 U.S.C. 3304(e)(1)(C) (b)  Elements of Justification The justification of a sole-source contract required pursuant to subsection (a) shall include the following: (1) A description of the needs of the agency concerned for the matters covered by the contract. (2) A specification of the statutory provision providing the exception from the requirement to use competitive procedures in entering into the contract. (3) A determination that the use of a sole-source contract is in the best interest of the agency concerned. (4) A determination that the anticipated cost of the contract will be fair and reasonable. (5) Such other matters as the head of the agency concerned shall specify for purposes of this section. (c)  Definitions In this section: (1)  Covered procurement The term covered procurement means either of the following: (A) A procurement described in section 3204(e)(4)(D)(ii) of title 10 (B) A procurement described in section 303(f)(2)(D)(ii) of the Federal Property and Administrative Services Act of 1949 ([former] 41 U.S.C. 253(f)(2)(D)(ii) 41 U.S.C. 3304(e)(4)(D) (2)  Head of an agency The term head of an agency (A) in the case of a covered procurement as defined in paragraph (1)(A), has the meaning provided in section 3004 of title 10 (B) in the case of a covered procurement as defined in paragraph (1)(B), has the meaning provided the term agency head in section 309(a) of the Federal Property and Administrative Services Act of 1949 ( 41 U.S.C. 259(a) 41 U.S.C. 151 (3)  Appropriate official The term appropriate official means (A) in the case of a covered procurement as defined in paragraph (1)(A), an official designated in section 3204(e)(1)(B) of title 10 (B) in the case of a covered procurement as defined in paragraph (1)(B), an official designated in section 303(f)(1)(B) of the Federal Property and Administrative Services Act of 1949 ( 41 U.S.C. 253(f)(1)(B) 41 U.S.C. 3304(e)(1)(B)  3305. Simplified procedures for small purchases (a)  Authorization To promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the Federal Acquisition Regulation shall provide for special simplified procedures for purchases of property and services for amounts (1) not greater than the simplified acquisition threshold; and (2) greater than the simplified acquisition threshold but not greater than $5,000,000 for which the contracting officer reasonably expects, based on the nature of the property or services sought and on market research, that offers will include only commercial products or commercial services. (b)  Leasehold Interests in Real Property The Administrator of General Services shall prescribe regulations that provide special simplified procedures for acquisitions of leasehold interests in real property at rental rates that do not exceed the simplified acquisition threshold. The rental rate under a multiyear lease does not exceed the simplified acquisition threshold if the average annual amount of the rent payable for the period of the lease does not exceed the simplified acquisition threshold. (c)  Prohibition on Dividing Contracts A proposed purchase or contract for an amount above the simplified acquisition threshold may not be divided into several purchases or contracts for lesser amounts to use the simplified procedures required by subsection (a). (d)  Promotion of Competition In using the simplified procedures, an executive agency shall promote competition to the maximum extent practicable. (e)  Compliance With Special Requirements of Federal Acquisition Regulation An executive agency shall comply with the Federal Acquisition Regulation provisions referred to in section 1901(e) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3752 Pub. L. 115232, div. A, title VIII,  836(b)(8) Aug. 13, 2018 132 Stat. 1861        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3305 41:253(g). June 30, 1949, ch. 288 63 Stat. 395 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 90268,  2 Mar. 16, 1968 82 Stat. 49 Pub. L. 98369, title VII,  2711(a)(1) July 18, 1984 98 Stat. 1178 Pub. L. 99145, title XIII,  1304(c)(3) Nov. 8, 1985 99 Stat. 742 Pub. L. 101510, title VIII,  806(c) Nov. 5, 1990 104 Stat. 1592 Pub. L. 103355, title I,  1051(2) Oct. 13, 1994 108 Stat. 3260 Pub. L. 104106, title XLII,  4202(b)(1) Feb. 10, 1996 110 Stat. 653 Pub. L. 10585, title VIII,  850(f)(4)(B) Nov. 18, 1997 111 Stat. 1850 Editorial Notes Amendments 2018Subsec. (a)(2). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  3306. Planning and solicitation requirements (a)  Planning and Specifications. (1)  Preparing for procurement In preparing for the procurement of property or services, an executive agency shall (A) specify its needs and solicit bids or proposals in a manner designed to achieve full and open competition for the procurement; (B) use advance procurement planning and market research; and (C) develop specifications in the manner necessary to obtain full and open competition with due regard to the nature of the property or services to be acquired. (2)  Requirements of specifications Each solicitation under this division shall include specifications that (A) consistent with this division, permit full and open competition; and (B) include restrictive provisions or conditions only to the extent necessary to satisfy the needs of the executive agency or as authorized by law. (3)  Types of specifications For the purposes of paragraphs (1) and (2), the type of specification included in a solicitation shall depend on the nature of the needs of the executive agency and the market available to satisfy those needs. Subject to those needs, specifications may be stated in terms of (A) function, so that a variety of products or services may qualify; (B) performance, including specifications of the range of acceptable characteristics or of the minimum acceptable standards; or (C) design requirements. (b)  Contents of Solicitation In addition to the specifications described in subsection (a), each solicitation for sealed bids or competitive proposals (other than for a procurement for commercial products or commercial services using special simplified procedures or a purchase for an amount not greater than the simplified acquisition threshold) shall at a minimum include (1) a statement of (A) all significant factors and significant subfactors that the executive agency reasonably expects to consider in evaluating sealed bids (including price) or competitive proposals (including cost or price, cost-related or price-related factors and subfactors, and noncost-related or nonprice-related factors and subfactors); and (B) the relative importance assigned to each of those factors and subfactors; and (2) (A) in the case of sealed bids (i) a statement that sealed bids will be evaluated without discussions with the bidders; and (ii) the time and place for the opening of the sealed bids; or (B) in the case of competitive proposals (i) either a statement that the proposals are intended to be evaluated with, and the award made after, discussions with the offerors, or a statement that the proposals are intended to be evaluated, and the award made, without discussions with the offerors (other than discussions conducted for the purpose of minor clarification) unless discussions are determined to be necessary; and (ii) the time and place for submission of proposals. (c)  Evaluation Factors. (1)  In general In prescribing the evaluation factors to be included in each solicitation for competitive proposals, an executive agency shall (A) establish clearly the relative importance assigned to the evaluation factors and subfactors, including the quality of the product or services to be provided (including technical capability, management capability, prior experience, and past performance of the offeror); (B) except as provided in paragraph (3), include cost or price to the Federal Government as an evaluation factor that must be considered in the evaluation of proposals; and (C) except as provided in paragraph (3), disclose to offerors whether all evaluation factors other than cost or price, when combined, are (i) significantly more important than cost or price; (ii) approximately equal in importance to cost or price; or (iii) significantly less important than cost or price. (2)  Restriction on implementing regulations Regulations implementing paragraph (1)(C) may not define the terms significantly more important and significantly less important as specific numeric weights that would be applied uniformly to all solicitations or a class of solicitations. (3)  Exceptions for certain indefinite delivery, indefinite quantity multiple-award contracts and certain federal supply schedule contracts for services acquired on an hourly rate If an executive agency issues a solicitation for one or more contracts for services to be acquired on an hourly rate basis under the authority of sections 4103 and 4106 of this title or section 152(3) of this title section 501(b) of title 40 (A) the contracting officer need not consider price as an evaluation factor for contract award; and (B) if, pursuant to subparagraph (A), price is not considered as an evaluation factor for contract award, cost or price to the Federal Government shall be considered in conjunction with the issuance pursuant to sections 4106(c) and 152(3) of this title of any task or delivery order under any contract resulting from the solicitation. (4)  Definition In paragraph (3), the term qualifying offeror means an offeror that (A) is determined to be a responsible source; (B) submits a proposal that conforms to the requirements of the solicitation; (C) meets all technical requirements; and (D) is otherwise eligible for award. (d)  Additional Information in Solicitation This section does not prohibit an executive agency from (1) providing additional information in a solicitation, including numeric weights for all evaluation factors and subfactors on a case-by-case basis; or (2) stating in a solicitation that award will be made to the offeror that meets the solicitations mandatory requirements at the lowest cost or price. (e)  Limitation on Evaluation of Purchase Options An executive agency, in issuing a solicitation for a contract to be awarded using sealed bid procedures, may not include in the solicitation a clause providing for the evaluation of prices for options to purchase additional property or services under the contract unless the executive agency has determined that there is a reasonable likelihood that the options will be exercised. (f)  Authorization of Telecommuting for Federal Contractors. (1)  Definition In this subsection, the term executive agency has the meaning given that term in section 133 of this title (2)  Federal acquisition regulation to allow telecommuting The Federal Acquisition Regulation issued in accordance with sections 1121(b) and 1303(a)(1) of this title shall permit telecommuting by employees of Federal Government contractors in the performance of contracts entered into with executive agencies. (3)  Scope of allowance The Federal Acquisition Regulation at a minimum shall provide that a solicitation for the acquisition of property or services may not set forth any requirement or evaluation criteria that would (A) render an offeror ineligible to enter into a contract on the basis of the inclusion of a plan of the offeror to allow the offerors employees to telecommute, unless the contracting officer concerned first determines that the requirements of the agency, including security requirements, cannot be met if telecommuting is allowed and documents in writing the basis for the determination; or (B) reduce the scoring of an offer on the basis of the inclusion in the offer of a plan of the offeror to allow the offerors employees to telecommute, unless the contracting officer concerned first determines that the requirements of the agency, including security requirements, would be adversely impacted if telecommuting is allowed and documents in writing the basis for the determination. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3752 Pub. L. 115232, div. A, title VIII Aug. 13, 2018 132 Stat. 1861        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3306(a)(e) 41:253a. June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(2) July 18, 1984 98 Stat. 1178 Pub. L. 103355, title I Oct. 13, 1994 108 Stat. 3266 Pub. L. 104106, title XLII,  4202(b)(2) Feb. 10, 1996 110 Stat. 653 3306(f) 41:253a note. Pub. L. 108136, title XIV,  1428 Nov. 24, 2003 117 Stat. 1670 In subsection (f)(2), the words Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall amend are omitted as obsolete. Editorial Notes Amendments 2018Subsec. (b). Pub. L. 115232,  836(b)(9) Subsec. (c)(1)(B), (C). Pub. L. 115232,  876(1) Subsec. (c)(3), (4). Pub. L. 115232,  876(2) Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by section 836(b)(9) of Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  3307. Preference for commercial products and commercial services (a)  Relationship of Provisions of Law to Procurement of Commercial Products and Commercial Services. (1)  This division Unless otherwise specifically provided, all other provisions in this division also apply to the procurement of commercial products and commercial services. (2)  Laws listed in federal acquisition regulation A contract for the procurement of a commercial product or commercial service entered into by the head of an executive agency is not subject to a law properly listed in the Federal Acquisition Regulation pursuant to section 1906 of this title (b)  Preference The head of each executive agency shall ensure that, to the maximum extent practicable (1) requirements of the executive agency with respect to a procurement of supplies or services are stated in terms of (A) functions to be performed; (B) performance required; or (C) essential physical characteristics; (2) those requirements are defined so that commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agencys needs are not available, nondevelopmental items other than commercial products may be procured to fulfill those requirements; and (3) offerors of commercial services, commercial products, and nondevelopmental items other than commercial products are provided an opportunity to compete in any procurement to fill those requirements. (c)  Implementation The head of each executive agency shall ensure that procurement officials in that executive agency, to the maximum extent practicable (1) acquire commercial services or commercial products or nondevelopmental items other than commercial products to meet the needs of the executive agency; (2) require that prime contractors and subcontractors at all levels under contracts of the executive agency incorporate commercial services or commercial products or nondevelopmental items other than commercial products as components of items supplied to the executive agency; (3) modify requirements in appropriate cases to ensure that the requirements can be met by commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agencys needs are not available, nondevelopmental items other than commercial products; (4) state specifications in terms that enable and encourage bidders and offerors to supply commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agencys needs are not available, nondevelopmental items other than commercial products in response to the executive agency solicitations; (5) revise the executive agencys procurement policies, practices, and procedures not required by law to reduce any impediments in those policies, practices, and procedures to the acquisition of commercial products and commercial services; and (6) require training of appropriate personnel in the acquisition of commercial products and commercial services. (d)  Market Research. (1)  When to be used The head of an executive agency shall conduct market research appropriate to the circumstances (A) before developing new specifications for a procurement by that executive agency; and (B) before soliciting bids or proposals for a contract in excess of the simplified acquisition threshold. (2)  Use of results The head of an executive agency shall use the results of market research to determine whether commercial services or commercial products or, to the extent that commercial products suitable to meet the executive agencys needs are not available, nondevelopmental items other than commercial products are available that (A) meet the executive agencys requirements; (B) could be modified to meet the executive agencys requirements; or (C) could meet the executive agencys requirements if those requirements were modified to a reasonable extent. (3)  Only minimum information required to be submitted In conducting market research, the head of an executive agency should not require potential sources to submit more than the minimum information that is necessary to make the determinations required in paragraph (2). (4)  Documentation The head of the agency shall document the results of market research in a manner appropriate to the size and complexity of the acquisition. (e)  Regulations. (1)  In general The Federal Acquisition Regulation shall provide regulations to implement this section, sections 102, 103, 103a, 104, 105, and 110 of this title, and chapter 247 of title 10. (2)  Contract clauses. (A)  Definition In this paragraph, the term subcontract includes a transfer of commercial products or commercial services between divisions, subsidiaries, or affiliates of a contractor or subcontractor. (B)  List of clauses to be included The regulations prescribed under paragraph (1) shall contain a list of contract clauses to be included in contracts for the acquisition of end items that are commercial products. To the maximum extent practicable, the list shall include only those contract clauses that are (i) required to implement provisions of law or executive orders applicable to acquisitions of commercial products, commercial components, or commercial services; or (ii) determined to be consistent with standard commercial practice. (C)  Requirements of prime contractor The regulations shall provide that the Federal Government shall not require a prime contractor to apply to any of its divisions, subsidiaries, affiliates, subcontractors, or suppliers that are furnishing commercial products or commercial services any contract clause except those that are (i) required to implement provisions of law or executive orders applicable to subcontractors furnishing commercial products, commercial components, or commercial services; or (ii) determined to be consistent with standard commercial practice. (D)  Clauses that may be used in a contract To the maximum extent practicable, only the contract clauses listed pursuant to subparagraph (B) may be used in a contract, and only the contract clauses referred to in subparagraph (C) may be required to be used in a subcontract, for the acquisition of commercial products, commercial components, or commercial services by or for an executive agency. (E)  Waiver of contract clauses The Federal Acquisition Regulation shall provide standards and procedures for waiving the use of contract clauses required pursuant to subparagraph (B), other than those required by law, including standards for determining the cases in which a waiver is appropriate. (3)  Market acceptance. (A)  Requirement of offerors The Federal Acquisition Regulation shall provide that under appropriate conditions the head of an executive agency may require offerors to demonstrate that the items offered (i) have achieved commercial market acceptance or been satisfactorily supplied to an executive agency under current or recent contracts for the same or similar requirements; and (ii) otherwise meet the item description, specifications, or other criteria prescribed in the public notice and solicitation relating to the contract. (B)  Regulation to provide guidance on criteria The Federal Acquisition Regulation shall provide guidance to ensure that the criteria for determining commercial market acceptance include the consideration of (i) the minimum needs of the executive agency concerned; and (ii) the entire relevant commercial market, including small businesses. (4)  Provisions relating to types of contracts. (A)  Types of contracts that may be used The Federal Acquisition Regulation shall include, for acquisitions of commercial products or commercial services (i) a requirement that firm, fixed price contracts or fixed price with economic price adjustment contracts be used to the maximum extent practicable; (ii) a prohibition on use of cost type contracts; and (iii) subject to subparagraph (B), authority for use of a time-and-materials or labor-hour contract for the procurement of commercial services that are commonly sold to the general public through those contracts and are purchased by the procuring agency on a competitive basis. (B)  When time-and-materials or labor-hour contract may be used A time-and-materials or labor-hour contract may be used pursuant to the authority referred to in subparagraph (A)(iii) (i) only for a procurement of commercial services in a category of commercial services described in subparagraph (C); and (ii) only if the contracting officer for the procurement (I) executes a determination and findings that no other contract type is suitable; (II) includes in the contract a ceiling price that the contractor exceeds at its own risk; and (III) authorizes a subsequent change in the ceiling price only on a determination, documented in the contract file, that it is in the best interest of the procuring agency to change the ceiling price. (C)  Categories of commercial services The categories of commercial services referred to in subparagraph (B) are as follows: (i) Commercial services procured for support of a commercial product, as described in section 103a(1) of this title (ii) Any other category of commercial services that the Administrator for Federal Procurement Policy designates in the Federal Acquisition Regulation for the purposes of this subparagraph on the basis that (I) the commercial services in the category are of a type of commercial services that are commonly sold to the general public through use of time-and-materials or labor-hour contracts; and (II) it would be in the best interests of the Federal Government to authorize use of time-and-materials or labor-hour contracts for purchases of the commercial services in the category. (5)  Contract quality requirements Regulations prescribed under paragraph (1) shall include provisions that (A) allow, to the maximum extent practicable, a contractor under a commercial products acquisition to use the existing quality assurance system of the contractor as a substitute for compliance with an otherwise applicable requirement for the Federal Government to inspect or test the commercial products before the contractors tender of those products for acceptance by the Federal Government; (B) require that, to the maximum extent practicable, the executive agency take advantage of warranties (including extended warranties) offered by offerors of commercial products and use those warranties for the repair and replacement of commercial products; and (C) set forth guidance regarding the use of past performance of commercial products and sources as a factor in contract award decisions. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3754 Pub. L. 115232, div. A, title VIII,  836(b)(10)(A) Aug. 13, 2018 132 Stat. 18611863 Pub. L. 11692, div. A, title VIII,  818(b) Dec. 20, 2019 133 Stat. 1488 Pub. L. 11781, div. A, title XVII,  1702(h)(13) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3307(a) 41:264. June 30, 1949, ch. 288 Pub. L. 103355, title VIII Oct. 13, 1994 108 Stat. 3394 3307(b) 41:264b(a). 3307(c) 41:264b(b). 3307(d) 41:264b(c). 3307(e) 41:264 note. Pub. L. 103355, title VIII,  8002 Oct. 13, 1994 108 Stat. 3386 Pub. L. 108136, title XIV Nov. 24, 2003 117 Stat. 1672 Subsection (a)(1) is substituted for 41 U.S.C. 264(a) In subsection (e), the text of section 8002(f) of the Federal Acquisition Streamlining Act of 1994 ( Public Law 103355 41 U.S.C. 264 In subsection (e)(2)(B)(i) and (C)(i), the words as the case may be are omitted as unnecessary. Editorial Notes Amendments 2021Subsec. (e)(1). Pub. L. 11781 2019Subsec. (d)(4). Pub. L. 11692 2018 Pub. L. 115232,  836(b)(10)(B)(i) Subsec. (a). Pub. L. 115232,  836(b)(10)(A)(i)(I) Subsec. (a)(1). Pub. L. 115232,  836(b)(10)(A)(i)(II) Subsec. (a)(2). Pub. L. 115232,  836(b)(10)(A)(i)(III) Subsec. (b)(2). Pub. L. 115232,  836(b)(10)(A)(ii)(I) Subsec. (b)(3). Pub. L. 115232,  836(b)(10)(A)(ii)(II) Subsec. (c)(1), (2). Pub. L. 115232,  836(b)(10)(A)(iii)(I) Subsec. (c)(3), (4). Pub. L. 115232,  836(b)(10)(A)(iii)(II) Subsec. (c)(5), (6). Pub. L. 115232,  836(b)(10)(A)(iii)(III) Subsec. (d)(2). Pub. L. 115232,  836(b)(10)(A)(iv) Subsec. (e)(1). Pub. L. 115232,  836(b)(10)(A)(v)(I) Subsec. (e)(2)(A). Pub. L. 115232,  836(b)(10)(A)(v)(II) Subsec. (e)(2)(B). Pub. L. 115232,  836(b)(10)(A)(v)(III) Subsec. (e)(2)(C). Pub. L. 115232,  836(b)(10)(A)(v)(IV) Subsec. (e)(2)(D). Pub. L. 115232,  836(b)(10)(A)(v)(IV) Subsec. (e)(4)(A). Pub. L. 115232,  836(b)(10)(A)(v)(VI) Subsec. (e)(4)(C)(i). Pub. L. 115232,  836(b)(10)(A)(v)(VII) Subsec. (e)(5). Pub. L. 115232,  836(b)(10)(A)(v)(VIII) Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  3308. Planning for future competition in contracts for major systems (a)  Development Contract. (1)  Determining whether proposals are necessary In preparing a solicitation for the award of a development contract for a major system, the head of an agency shall consider requiring in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require the proposals, the head of the agency shall consider the purposes for which the system is being procured and the technology necessary to meet the systems required capabilities. If the proposals are required, the head of the agency shall consider them in evaluating the offerors price. (2)  Contents of proposals The proposals that the head of an agency is to consider requiring in a solicitation for the award of a development contract are the following: (A) Proposals to incorporate in the design of the major system items that are currently available within the supply system of the Federal agency responsible for the major system, available elsewhere in the national supply system, or commercially available from more than one source. (B) With respect to items that are likely to be required in substantial quantities during the systems service life, proposals to incorporate in the design of the major system items that the Federal Government will be able to acquire competitively in the future. (b)  Production Contract. (1)  Determining whether proposals are necessary In preparing a solicitation for the award of a production contract for a major system, the head of an agency shall consider requiring in the solicitation that an offeror include in its offer proposals described in paragraph (2). In determining whether to require the proposals, the head of the agency shall consider the purposes for which the system is being procured and the technology necessary to meet the systems required capabilities. If the proposals are required, the head of the agency shall consider them in evaluating the offerors price. (2)  Content of proposals The proposals that the head of an agency is to consider requiring in a solicitation for the award of a production contract are proposals identifying opportunities to ensure that the Federal Government will be able to obtain on a competitive basis items procured in connection with the system that are likely to be reprocured in substantial quantities during the service life of the system. Proposals submitted in response to this requirement may include the following: (A) Proposals to provide to the Federal Government the right to use technical data to be provided under the contract for competitive reprocurement of the item, together with the cost to the Federal Government of acquiring the data and the right to use the data. (B) Proposals for the qualification or development of multiple sources of supply for the item. (c)  Consideration of Factors as Objectives in Negotiations If the head of an agency is making a noncompetitive award of a development contract or a production contract for a major system, the factors specified in subsections (a) and (b) to be considered in evaluating an offer for a contract may be considered as objectives in negotiating the contract to be awarded. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3758        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3308 41:253b(j). June 30, 1949, ch. 288 Pub. L. 98577, title II,  201(a) Oct. 30, 1984 98 Stat. 3068 Pub. L. 103355, title I,  1064(1) Oct. 13, 1994 108 Stat. 3268 Pub. L. 104106, title XLI,  4104(b)(2) Feb. 10, 1996 110 Stat. 645  3309. Design-build selection procedures (a)  Authorization Unless the traditional acquisition approach of design-bid-build established under sections 1101 to 1104 of title 40 or another acquisition procedure authorized by law is used, the head of an executive agency shall use the two-phase selection procedures authorized in this section for entering into a contract for the design and construction of a public building, facility, or work when a determination is made under subsection (b) that the procedures are appropriate for use. (b)  Criteria for Use A contracting officer shall make a determination whether two-phase selection procedures are appropriate for use for entering into a contract for the design and construction of a public building, facility, or work when (1) the contracting officer anticipates that 3 or more offers will be received for the contract; (2) design work must be performed before an offeror can develop a price or cost proposal for the contract; (3) the offeror will incur a substantial amount of expense in preparing the offer; and (4) the contracting officer has considered information such as the following: (A) The extent to which the project requirements have been adequately defined. (B) The time constraints for delivery of the project. (C) The capability and experience of potential contractors. (D) The suitability of the project for use of the two-phase selection procedures. (E) The capability of the agency to manage the two-phase selection process. (F) Other criteria established by the agency. (c)  Procedures Described Two-phase selection procedures consist of the following: (1)  Development of scope of work statement The agency develops, either in-house or by contract, a scope of work statement for inclusion in the solicitation that defines the project and provides prospective offerors with sufficient information regarding the Federal Governments requirements (which may include criteria and preliminary design, budget parameters, and schedule or delivery requirements) to enable the offerors to submit proposals that meet the Federal Governments needs. If the agency contracts for development of the scope of work statement, the agency shall contract for architectural and engineering services as defined by and in accordance with sections 1101 to 1104 of title 40. (2)  Solicitation of phase-one proposals The contracting officer solicits phase-one proposals that (A) include information on the offerors (i) technical approach; and (ii) technical qualifications; and (B) do not include (i) detailed design information; or (ii) cost or price information. (3)  Evaluation factors The evaluation factors to be used in evaluating phase-one proposals are stated in the solicitation and include specialized experience and technical competence, capability to perform, past performance of the offerors team (including the architect-engineer and construction members of the team), and other appropriate factors, except that cost-related or price-related evaluation factors are not permitted. Each solicitation establishes the relative importance assigned to the evaluation factors and subfactors that must be considered in the evaluation of phase-one proposals. The agency evaluates phase-one proposals on the basis of the phase-one evaluation factors set forth in the solicitation. (4)  Selection by contracting officer. (A)  Number of offerors selected and what is to be evaluated The contracting officer selects as the most highly qualified the number of offerors specified in the solicitation to provide the property or services under the contract and requests the selected offerors to submit phase-two competitive proposals that include technical proposals and cost or price information. Each solicitation establishes with respect to phase two (i) the technical submission for the proposal, including design concepts or proposed solutions to requirements addressed within the scope of work, or both; and (ii) the evaluation factors and subfactors, including cost or price, that must be considered in the evaluations of proposals in accordance with subsections (b) to (d) of section 3306 of this title (B)  Separate evaluations The contracting officer separately evaluates the submissions described in clauses (i) and (ii) of subparagraph (A). (5)  Awarding of contract The agency awards the contract in accordance with chapter 37 of this title. (d)  Solicitation To State Number of Offerors To Be Selected for Phase-Two Requests for Competitive Proposals A solicitation issued pursuant to the procedures described in subsection (c) shall state the maximum number of offerors that are to be selected to submit competitive proposals pursuant to subsection (c)(4). The maximum number specified in the solicitation shall not exceed 5 unless the agency determines with respect to an individual solicitation that a specified number greater than 5 is in the Federal Governments 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. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3759        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3309 41:253m. June 30, 1949, ch. 288 Pub. L. 104106, div. D, title XLI,  4105(b)(1) Feb. 10, 1996 110 Stat. 647 In subsections (a) and (c)(1), the words sections 1101 to 1104 of title 40 are substituted for the Brooks Architect-Engineers Act (title IX of this Act) and the Brooks Architect-Engineers Act ( 40 U.S.C. 541 section 5(c) of Public Law 107217 In subsection (c)(5), the reference to section 253b of this title Statutory Notes and Related Subsidiaries Prohibition on Use of a Reverse Auction for the Award of a Contract for Complex, Specialized, or Substantial Design and Construction Services Pub. L. 116260, div. U, title IV,  402 Dec. 27, 2020 134 Stat. 2292 Pub. L. 11728,  2 July 26, 2021 135 Stat. 304  (a)  Findings Congress makes the following findings: (1) In contrast to a traditional auction in which the buyers bid up the price, sellers bid down the price in a reverse auction. (2) Reverse auctions, while providing value for the vast majority of Federal acquisitions, including certain construction-related acquisitions, are limited in value for complex, specialized, or substantial design and construction services. (b)  Reverse Auction Defined In this section, the term reverse auction means, with respect to any procurement by an executive agency, a real-time auction generally conducted through an electronic medium among two or more offerors who compete by submitting bids for a supply or service contract, or a delivery order, task order, or purchase order under the contract, with the ability to submit revised lower bids at any time before the closing of the auction. (c)  Prohibition. (1)  In general Not later than 270 days after the date of the enactment of this section [ July 26, 2021 (2)  Applicability to acquisitions above the simplified acquisition threshold The prohibition on reverse auctions for complex, specialized, or substantial design and construction services shall apply only to acquisitions above the simplified acquisition threshold (SAT) for construction and design services pursuant to part 36 of the Federal Acquisition Regulation. (d)  Rulemaking for Complex, Specialized, or Substantial Services Not later than 180 days after the date of the enactment of this section, the Federal Acquisition Regulatory Council shall promulgate a definition of complex, specialized, or substantial design and construction services, which shall include (1) site planning and landscape design; (2) architectural and engineering services (as defined in section 1102 of title 40 (3) interior design; (4) performance of substantial construction work for facility, infrastructure, and environmental restoration projects; and (5) construction or substantial alteration of public buildings or public works. (e)  Rule of Construction Nothing in this section shall be construed to restrict the use of reverse auctions for the procurement of other goods and services except as specifically provided for under this section. (f)  Report Not later than two years after the date of the enactment of this section, the Administrator of General Services shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform [now Committee on Oversight and Accountability] of the House of Representatives a report on the effectiveness of this section in delivering complex, specialized, or substantial design and construction services to the United States Government.  3310. Quantities to order (a)  Factors Affecting Quantity To Order Each executive agency shall procure supplies in a quantity that (1) will result in the total cost and unit cost most advantageous to the Federal Government, where practicable; and (2) does not exceed the quantity reasonably expected to be required by the agency. (b)  Offerors Opinion of Quantity Each solicitation for a contract for supplies shall, if practicable, include a provision inviting each offeror responding to the solicitation to state an opinion on whether the quantity of supplies proposed to be procured is economically advantageous to the Federal Government and, if applicable, to recommend a quantity that would be more economically advantageous to the Federal Government. Each recommendation shall include a quotation of the total price and the unit price for supplies procured in each recommended quantity. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3761        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3310 41:253f. June 30, 1949, ch. 288 Pub. L. 98577, title II,  205(a) Oct. 30, 1984 98 Stat. 3073 Pub. L. 99145, title XIII,  1304(c)(4)(A) Nov. 8, 1985 99 Stat. 742 In subsection (b), the words or quantities are omitted because of 1:1.  3311. Qualification requirement (a)  Definition In this section, the term qualification requirement means a requirement for testing or other quality assurance demonstration that must be completed by an offeror before award of a contract. (b)  Actions Before Enforcing Qualification Requirement Except as provided in subsection (c), the head of an agency, before enforcing any qualification requirement, shall (1) prepare a written justification stating the necessity for establishing the qualification requirement and specify why the qualification requirement must be demonstrated before contract award; (2) specify in writing and make available to a potential offeror on request all requirements that a prospective offeror, or its product, must satisfy to become qualified, with those requirements to be limited to those least restrictive to meet the purposes necessitating the establishment of the qualification requirement; (3) specify an estimate of the cost of testing and evaluation likely to be incurred by a potential offeror to become qualified; (4) ensure that a potential offeror is provided, on request, a prompt opportunity to demonstrate at its own expense (except as provided in subsection (d)) its ability to meet the standards specified for qualification using (A) qualified personnel and facilities (i) of the agency concerned; (ii) of another agency obtained through interagency agreement; or (iii) under contract; or (B) other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency); (5) if testing and evaluation services are provided under contract to the agency for the purposes of paragraph (4), provide to the extent possible that those services be provided by a contractor that (A) is not expected to benefit from an absence of additional qualified sources; and (B) is required in the contract to adhere to any restriction on technical data asserted by the potential offeror seeking qualification; and (6) ensure that a potential offeror seeking qualification is promptly informed whether qualification is attained and, if not attained, is promptly furnished specific information about why qualification was not attained. (c)  Applicability, Waiver Authority, and Referral of Offers. (1)  Applicability Subsection (b) does not apply to a qualification requirement established by statute prior to October 30, 1984 (2)  Waiver authority. (A)  Submission of determination of unreasonableness Except as provided in subparagraph (C), if it is unreasonable to specify the standards for qualification that a prospective offeror or its product must satisfy, a determination to that effect shall be submitted to the advocate for competition of the procuring activity responsible for the purchase of the item subject to the qualification requirement. (B)  Authority to grant waiver After considering any comments of the advocate for competition reviewing the determination, the head of the procuring activity may waive the requirements of paragraphs (2) to (5) of subsection (b) for up to 2 years with respect to the item subject to the qualification requirement. (C)  Nonapplicability to qualified products list Waiver authority under this paragraph does not apply with respect to a qualified products list. (3)  Submission and consideration of offer not to be denied A potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror has not been identified as meeting a qualification requirement if the potential offeror can demonstrate to the satisfaction of the contracting officer that the potential offeror or its product meets the standards established for qualification or can meet those standards before the date specified for award of the contract. (4)  Referral to small business administration not required This subsection does not require the referral of an offer to the Small Business Administration pursuant to section 8(b)(7) of the Small Business Act ( 15 U.S.C. 637(b)(7) (5)  Delay of procurement not required The head of an agency need not delay a proposed procurement to comply with subsection (b) or to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification. (d)  Fewer Than Actual Manufacturers. (1)  Solicitation and testing of additional sources or products If the number of qualified sources or qualified products available to compete actively for an anticipated future requirement is fewer than 2 actual manufacturers or the products of 2 actual manufacturers, respectively, the head of the agency concerned shall (A) publish notice periodically soliciting additional sources or products to seek qualification, unless the contracting officer determines that doing so would compromise national security; and (B) subject to paragraph (2), bear the cost of conducting the specified testing and evaluation (excluding the cost associated with producing the item or establishing the production, quality control, or other system to be tested and evaluated) for a small business concern or a product manufactured by a small business concern that has met the standards specified for qualification and that could reasonably be expected to compete for a contract for that requirement. (2)  When agency may bear cost The head of the agency concerned may bear the cost under paragraph (1)(B) only if the head of the agency determines that the additional qualified sources or products are likely to result in cost savings from increased competition for future requirements sufficient to offset (within a reasonable period of time considering the duration and dollar value of anticipated future requirements) the cost incurred by the agency. (3)  Certification required The head of the agency shall require a prospective contractor requesting the Federal Government to bear testing and evaluation costs under paragraph (1)(B) to certify its status as a small business concern under section 3 of the Small Business Act ( 15 U.S.C. 632 (e)  Examination and Revalidation of Qualification Requirement Within 7 years after the establishment of a qualification requirement, the need for the requirement shall be examined and the standards of the requirement revalidated in accordance with the requirements of subsection (b). This subsection does not apply in the case of a qualification requirement for which a waiver is in effect under subsection (c)(2). (f)  When Enforcement of Qualification Requirement Not Allowed Except in an emergency as determined by the head of the agency, after the head of the agency determines not to enforce a qualification requirement for a solicitation, the agency may not enforce the requirement unless the agency complies with the requirements of subsection (b). ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3761        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3311 41:253c. June 30, 1949, ch. 288 Pub. L. 98577, title II,  202(a) Oct. 30, 1984 98 Stat. 3069 Pub. L. 99145, title XIII,  1304(c)(4)(A) Nov. 8, 1985 99 Stat. 742 In subsection (d)(1)(A), the words in the Commerce Business Daily are omitted as obsolete. See revision note for section 1708(d) of the revised title.  3312. Database on price trends of items and services under Federal contracts (a)  Database Required The Administrator shall establish and maintain a database of information on price trends for items and services under contracts with the Federal Government. The information in the database shall be designed to assist Federal acquisition officials in the following: (1) Monitoring developments in price trends for items and services under contracts with the Federal Government. (2) Conducting price or cost analyses for items and services under offers for contracts with the Federal Government, or otherwise conducting determinations of the reasonableness of prices for items and services under such offers, and addressing unjustified escalation in prices being paid by the Federal Government for items and services under contracts with the Federal Government. (b)  Use (1) The database under subsection (a) shall be available to executive agencies in the evaluation of offers for contracts with the Federal Government for items and services. (2) The Secretary of Defense may satisfy the requirements of this section by complying with the requirements of section 892 1 1 10 U.S.C. 2306a (Added Pub. L. 112239, div. A, title VIII,  851(a)(1) Jan. 2, 2013 126 Stat. 1855  Editorial Notes  References in Text Section 892 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011, referred to in subsec. (b)(2), is section 892 of Pub. L. 111383 section 2306a of Title 10 Pub. L. 11492, div. A, title X,  1073(f) Nov. 25, 2015 129 Stat. 996 Statutory Notes and Related Subsidiaries Use of Elements of Department of Defense Pilot Project Pub. L. 112239, div. A, title VIII,  851(b) Jan. 2, 2013 126 Stat. 1855 In establishing the database required by section 3312 of title 41 Pub. L. 111383 10 U.S.C. 2306a CHAPTER 35 TRUTHFUL COST OR PRICING DATA    Sec.  3501. General.  3502. Required cost or pricing data and certification.  3503. Exceptions.  3504. Cost or pricing data on below-threshold contracts.  3505. Submission of other information.  3506. Price reductions for defective cost or pricing data.  3507. Interest and penalties for certain overpayments.  3508. Right to examine contractor records.  3509. Notification of violations of Federal criminal law or overpayments.  Senate Revision Amendment In chapter 35 heading, OR substituted for AND by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18683 (2010).  3501. General (a)  Definitions In this chapter: (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 section 3506(a)(2) of this title (2)  Subcontract The term subcontract includes a transfer of commercial products or commercial services between divisions, subsidiaries, or affiliates of a contractor or a subcontractor. (b)  Regulations. (1)  Minimizing abuse of commercial services authority The Federal Acquisition Regulation shall ensure that services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace, may be treated as commercial services for purposes of this chapter only if the contracting officer determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for the services. (2)  Information to submit To the extent necessary to make a determination under paragraph (1), the contracting officer may request the offeror to submit (A) prices paid for the same or similar commercial services under comparable terms and conditions by both government and commercial customers; and (B) if the contracting officer determines that the information described in subparagraph (A) is not sufficient to determine the reasonableness of price, other relevant information regarding the basis for price or cost, including information on labor costs, material costs, and overhead rates. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3764 Pub. L. 115232, div. A, title VIII,  836(b)(11) Aug. 13, 2018 132 Stat. 1863        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3501(a) 41:254b(h). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1251(a)(2) Oct. 13, 1994 108 Stat. 3284 Pub. L. 104106, title XLII,  4201(b)(2)(B) Feb. 10, 1996 110 Stat. 652 3501(b) 41:254b note. Pub. L. 110417 Oct. 14, 2008 122 Stat. 4552 Subsection (a) of Pub. L. 110417,  868 In subsection (b)(1), the words The Federal Acquisition Regulation are substituted for The regulations modified pursuant to subsection (a) for clarity and conformity with the revised title. Editorial Notes Amendments 2018Subsec. (a). Pub. L. 115232,  836(b)(11)(A) Subsec. (b)(1). Pub. L. 115232,  836(b)(11)(B) Subsec. (b)(2)(A). Pub. L. 115232,  836(b)(11)(B)(ii) Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  3502. Required cost or pricing data and certification (a)  When Required The head of an executive agency shall require offerors, contractors, and subcontractors to make cost or pricing data available as follows: (1)  Offeror for prime contract An offeror for a prime contract under this division to be entered into using procedures other than sealed-bid procedures shall be required to submit cost or pricing data before the award of a contract if (A) in the case of a prime contract entered into after June 30, 2018 (B) in the case of a prime contract entered into on or before June 30, 2018 (2)  Contractor The contractor for a prime contract under this division shall be required to submit cost or pricing data before the pricing of a change or modification to the contract if (A) in the case of a change or modification made to a prime contract referred to in paragraph (1)(A), the price adjustment is expected to exceed $2,000,000; (B) in the case of a change or modification made to a prime contract that was entered into on or before June 30, 2018 (C) in the case of a change or modification not covered by subparagraph (A) or (B), the price adjustment is expected to exceed $750,000. (3)  Offeror for subcontract An offeror for a subcontract (at any tier) of a contract under this division shall be required to submit cost or pricing data before the award of the subcontract if the prime contractor and each higher-tier subcontractor have been required to make available cost or pricing data under this chapter and (A) in the case of a subcontract under a prime contract referred to in paragraph (1)(A), the price of the subcontract is expected to exceed $2,000,000; (B) in the case of a subcontract entered into under a prime contract that was entered into on or before June 30, 2018 (C) in the case of a subcontract not covered by subparagraph (A) or (B), the price of the subcontract is expected to exceed $750,000. (4)  Subcontractor The subcontractor for a subcontract covered by paragraph (3) shall be required to submit cost or pricing data before the pricing of a change or modification to the subcontract if (A) in the case of a change or modification to a subcontract referred to in paragraph (3)(A) or (B), the price adjustment is expected to exceed $2,000,000; and (B) in the case of a change or modification to a subcontract referred to in paragraph (3)(C), the price adjustment is expected to exceed $750,000. (b)  Certification A person required, as an offeror, contractor, or subcontractor, to submit cost or pricing data under subsection (a) (or required by the head of the procuring activity concerned to submit the data under section 3504 of this title (c)  To Whom Submitted Cost or pricing data required to be submitted under subsection (a) (or under section 3504 of this title (1) in the case of a submission by a prime contractor (or an offeror for a prime contract), to the contracting officer for the contract (or a designated representative of the contracting officer); or (2) in the case of a submission by a subcontractor (or an offeror for a subcontract), to the prime contractor. (d)  Application of Chapter Except as provided under section 3503 of this title (e)  Subcontracts Not Affected by Waiver A waiver of requirements for submission of certified cost or pricing data that is granted under section 3503(a)(3) of this title (f)  Modifications to Prior Contracts On the request of a contractor that was required to submit cost or pricing data under subsection (a) in connection with a prime contract entered into on or before June 30, 2018 (g)  Adjustment of Amounts Effective on October 1 of each year that is divisible by 5, each amount set forth in subsection (a) shall be adjusted in accordance with section 1908. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3765 Pub. L. 11591, div. A, title VIII,  811(a)(2) Dec. 12, 2017 131 Stat. 1459        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3502 41:254b(a). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1251(a)(2) Oct. 13, 1994 108 Stat. 3278 Pub. L. 105261, div. A, title VIII,  805(b) Oct. 17, 1998 112 Stat. 2083 Editorial Notes Amendments 2017Subsec. (a). Pub. L. 11591,  811(a)(2)(A)(i) June 30, 2018 October 13, 1994 Subsec. (a)(1)(A), (2)(A). Pub. L. 11591,  811(a)(2)(A)(iii) Subsec. (a)(2)(B). Pub. L. 11591,  811(a)(2)(A)(iv) Subsec. (a)(3)(A), (B), (4)(A). Pub. L. 11591,  811(a)(2)(A)(iii) Subsec. (f). Pub. L. 11591,  811(a)(2)(B) June 30, 2018 October 13, 1994 Subsec. (g). Pub. L. 11591,  811(a)(2)(C)  3503. Exceptions (a)  In General Submission of certified cost or pricing data shall not be required under section 3502 of this title (1) for which the price agreed on is based on (A) adequate price competition; or (B) prices set by law or regulation; (2) for the acquisition of a commercial product or a commercial service; or (3) in an exceptional case when the head of the procuring activity, without delegation, determines that the requirements of this chapter may be waived and justifies in writing the reasons for the determination. (b)  Modifications of Contracts and Subcontracts for Commercial Products or Commercial Services In the case of a modification of a contract or subcontract for a commercial product or a commercial service that is not covered by the exception to the submission of certified cost or pricing data in paragraph (1) or (2) of subsection (a), submission of certified cost or pricing data shall not be required under section 3502 of this title (1) the contract or subcontract being modified is a contract or subcontract for which submission of certified cost or pricing data may not be required by reason of paragraph (1) or (2) of subsection (a); and (2) the modification would not change the contract or subcontract from a contract or subcontract for the acquisition of a commercial product or a commercial service to a contract or subcontract for the acquisition of an item other than a commercial product or a commercial service. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3766 Pub. L. 115232, div. A, title VIII,  836(b)(12) Aug. 13, 2018 132 Stat. 1863        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3503 41:254b(b). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1251(a)(2) Oct. 13, 1994 108 Stat. 3279 Pub. L. 104106, title XLII,  4201(b)(1) Feb. 10, 1996 110 Stat. 651 In subsection (b)(2), the words as the case may be are omitted as unnecessary. Editorial Notes Amendments 2018Subsec. (a)(2). Pub. L. 115232,  836(b)(12)(A) Subsec. (b). Pub. L. 115232,  836(b)(12)(B) Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  3504. Cost or pricing data on below-threshold contracts (a)  Authority To Require Submission Subject to subsection (b), when certified cost or pricing data are not required to be submitted by section 3502 of this title (b)  Exception The head of the procuring activity may not require certified cost or pricing data to be submitted under this section for any contract or subcontract, or modification of a contract or subcontract, covered by the exceptions in section 3503(a)(1) or (2) of this title. (c)  Delegation of Authority Prohibited The head of a procuring activity may not delegate the functions under this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3767        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3504 41:254b(c). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1251(a)(2) Oct. 13, 1994 108 Stat. 3280 Pub. L. 104106, title XLII Feb. 10, 1996 110 Stat. 651  3505. Submission of other information (a)  Authority To Require Submission When certified cost or pricing data are not required to be submitted under this chapter for a contract, subcontract, or modification of a contract or subcontract, the contracting officer shall require submission of data other than certified cost or pricing data to the extent necessary to determine the reasonableness of the price of the contract, subcontract, or modification of the contract or subcontract. Except in the case of a contract or subcontract covered by the exceptions in section 3503(a)(1) of this title (b)  Limitations on Authority The Federal Acquisition Regulation shall include the following provisions regarding the types of information that contracting officers may require under subsection (a): (1)  Reasonable limitations Reasonable limitations on requests for sales data relating to commercial products or commercial services. (2)  Limitation on scope of request A requirement that a contracting officer limit, to the maximum extent practicable, the scope of any request for information relating to commercial products or commercial services from an offeror to only that information that is in the form regularly maintained by the offeror in commercial operations. (3)  Information not to be disclosed A statement that any information received relating to commercial products or commercial services that is exempt from disclosure under section 552(b) of title 5 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3767 Pub. L. 115232, div. A, title VIII,  836(b)(13) Aug. 13, 2018 132 Stat. 1863        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3505 41:254b(d). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1251(a)(2) Oct. 13, 1994 108 Stat. 3281 Pub. L. 104106, title XLII Feb. 10, 1996 110 Stat. 652 Pub. L. 105261, div. A, title VIII,  808(b) Oct. 17, 1998 112 Stat. 2085 Editorial Notes Amendments 2018Subsec. (b). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  3506. Price reductions for defective cost or pricing data (a)  Provision Requiring Adjustment. (1)  In general A prime contract (or change or modification to a prime contract) under which a certificate under section 3502(b) of this title (2)  What constitutes defective cost or pricing data For the purposes of this chapter, defective cost or pricing data are cost or pricing data that, as of the date of agreement on the price of the contract (or another date agreed on between the parties), were inaccurate, incomplete, or noncurrent. If for purposes of the preceding sentence the parties agree on a date other than the date of agreement on the price of the contract, the date agreed on by the parties shall be as close to the date of agreement on the price of the contract as is practicable. (b)  Valid Defense In determining for purposes of a contract price adjustment under a contract provision required by subsection (a) whether, and to what extent, a contract price was increased because the contractor (or a subcontractor) submitted defective cost or pricing data, it is a defense that the Federal Government did not rely on the defective data submitted by the contractor or subcontractor. (c)  Invalid Defenses It is not a defense to an adjustment of the price of a contract under a contract provision required by subsection (a) that (1) the price of the contract would not have been modified even if accurate, complete, and current cost or pricing data had been submitted by the contractor or subcontractor because the contractor or subcontractor (A) was the sole source of the property or services procured; or (B) otherwise was in a superior bargaining position with respect to the property or services procured; (2) the contracting officer should have known that the cost or pricing data in issue were defective even though the contractor or subcontractor took no affirmative action to bring the character of the data to the attention of the contracting officer; (3) the contract was based on an agreement between the contractor and the Federal Government about the total cost of the contract and there was no agreement about the cost of each item procured under the contract; or (4) the prime contractor or subcontractor did not submit a certification of cost or pricing data relating to the contract as required by section 3502(b) of this title (d)  Offsets. (1)  When allowed A contractor shall be allowed to offset an amount against the amount of a contract price adjustment under a contract provision required by subsection (a) if (A) the contractor certifies to the contracting officer (or to a designated representative of the contracting officer) that, to the best of the contractors knowledge and belief, the contractor is entitled to the offset; and (B) the contractor proves that the cost or pricing data were available before the date of agreement on the price of the contract (or price of the modification), or, if applicable, consistent with subsection (a)(2), another date agreed on by the parties, and that the data were not submitted as specified in section 3502(c) of this title (2)  When not allowed A contractor shall not be allowed to offset an amount otherwise authorized to be offset under paragraph (1) if (A) the certification under section 3502(b) of this title (B) the Federal Government proves that, had the cost or pricing data referred to in paragraph (1)(B) been submitted to the Federal Government before date of agreement on the price of the contract (or price of the modification), or, if applicable, under subsection (a)(2), another date agreed on by the parties, the submission of the cost or pricing data would not have resulted in an increase in that price in the amount to be offset. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3768        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3506 41:254b(e). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1251(a)(2) Oct. 13, 1994 108 Stat. 3282  3507. Interest and penalties for certain overpayments (a)  In General If the Federal Government makes an overpayment to a contractor under a contract with an executive agency subject to this chapter and the overpayment was due to the submission by the contractor of defective cost or pricing data, the contractor shall be liable to the Federal Government (1) for interest on the amount of the overpayment, to be computed (A) for the period beginning on the date the overpayment was made to the contractor and ending on the date the contractor repays the amount of the overpayment to the Federal Government; and (B) at the current rate prescribed by the Secretary of the Treasury under section 6621 of the Internal Revenue Code of 1986 ( 26 U.S.C. 6621 (2) if the submission of the defective data was a knowing submission, for an additional amount equal to the amount of the overpayment. (b)  Liability Not Affected by Refusal To Submit Certification Any liability under this section of a contractor that submits cost or pricing data but refuses to submit the certification required by section 3502(b) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3769        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3507 41:254b(f). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1251(a)(2) Oct. 13, 1994 108 Stat. 3283  3508. Right to examine contractor records  For the purpose of evaluating the accuracy, completeness, and currency of cost or pricing data required to be submitted by this chapter, an executive agency shall have the authority provided by section 4706(b)(2) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3770        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3508 41:254b(g). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1251(a)(2) Oct. 13, 1994 108 Stat. 3283  3509. Notification of violations of Federal criminal law or overpayments (a)  Definition In this section, the term covered contract means any contract in an amount greater than $5,000,000 and more than 120 days in duration. (b)  Federal Acquisition Regulation The Federal Acquisition Regulation shall include, pursuant to FAR Case 2007006 (as published at 72 Fed. Reg. 64019, November 14, 2007 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3770 Pub. L. 115232, div. A, title VIII,  836(b)(14) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3509 41:251 note. Pub. L. 110252, title VI June 30, 2008 122 Stat. 2386 In subsection (b), the words shall include are substituted for shall be amended and to include to reflect the permanence of the provision. The words within 180 days after the date of the enactment of this Act are omitted as obsolete. Editorial Notes Amendments 2018Subsec. (b). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6 CHAPTER 37 AWARDING OF CONTRACTS    Sec.  3701. Basis of award and rejection.  3702. Sealed bids.  3703. Competitive proposals.  3704. Post-award debriefings.  3705. Pre-award debriefings.  3706. Encouragement of alternative dispute resolution.  3707. Antitrust violations.  3708. Protests.  3701. Basis of award and rejection (a)  Award An executive agency shall evaluate sealed bids and competitive proposals, and award a contract, based solely on the factors specified in the solicitation. (b)  Rejection All sealed bids or competitive proposals received in response to a solicitation may be rejected if the agency head determines that rejection is in the public interest. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3770        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3701(a) 41:253b(a). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(2) July 18, 1984 98 Stat. 1179 Pub. L. 103355, title I,  1061(c)(1) Oct. 13, 1994 108 Stat. 3267 3701(b) 41:253b(b). Statutory Notes and Related Subsidiaries Use of Lowest Price Technically Acceptable Source Selection Process Pub. L. 115232, div. A, title VIII,  880 Aug. 13, 2018 132 Stat. 1909 Pub. L. 11692, div. A, title VIII,  806(a)(2) Dec. 20, 2019 133 Stat. 1485  (a)  Statement of Policy It shall be the policy of the United States Government to avoid using lowest price technically acceptable source selection criteria in circumstances that would deny the Government the benefits of cost and technical tradeoffs in the source selection process. (b)  Revision of Federal Acquisition Regulation Not later than 120 days after the date of the enactment of this Act [ Aug. 13, 2018 (1) an executive agency is able to comprehensively and clearly describe the minimum requirements expressed in terms of performance objectives, measures, and standards that will be used to determine acceptability of offers; (2) the executive agency would realize no, or minimal, value from a contract proposal exceeding the minimum technical or performance requirements set forth in the request for proposal; (3) the proposed technical approaches will require no, or minimal, subjective judgment by the source selection authority as to the desirability of one offerors proposal versus a competing proposal; (4) the executive agency has a high degree of confidence that a review of technical proposals of offerors other than the lowest bidder would not result in the identification of factors that could provide value or benefit to the executive agency; (5) the contracting officer has included a justification for the use of a lowest price technically acceptable evaluation methodology in the contract file; and (6) the executive agency has determined that the lowest price reflects full life-cycle costs, including for operations and support. (c)  Avoidance of Use of Lowest Price Technically Acceptable Source Selection Criteria in Certain Procurements To the maximum extent practicable, the use of lowest price technically acceptable source selection criteria shall be avoided in the case of a procurement that is predominately for the acquisition of (1) information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, audit or audit readiness services, health care services and records, telecommunications devices and services, or other knowledge-based professional services; (2) personal protective equipment; or (3) knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq. (d)  Definitions In this section: (1)  Executive agency The term executive agency has the meaning given that term in section 102 of title 40 (2)  Contingency operation The term contingency operation has the meaning given that term in section 101 of title 10 (3)  Appropriate congressional committees The term appropriate congressional committees means the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate. Congressional Statement of Purpose Pub. L. 98577, title I,  101 Oct. 30, 1984 98 Stat. 3066  The purposes of this Act [see Tables for classification] are to (1) eliminate procurement procedures and practices that unnecessarily inhibit full and open competition for contracts; (2) promote the use of contracting opportunities as a means to expand the industrial base of the United States in order to ensure adequate responsive capability of the economy to the increased demands of the Government in times of national emergency; and (3) foster opportunities for the increased participation in the competitive procurement process of small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals. Executive Documents  Ex. Ord. No. 12979. Agency Procurement Protests Ex. Ord. No. 12979, Oct. 25, 1995 By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to ensure effective and efficient expenditure of public funds and fair and expeditious resolution of protests to the award of Federal procurement contracts, it is hereby ordered as follows: Section (a) emphasize that whenever conduct of a procurement is contested, all parties should use their best efforts to resolve the matter with agency contracting officers; (b) to the maximum extent practicable, provide for inexpensive, informal, procedurally simple, and expeditious resolution of protests, including, where appropriate and as permitted by law, the use of alternative dispute resolution techniques, third party neutrals, and another agencys personnel; (c) allow actual or prospective bidders or offerors whose direct economic interests would be affected by the award or failure to award the contract to request a review, at a level above the contracting officer, of any decision by a contracting officer that is alleged to have violated a statute or regulation and, thereby, caused prejudice to the protester; and (d) except where immediate contract award or performance is justified for urgent and compelling reasons or is determined to be in the best interest of the United States, prohibit award or performance of the contract while a timely filed protest is pending before the agency. To allow for the withholding of a contract award or performance, the agency must have received notice of the protest within either 10 calendar days after the contract award or 5 calendar days after the bidder or offeror who is protesting the contract award was given the opportunity to be debriefed by the agency, whichever date is later. Sec (b) review and evaluate agency experience and performance under this order, and report on any findings to the President within 2 years from the date of this order. Sec  William J. Clinton.  3702. Sealed bids (a)  Opening of Bids Sealed bids shall be opened publicly at the time and place stated in the solicitation. (b)  Criteria for Awarding Contract The executive agency shall evaluate the bids in accordance with section 3701(a) of this title section 3701(b) of this title (c)  Notice of Award The award of a contract shall be made by transmitting, in writing or by electronic means, notice of the award to the successful bidder. Within 3 days after the date of contract award, the executive agency shall notify, in writing or by electronic means, each bidder not awarded the contract that the contract has been awarded. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3770        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3702(a) 41:253b(c) (1st sentence). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(2) July 18, 1984 98 Stat. 1179 Pub. L. 103355, title I Oct. 13, 1994 108 Stat. 3267 3702(b) 41:253b(c) (2d sentence). 3702(a) 41:253b(c) (3d, last sentences).  3703. Competitive proposals (a)  Evaluation and Award An executive agency shall evaluate competitive proposals in accordance with section 3701(a) of this title (1) after discussions with the offerors, provided that written or oral discussions have been conducted with all responsible offerors who submit proposals within the competitive range; or (2) based on the proposals received and without discussions with the offerors (other than discussions conducted for the purpose of minor clarification), if, as required by section 3306(b)(2)(B)(i) of this title (b)  Limit on Number of Proposals If the contracting officer determines that the number of offerors that would otherwise be included in the competitive range under subsection (a)(1) exceeds the number at which an efficient competition can be conducted, the contracting officer may limit the number of proposals in the competitive range, in accordance with the criteria specified in the solicitation, to the greatest number that will permit an efficient competition among the offerors rated most highly in accordance with those criteria. (c)  Criteria for Awarding Contract Except as otherwise provided in section 3701(b) of this title (d)  Notice of Award The executive agency shall award the contract by transmitting, in writing or by electronic means, notice of the award to that source and, within 3 days after the date of contract award, shall notify, in writing or by electronic means, all other offerors of the rejection of their proposals. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3771        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3703(a) 41:253b(d)(1). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(2) July 18, 1984 98 Stat. 1180 Pub. L. 103355, title I Oct. 13, 1994 108 Stat. 3267 Pub. L. 104106, title XLI,  4103(b) Feb. 10, 1996 110 Stat. 644 3703(b) 41:253b(d)(2). 3703(c) 41:253b(d)(3) (1st sentence). 3703(d) 41:253b(d)(3) (last sentence).  3704. Post-award debriefings (a)  Request for Debriefing When a contract is awarded by the head of an executive agency on the basis of competitive proposals, an unsuccessful offeror, on written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award. (b)  When Debriefing To Be Conducted The executive agency shall debrief the offeror within, to the maximum extent practicable, 5 days after receipt of the request by the executive agency. (c)  Information To Be Provided The debriefing shall include, at a minimum (1) the executive agencys evaluation of the significant weak or deficient factors in the offerors offer; (2) the overall evaluated cost and technical rating of the offer of the contractor awarded the contract and the overall evaluated cost and technical rating of the offer of the debriefed offeror; (3) the overall ranking of all offers; (4) a summary of the rationale for the award; (5) in the case of a proposal that includes a commercial product that is an end item under the contract, the make and model of the item being provided in accordance with the offer of the contractor awarded the contract; and (6) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency. (d)  Information Not To Be Included The debriefing may not include point-by-point comparisons of the debriefed offerors offer with other offers and may not disclose any information that is exempt from disclosure under section 552(b) of title 5 (e)  Inclusion of Statement in Solicitation Each solicitation for competitive proposals shall include a statement that information described in subsection (c) may be disclosed in post-award debriefings. (f)  After Successful Protest If, within one year after the date of the contract award and as a result of a successful procurement protest, the executive agency seeks to fulfill the requirement under the protested contract either on the basis of a new solicitation of offers or on the basis of new best and final offers requested for that contract, the head of the executive agency shall make available to all offerors (1) the information provided in debriefings under this section regarding the offer of the contractor awarded the contract; and (2) the same information that would have been provided to the original offerors. (g)  Summary To Be Included in File The contracting officer shall include a summary of the debriefing in the contract file. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3771 Pub. L. 115232, div. A, title VIII,  836(b)(15) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3704(a) 41:253b(e)(1) (1st sentence). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1064(2) Oct. 13, 1994 108 Stat. 3268 Pub. L. 104106, title XLI,  4104(b)(1) Feb. 10, 1996 110 Stat. 645 3704(b) 41:253b(e)(1) (last sentence). 3704(c) 41:253b(e)(2). 3704(d) 41:253b(e)(3). 3704(e) 41:253b(e)(4). 3704(f) 41:253b(e)(5). 3704(g) 41:253b(g) (related to 41:253b(e)). June 30, 1949, ch. 288 Pub. L. 104106, title XLI,  4104(b)(3) Feb. 10, 1996 110 Stat. 645 Editorial Notes Amendments 2018Subsec. (c)(5). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  3705. Pre-award debriefings (a)  Request for Debriefing When the contracting officer excludes an offeror submitting a competitive proposal from the competitive range (or otherwise excludes that offeror from further consideration prior to the final source selection decision), the excluded offeror may request in writing, within 3 days after the date on which the excluded offeror receives notice of its exclusion, a debriefing prior to award. (b)  When Debriefing To Be Conducted The contracting officer shall make every effort to debrief the unsuccessful offeror as soon as practicable but may refuse the request for a debriefing if it is not in the best interests of the Federal Government to conduct a debriefing at that time. (c)  Precondition for Post-Award Debriefing The contracting officer is required to debrief an excluded offeror in accordance with section 3704 of this title (d)  Information To Be Provided The debriefing conducted under this section shall include (1) the executive agencys evaluation of the significant elements in the offerors offer; (2) a summary of the rationale for the offerors exclusion; and (3) reasonable responses to relevant questions posed by the debriefed offeror as to whether source selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the executive agency. (e)  Information Not To Be Disclosed The debriefing conducted pursuant to this section may not disclose the number or identity of other offerors and shall not disclose information about the content, ranking, or evaluation of other offerors proposals. (f)  Summary To Be Included in File The contracting officer shall include a summary of the debriefing in the contract file. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3772        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3705(a) 41:253b(f)(1) (1st sentence). June 30, 1949, ch. 288 Pub. L. 104106, title XLI,  4104(b)(3) Feb. 10, 1996 110 Stat. 645 3705(b) 41:253b(f)(1) (last sentence). 3705(c) 41:253b(f)(2). 3705(d) 41:253b(f)(3). 3705(e) 41:253b(f)(4). 3705(f) 41:253b(g) (related to 41:253b(f)).  3706. Encouragement of alternative dispute resolution  The Federal Acquisition Regulation shall include a provision encouraging the use of alternative dispute resolution techniques to provide informal, expeditious, and inexpensive procedures for an offeror to consider using before filing a protest, prior to the award of a contract, of the exclusion of the offeror from the competitive range (or otherwise from further consideration) for that contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3773        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3706 41:253b(h). June 30, 1949, ch. 288 Pub. L. 104106, title XLI,  4104(b)(3) Feb. 10, 1996 110 Stat. 645  3707. Antitrust violations  If the agency head considers that a bid or proposal evidences a violation of the antitrust laws, the agency head shall refer the bid or proposal to the Attorney General for appropriate action. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3773        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3707 41:253b(i). June 30, 1949, ch. 288 Pub. L. 98369, title VII,  2711(a)(2) July 18, 1984 98 Stat. 1180 Pub. L. 103355, title I,  1064(1) Oct. 13, 1994 108 Stat. 3268 Pub. L. 104106, title XLI,  4104(b)(2) Feb. 10, 1996 110 Stat. 645  3708. Protests (a)  Protest File. (1)  Establishment and access If, in the case of a solicitation for a contract issued by, or an award or proposed award of a contract by, the head of an executive agency, a protest is filed pursuant to the procedures in subchapter V of chapter 35 of title 31, and an actual or prospective offeror requests, a file of the protest shall be established by the procuring activity and reasonable access shall be provided to actual or prospective offerors. (2)  Redacted information Information exempt from disclosure under section 552 of title 5 (b)  Agency Actions on Protests If, in connection with a protest, the head of an executive agency determines that a solicitation, proposed award, or award does not comply with the requirements of law or regulation, the head of the executive agency may (1) take any action set out in subparagraphs (A) to (F) of subsection (b)(1) of section 3554 of title 31 (2) pay costs described in paragraph (1) of section 3554(c) of title 31 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3773        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3708(a) 41:253b(k). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1065 Oct. 13, 1994 108 Stat. 3269 Pub. L. 104106, title XLI,  4104(b)(2) Feb. 10, 1996 110 Stat. 645 Pub. L. 104106, title XLI,  5607(c) Feb. 10, 1996 110 Stat. 701 Pub. L. 104201, title X,  1074(b)(7) Sept. 23, 1996 110 Stat. 2660 3708(b) 41:253b( l June 30, 1949, ch. 288 l Pub. L. 103355, title I,  1066 Oct. 13, 1994 108 Stat. 3269 l Pub. L. 104106, title XLI,  4104(b)(2) Feb. 10, 1996 110 Stat. 645 CHAPTER 39 SPECIFIC TYPES OF CONTRACTS    Sec.  3901. Contracts awarded using procedures other than sealed-bid procedures.  3902. Severable services contracts for periods crossing fiscal years.  3903. Multiyear contracts.  3904. Contract authority for severable services contracts and multiyear contracts.  3905. Cost contracts.  3906. Cost-reimbursement contracts.  Statutory Notes and Related Subsidiaries Separability Act June 30, 1949, ch. 288, title VI,  604 63 Stat. 403 act Sept. 5, 1950, ch. 849,  6(a) 64 Stat. 583 If any provision of this Act [see Tables for classification], or the application thereof to any person or circumstances, is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances, shall not be affected thereby. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment Pub. L. 115232, div. A, title VIII,  889 Aug. 13, 2018 132 Stat. 1917 Pub. L. 116283, div. A, title X,  1081(d)(5) Jan. 1, 2021 134 Stat. 3874  (a)  Prohibition on Use or Procurement (1) The head of an executive agency may not (A) procure or obtain or extend or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or (B) enter into a contract (or extend or renew a contract) with an entity that uses any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. (2) Nothing in paragraph (1) shall be construed to (A) prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or (B) cover telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles. (b)  Prohibition on Loan and Grant Funds (1) The head of an executive agency may not obligate or expend loan or grant funds to procure or obtain, extend or renew a contract to procure or obtain, or enter into a contract (or extend or renew a contract) to procure or obtain the equipment, services, or systems described in subsection (a). (2) In implementing the prohibition in paragraph (1), heads of executive agencies administering loan, grant, or subsidy programs, including the heads of the Federal Communications Commission, the Department of Agriculture, the Department of Homeland Security, the Small Business Administration, and the Department of Commerce, shall prioritize available funding and technical support to assist affected businesses, institutions and organizations as is reasonably necessary for those affected entities to transition from covered communications equipment and services, to procure replacement equipment and services, and to ensure that communications service to users and customers is sustained. (3) Nothing in this subsection shall be construed to (A) prohibit the head of an executive agency from procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or (B) cover telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles. (c)  Effective Dates The prohibition under subsection (a)(1)(A) shall take effect one year after the date of the enactment of this Act [ Aug. 13, 2018 (d)  Waiver Authority. (1)  Executive agencies The head of an executive agency may, on a one-time basis, waive the requirements under subsection (a) with respect to an entity that requests such a waiver. The waiver may be provided, for a period of not more than two years after the effective dates described in subsection (c), if the entity seeking the waiver (A) provides a compelling justification for the additional time to implement the requirements under such subsection, as determined by the head of the executive agency; and (B) submits to the head of the executive agency, who shall not later than 30 days thereafter submit to the appropriate congressional committees, a full and complete laydown of the presences of covered telecommunications or video surveillance equipment or services in the entitys supply chain and a phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the entitys systems. (2)  Director of national intelligence The Director of National Intelligence may provide a waiver on a date later than the effective dates described in subsection (c) if the Director determines the waiver is in the national security interests of the United States. (f)  Definitions In this section: (1)  Appropriate congressional committees The term appropriate congressional committees means (A) the Committee on Banking, Housing, and Urban Affairs, the Committee on Foreign Relations, and the Committee on Homeland Security and Governmental Affairs of the Senate; and (B) the Committee on Financial Services, the Committee on Foreign Affairs, and the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives. (2)  Covered foreign country The term covered foreign country means the Peoples Republic of China. (3)  Covered telecommunications equipment or services The term covered telecommunications equipment or services means any of the following: (A) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (B) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). (C) Telecommunications or video surveillance services provided by such entities or using such equipment. (D) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. (4)  Executive agency The term executive agency has the meaning given the term in section 133 of title 41 [ Pub. L. 116283, div. A, title X,  1081(d) Jan. 1, 2021 134 Stat. 3873 section 1081(d)(5) of Pub. L. 116283 section 889 of Pub. L. 115232 Aug. 13, 2018 Pub. L. 115232 Share-in-Savings Contracts Act June 30, 1949, ch. 288, title III,  317 Pub. L. 107347, title II,  210(b) Dec. 17, 2002 116 Stat. 2934  (a)  Authority To Enter Into Share-in-Savings Contracts (1) The head of an executive agency may enter into a share-in-savings contract for information technology (as defined in section 11101(6) of title 40 (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 executive agency may enter into share-in-savings contracts under this section in any given fiscal year even if funds are not made specifically available for the full costs of cancellation or termination of the contract if funds are available and sufficient to make payments with respect to the first fiscal year of the contract and the following conditions are met regarding the funding of cancellation and termination liability: (i) The amount of unfunded contingent liability for the contract does not exceed the lesser of (I) 25 percent of the estimated costs of a cancellation or termination; or (II) $5,000,000. (ii) Unfunded contingent liability in excess of $1,000,000 has been approved by the Director of the Office of Management and Budget or the Directors designee. (B) The aggregate number of share-in-savings contracts that may be entered into under subparagraph (A) by all executive agencies to which this chapter applies in a fiscal year may not exceed 5 in each of fiscal years 2003, 2004, and 2005. (c)  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 agencys 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 Executive Documents  Ex. Ord. No. 13496. Notification of Employee Rights Under Federal Labor Laws Ex. Ord. No. 13496, Jan. 30, 2009 By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq Section Policy 29 U.S.C. 151 et seq 29 U.S.C. 151 Sec Contract Clause 5 U.S.C. 7103(a)(8) 41 U.S.C. 403 1. During the term of this contract, the contractor agrees to post a notice, of such size and in such form, and containing such content as the Secretary of Labor shall prescribe, in conspicuous places in and about its plants and offices where employees covered by the National Labor Relations Act engage in activities relating to the performance of the contract, including all places where notices to employees are customarily posted both physically and electronically. The notice shall include the information contained in the notice published by the Secretary of Labor in the Federal Register (Secretarys Notice). 2. The contractor will comply with all provisions of the Secretarys Notice, and related rules, regulations, and orders of the Secretary of Labor. 3. In the event that the contractor does not comply with any of the requirements set forth in paragraphs (1) or (2) above, this contract may be cancelled, terminated, or suspended in whole or in part, and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in or adopted pursuant to Executive Order [number as provided by the Federal Register [13496]] of [insert new date [ Jan. 30, 2009 Jan. 30, 2009 4. The contractor will include the provisions of paragraphs (1) through (3) above in every subcontract entered into in connection with this contract (unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 3 of Executive Order [number as provided by the Federal Register [13496]] of [insert new date [ Jan. 30, 2009 Sec Administration (a) The Secretary of Labor (Secretary) shall be responsible for the administration and enforcement of this order. The Secretary shall adopt such rules and regulations and issue such orders as are necessary and appropriate to achieve the purposes of this order. (b) Within 120 days of the effective date of this order, the Secretary shall initiate a rulemaking to prescribe the size, form, and content of the notice to be posted by a contractor under paragraph 1 of the contract clause described in section 2 of this order. Such notice shall describe the rights of employees under Federal labor laws, consistent with the policy set forth in section 1 of this order. (c) Whenever the Secretary finds that an act of Congress, clarification of existing law by the courts or the National Labor Relations Board, or other circumstances make modification of the contractual provisions set out in subsection (a) of this section necessary to achieve the purposes of this order, the Secretary promptly shall issue such rules, regulations, or orders as are needed to cause the substitution or addition of appropriate contractual provisions in Government contracts thereafter entered into. Sec Exemptions (b) The Secretary may, if the Secretary finds that special circumstances require an exemption in order to serve the national interest, exempt a contracting department or agency from the requirements of any or all of the provisions of section 2 of this order with respect to a particular contract or subcontract or class of contracts or subcontracts. Sec Investigation (a) The Secretary may investigate any Government contractor, subcontractor, or vendor to determine whether the contractual provisions required by section 2 of this order have been violated. Such investigations shall be conducted in accordance with procedures established by the Secretary. (b) The Secretary shall receive and investigate complaints by employees of a Government contractor or subcontractor, where such complaints allege a failure to perform or a violation of the contractual provisions required by section 2 of this order. Sec Compliance (a) The Secretary, or any agency or officer in the executive branch lawfully designated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, regarding compliance with this order as the Secretary may deem advisable. (b) The Secretary may hold hearings, or cause hearings to be held, in accordance with subsection (a) of this section, prior to imposing, ordering, or recommending the imposition of sanctions under this order. Neither an order for cancellation, termination, or suspension of any contract or debarment of any contractor from further Government contracts under section 7(b) of this order nor the inclusion of a contractor on a published list of noncomplying contractors under section 7(c) of this order shall be carried out without affording the contractor an opportunity for a hearing. Sec Remedies (a) after consulting with the contracting department or agency, direct that department or agency to cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor to comply with the contractual provisions required by section 2 of this order; contracts may be cancelled, terminated, or suspended absolutely, or continuance of contracts may be conditioned upon future compliance: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of the contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that completion of the contract is essential to the agencys mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of the contracting department or agency, or his or her designee, continues to object to the issuance of such directive; (b) after consulting with each affected contracting department or agency, provide that one or more contracting departments or agencies shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary that such contractor has complied with and will carry out the provisions of this order: Provided, that before issuing a directive under this subsection, the Secretary shall provide the head of each contracting department or agency an opportunity to offer written objections to the issuance of such a directive, which objections shall include a complete statement of reasons for the objections, among which reasons shall be a finding that further contracts or extensions or other modifications of existing contracts with the noncomplying contractor are essential to the agencys mission: And provided further, that no directive shall be issued by the Secretary under this subsection so long as the head of a contracting department or agency, or his or her designee, continues to object to the issuance of such directive; and (c) publish, or cause to be published, the names of contractors that have, in the judgment of the Secretary, failed to comply with the provisions of this order or of related rules, regulations, and orders of the Secretary. Sec Reports Sec Cooperation Sec Sufficiency of Remedies Sec Delegation Sec Implementation Sec Revocation of Prior Order and Actions February 17, 2001 Sec Severability Sec General Provisions (a) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to a department, agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Sec Effective Date  Barack Obama.  Ex. Ord. No. 13502. Use of Project Labor Agreements for Federal Construction Projects Ex. Ord. No. 13502, Feb. 6, 2009 By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq Section Policy (b) The use of a project labor agreement may prevent these problems from developing by providing structure and stability to large-scale construction projects, thereby promoting the efficient and expeditious completion of Federal construction contracts. Accordingly, it is the policy of the Federal Government to encourage executive agencies to consider requiring the use of project labor agreements in connection with large-scale construction projects in order to promote economy and efficiency in Federal procurement. Sec Definitions (a) The term labor organization as used in this order means a labor organization as defined in 29 U.S.C. 152(5) (b) The term construction as used in this order means construction, rehabilitation, alteration, conversion, extension, repair, or improvement of buildings, highways, or other real property. (c) The term large-scale construction project as used in this order means a construction project where the total cost to the Federal Government is $25 million or more. (d) The term executive agency as used in this order has the same meaning as in 5 U.S.C. 105 (e) The term project labor agreement as used in this order means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f) Sec (b) If an executive agency determines under subsection (a) that the use of a project labor agreement will satisfy the criteria in clauses (i) and (ii) of that subsection, the agency may, if appropriate, require that every contractor or subcontractor on the project agree, for that project, to negotiate or become a party to a project labor agreement with one or more appropriate labor organizations. Sec (a) bind all contractors and subcontractors on the Construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents; (b) allow all contractors and subcontractors to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements; (c) contain guarantees against strikes, lockouts, and similar job disruptions; (d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the project labor agreement; (e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and (f) fully conform to all statutes, regulations, and Executive Orders. Sec Sec Sec Sec Revocation of Prior Orders, Rules, and Regulations February 17, 2001 April 6, 2001 Sec Severability Sec General (i) authority granted by law to an executive department, agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Sec Effective Date  Barack Obama.  Ex. Ord. No. 13981. Protecting the United States From Certain Unmanned Aircraft Systems Ex. Ord. No. 13981, Jan. 18, 2021 By the authority vested in me as President by the Constitution and the laws of the United States of America, I, DONALD J. TRUMP, President of the United States of America, find that additional actions are necessary to ensure the security of Unmanned Aircraft Systems (UAS) owned, operated, and controlled by the Federal Government; to secure the integrity of American infrastructure, including Americas National Airspace System (NAS); to protect our law enforcement and warfighters; and to maintain and expand our domestic industrial base capabilities. Accordingly, I hereby order: Section Policy United States Government operations involving UAS require accessing, collecting, and maintaining data, which could reveal sensitive information. The use of UAS and critical components manufactured and developed by foreign adversaries, or by persons under their control, may allow this sensitive information to be accessed by or transferred to foreign adversaries. Furthermore, the manufacturing of UAS involves combining several critical components, including advanced manufacturing techniques, artificial intelligence, microelectronic components, and multi-spectral sensors. The Nations capability to produce UAS and certain critical UAS components domestically is critical for national defense and the security and strength of our defense industrial base. It is the policy of the United States, therefore, to prevent the use of taxpayer dollars to procure UAS that present unacceptable risks and are manufactured by, or contain software or critical electronic components from, foreign adversaries, and to encourage the use of domestically produced UAS. Sec. Reviewing Federal Government Authority to Limit Government Procurement of Covered UAS (i) directly procuring or indirectly procuring through a third party, such as a contractor, a covered UAS; (ii) providing Federal financial assistance (e.g., through award of a grant) that may be used to procure a covered UAS; (iii) entering into, or renewing, a contract, order, or other commitment for the procurement of a covered UAS; or (iv) otherwise providing Federal funding for the procurement of a covered UAS. (b) After conducting the review described in subsection (a) of this section, the heads of all agencies shall each submit a report to the Director of the Office of Management and Budget identifying any authority to take the actions outlined in subsections (a)(i) through (iv) of this section. Sec. Reviewing Federal Government Use of UAS Jan. 18, 2021 (b) Within 180 days of the date of this order, the Director of National Intelligence, in consultation with the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of the Office of Science and Technology Policy, and the heads of other agencies, as appropriate, shall review the reports required by subsection (a) of this section and submit a report to the President assessing the security risks posed by the existing Federal UAS fleet and outlining potential steps that could be taken to mitigate these risks, including, if warranted, discontinuing all Federal use of covered UAS and the expeditious removal of UAS from Federal service. Sec. Restricting Use of UAS On or Over Critical Infrastructure or Other Sensitive Sites Public Law 114190 49 U.S.C. 44802 Sec. Budget (b) The Director of the Office of Management and Budget shall work with the heads of all agencies to identify possible sources of funding to replace covered UAS in the Federal fleet in future submissions of the Presidents Budget request. Sec. Definitions (a) The term adversary country means the Democratic Peoples Republic of Korea, the Islamic Republic of Iran, the Peoples Republic of China, the Russian Federation, or, as determined by the Secretary of Commerce, any other foreign nation, foreign area, or foreign non-government entity engaging in long-term patterns or serious instances of conduct significantly adverse to the national or economic security of the United States. (b) The term covered UAS means any UAS that: (i) is manufactured, in whole or in part, by an entity domiciled in an adversary country; (ii) uses critical electronic components installed in flight controllers, ground control system processors, radios, digital transmission devices, cameras, or gimbals manufactured, in whole or in part, in an adversary country; (iii) uses operating software (including cell phone or tablet applications, but not cell phone or tablet operating systems) developed, in whole or in part, by an entity domiciled in an adversary country; (iv) uses network connectivity or data storage located outside the United States, or administered by any entity domiciled in an adversary country; or (v) contains hardware and software components used for transmitting photographs, videos, location information, flight paths, or any other data collected by the UAS manufactured by an entity domiciled in an adversary country. (c) The term critical electronic component means any electronic device that stores, manipulates, or transfers digital data. The term critical electronic component does not include, for example, passive electronics such as resistors, and non-data transmitting motors, batteries, and wiring. (d) The term entity means a partnership, association, trust, joint venture, corporation, government, group, subgroup, other organization, or person. (e) The term Intelligence Community has the same meaning set forth for that term in section 3003(4) of title 50 (f) The term National Airspace System (NAS) means the common network of United States airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. The term also includes system components shared jointly by the Departments of Defense, Transportation, and Homeland Security. (g) The term Unmanned Aircraft Systems (UAS) means any unmanned aircraft, and the associated elements that are required for the pilot or system operator to operate safely and efficiently in the NAS, including communication links, the components that control the unmanned aircraft, and all critical electronic components. The term UAS does not include any separate communication device, such as a cellular phone or tablet, designed to perform independently of a UAS system, which may be incorporated into the operation of a UAS. Sec. General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  Donald J. Trump.  Ex. Ord. No. 14063. Use of Project Labor Agreements for Federal Construction Projects Ex. Ord. No. 14063, Feb. 4, 2022 By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq Section Policy (b) Project labor agreements are often effective in preventing these problems from developing because they provide structure and stability to large-scale construction projects. Such agreements avoid labor-related disruptions on projects by using dispute-resolution processes to resolve worksite disputes and by prohibiting work stoppages, including strikes and lockouts. They secure the commitment of all stakeholders on a construction site that the project will proceed efficiently without unnecessary interruptions. They also advance the interests of project owners, contractors, and subcontractors, including small businesses. For these reasons, owners and contractors in both the public and private sector routinely use project labor agreements, thereby reducing uncertainties in large-scale construction projects. The use of project labor agreements is fully consistent with the promotion of small business interests. (c) Accordingly, it is the policy of the Federal Government for agencies to use project labor agreements in connection with large-scale construction projects to promote economy and efficiency in Federal procurement. Sec Definitions (a) Labor organization means a labor organization as defined in 29 U.S.C. 152(5) 29 U.S.C. 158(f) (b) Construction means construction, reconstruction, rehabilitation, modernization, alteration, conversion, extension, repair, or improvement of buildings, structures, highways, or other real property. (c) Large-scale construction project means a Federal construction project within the United States for which the total estimated cost of the construction contract to the Federal Government is $35 million or more. The Federal Acquisition Regulatory Council (FAR Council), in consultation with the Council of Economic Advisers, may adjust this threshold based on inflation using the process at 41 U.S.C. 1908 (d) Agency means an executive department or agency, including an independent establishment subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A) (e) Project labor agreement means a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f) Sec Project Labor Agreement Presumption Sec Requirements of Project Labor Agreements (a) bind all contractors and subcontractors on the construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents; (b) allow all contractors and subcontractors on the construction project to compete for contracts and subcontracts without regard to whether they are otherwise parties to collective bargaining agreements; (c) contain guarantees against strikes, lockouts, and similar job disruptions; (d) set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement; (e) provide other mechanisms for labor-management cooperation on matters of mutual interest and concern, including productivity, quality of work, safety, and health; and (f) fully conform to all statutes, regulations, Executive Orders, and Presidential Memoranda. Sec Exceptions Authorized by Agencies (a) Requiring a project labor agreement on the project would not advance the Federal Governments interests in achieving economy and efficiency in Federal procurement. Such a finding shall be based on the following factors: (i) The project is of short duration and lacks operational complexity; (ii) The project will involve only one craft or trade; (iii) The project will involve specialized construction work that is available from only a limited number of contractors or subcontractors; (iv) The agencys need for the project is of such an unusual and compelling urgency that a project labor agreement would be impracticable; or (v) The project implicates other similar factors deemed appropriate in regulations or guidance issued pursuant to section 8 of this order. (b) Based on an inclusive market analysis, requiring a project labor agreement on the project would substantially reduce the number of potential bidders so as to frustrate full and open competition. (c) Requiring a project labor agreement on the project would otherwise be inconsistent with statutes, regulations, Executive Orders, or Presidential Memoranda. Sec Reporting (b) On a quarterly basis, agencies shall report to the Office of Management and Budget (OMB) on their use of project labor agreements on large-scale construction projects and on the exceptions granted under section 5 of this order. Sec Sec Regulations and Implementation Feb. 4, 2022 (b) The Director of OMB shall, to the extent permitted by law, issue guidance to implement the requirements of sections 5 and 6 of this order. Sec Contracting Officer Training Sec Revocation of Prior Orders, Rules, and Regulations February 6, 2009 Sec Severability Sec Effective Date Sec General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  J.R. Biden, Jr.  3901. Contracts awarded using procedures other than sealed-bid procedures (a)  Authorized Types Except as provided in section 3905 of this title (b)  Required Warranty. (1)  Content Every contract awarded after using procedures other than sealed-bid procedures shall contain a suitable warranty, as determined by the agency head, by the contractor that no person or selling agency has been employed or retained to solicit or secure the contract on an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for bona fide employees or bona fide established commercial or selling agencies the contractor maintains to secure business. (2)  Remedy for breach or violation For the breach or violation of the warranty, the Federal Government may annul the contract without liability or deduct from the contract price or consideration the full amount of the commission, percentage, brokerage, or contingent fee. (3)  Nonapplication Paragraph (1) does not apply to a contract for an amount that is not greater than the simplified acquisition threshold or to a contract for the acquisition of commercial products or commercial services. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3774 Pub. L. 115232, div. A, title VIII,  836(b)(16) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3901 41:254(a). June 30, 1949, ch. 288 63 Stat. 395 Pub. L. 98369, div. B, title VII,  2714(a)(3)(A) July 18, 1984 98 Stat. 1184 Pub. L. 103355, title IV,  4103(c) Oct. 13, 1994 108 Stat. 3341 In subsection (b)(2), the words in its discretion are omitted as unnecessary. Editorial Notes Amendments 2018Subsec. (b)(3). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  3902. Severable services contracts for periods crossing fiscal years (a)  Authority To Enter Into Contract The head of an executive agency may enter into a contract for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year if (without regard to any option to extend the period of the contract) the contract period does not exceed one year. (b)  Obligation of Funds Funds made available for a fiscal year may be obligated for the total amount of a contract entered into under the authority of this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3774        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3902 41:253 l June 30, 1949, ch. 288 Pub. L. 103355, title I,  1073 Oct. 13, 1994 108 Stat. 3271 Pub. L. 104106, title XLIII,  4321(a)(1) Feb. 10, 1996 110 Stat. 671 Statutory Notes and Related Subsidiaries Severable Services and Multiyear Contract Authority of Judicial Entities Pub. L. 11376, div. E, title III,  306 Jan. 17, 2014 128 Stat. 203 The Supreme Court of the United States, the Federal Judicial Center, and the United States Sentencing Commission are hereby authorized, now and hereafter, to enter into contracts for the acquisition of severable services for a period that begins in one fiscal year and ends in the next fiscal year and to enter into contracts for multiple years for the acquisition of property and services, to the same extent as executive agencies under the authority of 41 U.S.C. sections 3902 and 3903, respectively.  3903. Multiyear contracts (a)  Definition In this section, a multiyear contract is a contract for the purchase of property or services for more than one, but not more than 5, program years. (b)  Authority To Enter Into Contract An executive agency may enter into a multiyear contract for the acquisition of property or services if (1) funds are available and obligated for the contract, for the full period of the contract or for the first fiscal year in which the contract is in effect, and for the estimated costs associated with a necessary termination of the contract; and (2) the executive agency determines that (A) the need for the property or services is reasonably firm and continuing over the period of the contract; and (B) a multiyear contract will serve the best interests of the Federal Government by encouraging full and open competition or promoting economy in administration, performance, and operation of the agencys programs. (c)  Termination Clause A multiyear contract entered into under the authority of this section shall include a clause that provides that the contract shall be terminated if funds are not made available for the continuation of the contract in a fiscal year covered by the contract. Funds available for paying termination costs shall remain available for that purpose until the costs associated with termination of the contract are paid. (d)  Cancellation Ceiling Notice Before a contract described in subsection (b) that contains a clause setting forth a cancellation ceiling in excess of $10,000,000 may be awarded, the executive agency shall give written notification of the proposed contract and of the proposed cancellation ceiling for that contract to Congress. The contract may not be awarded until the end of the 30-day period beginning on the date of the notification. (e)  Contingency Clause for Appropriation of Funds A multiyear contract may provide that performance under the contract after the first year of the contract is contingent on the appropriation of funds and (if the contract does so provide) that a cancellation payment shall be made to the contractor if the funds are not appropriated. (f)  Other Law Not Affected This section does not modify or affect any other provision of law that authorizes multiyear contracts. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3774        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3903(a) 41:254c(d) (1st sentence). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1072 Oct. 13, 1994 108 Stat. 3270 3903(b) 41:254c(a). 3903(c) 41:254c(b). 3903(d) 41:254c(c). 3903(e) 41:254c(d) (last sentence). 3903(f) 41:254c(e).  3904. Contract authority for severable services contracts and multiyear contracts (a)  Comptroller General The Comptroller General may use available funds to enter into contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year and to enter into multiyear contracts for the acquisition of property and nonaudit-related services to the same extent as executive agencies under sections 3902 and 3903 of this title. (b)  Library of Congress The Library of Congress may use available funds to enter into contracts for the lease or procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year and to enter into multiyear contracts for the acquisition of property and services pursuant to sections 3902 and 3903 of this title. (c)  Chief Administrative Officer of the House of Representatives The Chief Administrative Officer of the House of Representatives may enter into (1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title (2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title (d)  Congressional Budget Office The Congressional Budget Office may use available funds to enter into contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year and may enter into multiyear contracts for the acquisition of property and services to the same extent as executive agencies under the authority of sections 3902 and 3903 of this title. (e)  Secretary and Sergeant at Arms and Doorkeeper of the Senate Subject to regulations prescribed by the Committee on Rules and Administration of the Senate, the Secretary and the Sergeant at Arms and Doorkeeper of the Senate may enter into (1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent and under the same conditions as the head of an executive agency under the authority of section 3902 of this title (2) multiyear contracts for the acquisition of property and services to the same extent and under the same conditions as executive agencies under the authority of section 3903 of this title (f)  Capitol Police The United States Capitol Police may enter into (1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title (2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title (g)  Architect of the Capitol The Architect of the Capitol may enter into (1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year to the same extent as the head of an executive agency under the authority of section 3902 of this title (2) multiyear contracts for the acquisitions of property and nonaudit-related services to the same extent as executive agencies under the authority of section 3903 of this title (h)  Secretary of the Smithsonian Institution The Secretary of the Smithsonian Institution may enter into (1) contracts for the procurement of severable services for a period that begins in one fiscal year and ends in the next fiscal year under the authority of section 3902 of this title (2) multiyear contracts for the acquisition of property and services under the authority of section 3903 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3775        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3904(a) 41:253 l Pub. L. 10518, title II,  7004 June 12, 1997 111 Stat. 192 3904(b) 41:253 l Pub. L. 10657, title II,  207 Sept. 29, 1999 113 Stat. 423 3904(c) 41:253 l Pub. L. 106554,  1(a)(2) [title I,  101, 110] Dec. 21, 2000 114 Stat. 2763 3904(d) 41:253 l 3904(e) 41:253 l Pub. L. 1087, div. H, title I Feb. 20, 2003 117 Stat. 350 3904(f) 41:253 l 3904(g) 41:253 l 3904(h) 41:253 l Pub. L. 10872,  4 Aug. 15, 2003 117 Stat. 889 In subsections (a)(c) and (e)(h), the words procurement of severable services are substituted for acquisition of severable services for consistency with 41:253 l In subsection (c), the words During fiscal year 2001 and any succeeding fiscal year are omitted as obsolete. In subsection (d), the words Beginning on December 21, 2000 In subsection (e), the text of 41:253 l In subsection (f), the text of 41:253 l In subsection (g), the text of 41:253 l In subsection (h), the text of 41:253 l  3905. Cost contracts (a)  Cost-Plus-A-Percentage-Of-Cost Contracts Disallowed The cost-plus-a-percentage-of-cost system of contracting shall not be used. (b)  Cost-Plus-A-Fixed-Fee Contracts. (1)  In general Except as provided in paragraphs (2) and (3), the fee in a cost-plus-a-fixed-fee contract shall not exceed 10 percent of the estimated cost of the contract, not including the fee, as determined by the agency head at the time of entering into the contract. (2)  Experimental, developmental, or research work The fee in a cost-plus-a-fixed-fee contract for experimental, developmental, or research work shall not exceed 15 percent of the estimated cost of the contract, not including the fee. (3)  Architectural or engineering services The fee in a cost-plus-a-fixed-fee contract for architectural or engineering services relating to any public works or utility project may include the contractors costs and shall not exceed 6 percent of the estimated cost, not including the fee, as determined by the agency head at the time of entering into the contract, of the project to which the fee applies. (c)  Notification All cost and cost-plus-a-fixed-fee contracts shall provide for advance notification by the contractor to the procuring agency of any subcontract on a cost-plus-a-fixed-fee basis and of any fixed-price subcontract or purchase order which exceeds in dollar amount either the simplified acquisition threshold or 5 percent of the total estimated cost of the prime contract. (d)  Right To Audit A procuring agency, through any authorized representative thereof, has the right to inspect the plans and to audit the books and records of a prime contractor or subcontractor engaged in the performance of a cost or cost-plus-a-fixed-fee contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3776        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3905(a) 41:254(b) (1st sentence words before 1st comma). June 30, 1949, ch. 288 63 Stat. 395 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 103355, title I,  1071 Oct. 13, 1994 108 Stat. 3270 3905(b) 41:254(b) (1st sentence words after 1st comma). 3905(c) 41:254(b) (last sentence words before semicolon). 3905(d) 41:254(b) (last sentence words after semicolon).  3906. Cost-reimbursement contracts (a)  Definition In this section, the term executive agency has the same meaning given in section 133 of this title (b)  Regulations on the Use of Cost-Reimbursement Contracts The Federal Acquisition Regulation shall address the use of cost-reimbursement contracts. (c)  Content The regulations promulgated under subsection (b) shall include guidance regarding (1) when and under what circumstances cost-reimbursement contracts are appropriate; (2) the acquisition plan findings necessary to support a decision to use cost-reimbursement contracts; and (3) the acquisition workforce resources necessary to award and manage cost-reimbursement contracts. (d)  Annual Report. (1)  In general The Director of the Office of Management and Budget shall submit an annual report to Congressional committees identified in subsection (e) on the use of cost-reimbursement contracts and task or delivery orders by all executive agencies. (2)  Contents The report shall include (A) the total number and value of contracts awarded and orders issued during the covered fiscal year; (B) the total number and value of cost-reimbursement contracts awarded and orders issued during the covered fiscal year; and (C) an assessment of the effectiveness of the regulations promulgated pursuant to subsection (b) in ensuring the appropriate use of cost-reimbursement contracts. (3)  Time requirements. (A)  Deadline The report shall be submitted no later than March 1 and shall cover the fiscal year ending September 30 of the prior year. (B)  Limitation The report shall be submitted from March 1, 2009 March 1, 2014 (e)  Congressional Committees The report required by subsection (d) shall be submitted to (1) the Committee on Oversight and Government Reform of the House of Representatives; (2) the Committee on Homeland Security and Governmental Affairs of the Senate; (3) the Committees on Appropriations of the House of Representatives and the Senate; and (4) in the case of the Department of Defense and the Department of Energy, the Committees on Armed Services of the Senate and the House of Representatives. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3777        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  3906 41:254 note. Pub. L. 110417 Oct. 14, 2008 122 Stat. 4549 In subsection (b), the words Not later than 270 days after the date of the enactment of this Act are omitted because of section 6(f) of the bill. The words shall address are substituted for shall be revised to address to reflect the permanence of the provision. In subsection (d), the words Subject to subsection (f) are omitted as unnecessary. Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023 Amendment of Federal Acquisition Regulation Pub. L. 111350,  6(f)(5) Jan. 4, 2011 124 Stat. 3855 The Federal Acquisition Regulation shall be amended to meet the requirements of section 3906(b) of title 41 October 14, 2008 CHAPTER 41 TASK AND DELIVERY ORDER CONTRACTS    Sec.  4101. Definitions.  4102. Authorities or responsibilities not affected.  4103. General authority.  4104. Guidance on use of task and delivery order contracts.  4105. Advisory and assistance services.  4106. Orders.  4101. Definitions In this chapter: (1)  Delivery order contract The term delivery order contract means a contract for property that (A) does not procure or specify a firm quantity of property (other than a minimum or maximum quantity); and (B) provides for the issuance of orders for the delivery of property during the period of the contract. (2)  Task order contract The term task order contract means a contract for services that (A) does not procure or specify a firm quantity of services (other than a minimum or maximum quantity); and (B) provides for the issuance of orders for the performance of tasks during the period of the contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3778        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4101 41:253k. June 30, 1949, ch. 288 Pub. L. 103355, title I,  1054(a) Oct. 13, 1994 108 Stat. 3265  4102. Authorities or responsibilities not affected  This chapter does not modify or supersede, and is not intended to impair or restrict, authorities or responsibilities under sections 1101 to 1104 of title 40. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3778        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4102 41:253h note. Pub. L. 103355,  1054(b) Oct. 13, 1994 108 Stat. 3265 The text of section 1054(b)(1) of the Federal Acquisition Streamlining Act of 1994 ( Pub. L. 103355  4103. General authority (a)  Authority To Award Subject to the requirements of this section, section 4106 of this title (b)  Solicitation The solicitation for a task or delivery order contract shall include (1) the period of the contract, including the number of options to extend the contract and the period for which the contract may be extended under each option; (2) the maximum quantity or dollar value of the services or property to be procured under the contract; and (3) a statement of work, specifications, or other description that reasonably describes the general scope, nature, complexity, and purposes of the services or property to be procured under the contract. (c)  Applicability of Restriction on Use of Noncompetitive Procedures The head of an executive agency may use procedures other than competitive procedures to enter into a task or delivery order contract under this section only if an exception in section 3304(a) of this title section 3304(e) of this title (d)  Single and Multiple Contract Awards. (1)  Exercise of authority The head of an executive agency may exercise the authority provided in this section (A) to award a single task or delivery order contract; or (B) if the solicitation states that the head of the executive agency has the option to do so, to award separate task or delivery order contracts for the same or similar services or property to 2 or more sources. (2)  Determination not required No determination under section 3303 of this title (3)  Single source award for task or delivery order contracts exceeding $100,000,000. (A)  When single awards are allowed No task or delivery order contract in an amount estimated to exceed $100,000,000 (including all options) may be awarded to a single source unless the head of the executive agency determines in writing that (i) the task or delivery orders expected under the contract are so integrally related that only a single source can reasonably perform the work; (ii) the contract provides only for firm, fixed price task orders or delivery orders for (I) products for which unit prices are established in the contract; or (II) services for which prices are established in the contract for the specific tasks to be performed; (iii) only one source is qualified and capable of performing the work at a reasonable price to the Federal Government; or (iv) because of exceptional circumstances, it is necessary in the public interest to award the contract to a single source. (B)  Notification of Congress The head of the executive agency shall notify Congress within 30 days after any determination under subparagraph (A)(iv). (4)  Regulations Regulations implementing this subsection shall establish (A) a preference for awarding, to the maximum extent practicable, multiple task or delivery order contracts for the same or similar services or property under paragraph (1)(B); and (B) criteria for determining when award of multiple task or delivery order contracts would not be in the best interest of the Federal Government. (e)  Contract Modifications A task or delivery order may not increase the scope, period, or maximum value of the task or delivery order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract. (f)  Inapplicability to Contracts for Advisory and Assistance Services Except as otherwise specifically provided in section 4105 of this title section 1105(g) of title 31 (g)  Relationship to Other Contracting Authority Nothing in this section may be construed to limit or expand any authority of the head of an executive agency or the Administrator of General Services to enter into schedule, multiple award, or task or delivery order contracts under any other provision of law. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3778        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4103 41:253h. June 30, 1949, ch. 288 Pub. L. 103355, title I,  1054(a) Oct. 13, 1994 108 Stat. 3261 Pub. L. 110181, title VIII,  843(b)(1) Jan. 28, 2008 122 Stat. 238 In subsection (a), the words (as defined in section 253k of this title  4104. Guidance on use of task and delivery order contracts (a)  Guidance in Federal Acquisition Regulation The Federal Acquisition Regulation issued in accordance with sections 1121(b) and 1303(a)(1) of this title shall provide guidance to agencies on the appropriate use of task and delivery order contracts in accordance with this chapter and chapter 245 of title 10. (b)  Content of Regulations The regulations issued pursuant to subsection (a) at a minimum shall provide specific guidance on (1) the appropriate use of Government-wide and other multiagency contracts entered into in accordance with this chapter and chapter 245 of title 10; and (2) steps that agencies should take in entering into and administering multiple award task and delivery order contracts to ensure compliance with the requirement in (A)  section 11312 of title 40 (B)  section 4106(c) of this title section 3406(c) of title 10 (C)  section 4106(e) of this title section 3406(e) of title 10 (c)  Federal Supply Schedules Program The Administrator for Federal Procurement Policy shall consult with the Administrator of General Services to assess the effectiveness of the multiple awards schedule program of the General Services Administration referred to in section 152(3) of this title (1) the administration of the program by the Administrator of General Services; and (2) the ordering and program practices followed by Federal customer agencies in using schedules established under the program. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3780 Pub. L. 11781, div. A, title XVII,  1702(h)(14) Dec. 27, 2021 135 Stat. 2158        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4104 41:253h note. Pub. L. 10665, div. A, title VIII,  804 Oct. 5, 1999 113 Stat. 704 In this section, the text of section 804(d) of the National Defense Authorization Act for Fiscal Year 2000 ( Pub. L. 10665 In subsection (a), the words Not later than 180 days after the date of the enactment of this Act and be revised to are omitted as obsolete. In subsection (b)(1), the words this chapter and sections 2304a to 2304d of title 10 are substituted for the provisions of law referred to in that subsection for clarity. Editorial Notes Amendments 2021Subsecs. (a), (b)(1). Pub. L. 11781,  1702(h)(14)(A) Subsec. (b)(2)(B). Pub. L. 11781,  1702(h)(14)(B)(ii) Subsec. (b)(2)(C). Pub. L. 11781,  1702(h)(14)(B)(iii)  4105. Advisory and assistance services (a)  Definition In this section, the term advisory and assistance services has the same meaning given that term in section 1105(g) of title 31 (b)  Authority To Award. (1)  In general Subject to the requirements of this section, section 4106 of this title (2)  Only under this section The head of an executive agency may enter into a task order contract for advisory and assistance services only under this section. (c)  Contract Period The period of a task order contract entered into under this section, including all periods of extensions of the contract under options, modifications, or otherwise, may not exceed 5 years unless a longer period is specifically authorized in a law that is applicable to the contract. (d)  Content of Notice The notice required by section 1708 of this title 15 U.S.C. 637(e) (e)  Required Content of Solicitation and Contract. (1)  Solicitation The solicitation shall include the information (regarding services) described in section 4103(b) of this title (2)  Contract A task order contract entered into under this section shall contain the same information that is required by paragraph (1) to be included in the solicitation of offers for that contract. (f)  Multiple Awards. (1)  Authority to make multiple awards On the basis of one solicitation, the head of an executive agency may award separate task order contracts under this section for the same or similar services to 2 or more sources if the solicitation states that the head of the executive agency has the option to do so. (2)  Content of solicitation In the case of a task order contract for advisory and assistance services to be entered into under this section, if the contract period is to exceed 3 years and the contract amount is estimated to exceed $10,000,000 (including all options), the solicitation shall (A) provide for a multiple award authorized under paragraph (1); and (B) include a statement that the head of the executive agency may also elect to award only one task order contract if the head of the executive agency determines in writing that only one of the offerors is capable of providing the services required at the level of quality required. (3)  Nonapplication Paragraph (2) does not apply in the case of a solicitation for which the head of the executive agency concerned determines in writing that, because the services required under the contract are unique or highly specialized, it is not practicable to award more than one contract. (g)  Contract Modifications. (1)  Increase in scope, period, or maximum value of contract only by modification of contract A task order may not increase the scope, period, or maximum value of the task order contract under which the order is issued. The scope, period, or maximum value of the contract may be increased only by modification of the contract. (2)  Use of competitive procedures Unless use of procedures other than competitive procedures is authorized by an exception in section 3304(a) of this title section 3304(e) of this title (3)  Notice Notice regarding the modification shall be provided in accordance with section 1708 of this title 15 U.S.C. 637(e) (h)  Contract Extensions. (1)  When contract may be extended Notwithstanding the limitation on the contract period set forth in subsection (c) or in a solicitation or contract pursuant to subsection (f), a contract entered into by the head of an executive agency under this section may be extended on a sole-source basis for a period not exceeding 6 months if the head of the executive agency determines that (A) the award of a follow-on contract has been delayed by circumstances that were not reasonably foreseeable at the time the initial contract was entered into; and (B) the extension is necessary to ensure continuity of the receipt of services pending the award of, and commencement of performance under, the follow-on contract. (2)  Limit of one extension A task order contract may be extended under paragraph (1) only once and only in accordance with the limitations and requirements of this subsection. (i)  Inapplicability to Certain Contracts This section does not apply to a contract for the acquisition of property or services that includes acquisition of advisory and assistance services if the head of the executive agency entering into the contract determines that, under the contract, advisory and assistance services are necessarily incident to, and not a significant component of, the contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3780        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4105(a) 41:253i(i). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1054(a) Oct. 13, 1994 108 Stat. 3262 4105(b) 41:253i(a). 4105(c)(1) 41:253i(b). 4105(c)(2) 41:253i note. Pub. L. 109364, div. A, title VIII,  834(b) Oct. 17, 2006 120 Stat. 2333 4105(d) 41:253i(c). 4105(e) 41:253i(d). 4105(f) 41:253i(e). 4105(g) 41:253i(f). 4105(h) 41:253i(g). 4105(i) 41:253i(h). In subsection (b)(1), the words (as defined in section 253k of this title In subsection (c)(2)(C), the words Committee on Oversight and Government Reform are substituted for Committee on Government Reform on authority of Rule X(1)(m) of the Rules of the House of Representatives, adopted by House Resolution No. 6 (110th Congress, January 5, 2007 Senate Revision Amendment Senate amendment to the bill effectively struck out subsec. (c)(2) and redesignated subsec. (c)(1) as (c). See S. Amdt. 4726 (111th Cong.), 156 Cong. Rec. 18683 (2010).  4106. Orders (a)  Application This section applies to task and delivery order contracts entered into under sections 4103 and 4105 of this title. (b)  Actions Not Required for Issuance of Orders The following actions are not required for issuance of a task or delivery order under a task or delivery order contract: (1) A separate notice for the order under section 1708 of this title 15 U.S.C. 637(e) (2) Except as provided in subsection (c), a competition (or a waiver of competition approved in accordance with section 3304(e) of this title (c)  Multiple Award Contracts When multiple contracts are awarded under section 4103(d)(1)(B) or 4105(f) of this title, all contractors awarded the contracts shall be provided a fair opportunity to be considered, pursuant to procedures set forth in the contracts, for each task or delivery order in excess of the micro-purchase threshold under section 1902 of this title (1) the executive agencys need for the services or property ordered is of such unusual urgency that providing the opportunity to all of those contractors would result in unacceptable delays in fulfilling that need; (2) only one of those contractors is capable of providing the services or property required at the level of quality required because the services or property ordered are unique or highly specialized; (3) the task or delivery order should be issued on a sole-source basis in the interest of economy and efficiency because it is a logical follow-on to a task or delivery order already issued on a competitive basis; or (4) it is necessary to place the order with a particular contractor to satisfy a minimum guarantee. (d)  Enhanced Competition for Orders in Excess of In the case of a task or delivery order in excess of $5,000,000, the requirement to provide all contractors a fair opportunity to be considered under subsection (c) is not met unless all such contractors are provided, at a minimum (1) a notice of the task or delivery order that includes a clear statement of the executive agencys requirements; (2) a reasonable period of time to provide a proposal in response to the notice; (3) disclosure of the significant factors and subfactors, including cost or price, that the executive agency expects to consider in evaluating such proposals, and their relative importance; (4) in the case of an award that is to be made on a best value basis, a written statement documenting (A) the basis for the award; and (B) the relative importance of quality and price or cost factors; and (5) an opportunity for a post-award debriefing consistent with the requirements of section 3704 of this title (e)  Statement of Work A task or delivery order shall include a statement of work that clearly specifies all tasks to be performed or property to be delivered under the order. (f)  Protests. (1)  Protest not authorized A protest is not authorized in connection with the issuance or proposed issuance of a task or delivery order except for (A) a protest on the ground that the order increases the scope, period, or maximum value of the contract under which the order is issued; or (B) a protest of an order valued in excess of $10,000,000. (2)  Jurisdiction over protests Notwithstanding section 3556 of title 31 (g)  Task and Delivery Order Ombudsman. (1)  Appointment or designation and responsibilities The head of each executive agency who awards multiple task or delivery order contracts under section 4103(d)(1)(B) or 4105(f) of this title shall appoint or designate a task and delivery order ombudsman who shall be responsible for reviewing complaints from the contractors on those contracts and ensuring that all of the contractors are afforded a fair opportunity to be considered for task or delivery orders when required under subsection (c). (2)  Who is eligible The task and delivery order ombudsman shall be a senior agency official who is independent of the contracting officer for the contracts and may be the executive agencys advocate for competition. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3782 Pub. L. 111383, div. A, title X,  1075(f)(5)(B) Jan. 7, 2011 124 Stat. 4376 Pub. L. 11281, div. A, title VIII,  813 Dec. 31, 2011 125 Stat. 1491 Pub. L. 114260,  2 Dec. 14, 2016 130 Stat. 1361 Pub. L. 114328, div. A, title VIII,  835(b) Dec. 23, 2016 130 Stat. 2285 Pub. L. 11692, div. A, title VIII,  826 Dec. 20, 2019 133 Stat. 1491  Amendment Not Shown in Text This section was derived from section 253j of former Title 41, Public Contracts, which was amended by Pub. L. 110181, div. A, title VIII,  843(b)(2)(C) Jan. 28, 2008 122 Stat. 239 Pub. L. 111350 Jan. 4, 2011 124 Stat. 3677 section 843(b)(2)(C) of Pub. L. 110181 Pub. L. 111383, div. A, title X,  1075(f)(5)(B) Jan. 7, 2011 124 Stat. 4376 section 6(a) of Pub. L. 111350 section 101 of this title Section 843(b)(2)(C) of Pub. L. 110181       Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4106(a) 41:253j(g). June 30, 1949, ch. 288 Pub. L. 103355, title I,  1054(a) Oct. 13, 1994 108 Stat. 3264 Pub. L. 110181, div. A, title VIII,  843(b)(2) Jan. 28, 2008 122 Stat. 238 4106(b) 41:253j(a). 4106(c) 41:253j(b). 4106(d) 41:253j(d). 4106(e) 41:253j(c). 4106(f) 41:253j(e). 4106(g) 41:253j(f). In subsection (g)(2), the words advocate for competition are substituted for competition advocate for consistency with section 1705 of the revised title. Editorial Notes Amendments 2019Subsec. (c). Pub. L. 11692 section 1902 of this title 2016Subsec. (f)(3). Pub. L. 114260 Pub. L. 114328 September 30, 2016 2011Subsec. (f)(3). Pub. L. 11281 January 28, 2008 Statutory Notes and Related Subsidiaries Postaward Explanations for Unsuccessful Offerors for Certain Contracts Pub. L. 11692, div. A, title VIII,  874 Dec. 20, 2019 133 Stat. 1527 Not later than 180 days after the date of the enactment of this Act [ Dec. 20, 2019 section 134 of title 41 CHAPTER 43 ALLOWABLE COSTS    Sec.  4301. Definitions.  4302. Adjustment of threshold amount of covered contract.  4303. Effect of submission of unallowable costs.  4304. Specific costs not allowable.  4305. Required regulations.  4306. Applicability of regulations to subcontractors.  4307. Contractor certification.  4308. Penalties for submission of cost known to be unallowable.  4309. Burden of proof on contractor.  4310. Proceeding costs not allowable.  4301. Definitions In this chapter: (1)  Compensation The term compensation, for a fiscal year, means the total amount of wages, salary, bonuses, and deferred compensation for the fiscal year, whether paid, earned, or otherwise accruing, as recorded in an employers cost accounting records for the fiscal year. (2)  Covered contract The term covered contract means a contract for an amount in excess of $500,000 that is entered into by an executive agency, except that the term does not include a fixed-price contract without cost incentives or any firm fixed-price contract for the purchase of commercial products or commercial services. (3)  Fiscal year The term fiscal year means a fiscal year established by a contractor for accounting purposes. (4)  Senior executive The term senior executive, with respect to a contractor, means the 5 most highly compensated employees in management positions at each home office and each segment of the contractor. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3784 Pub. L. 115232, div. A, title VIII,  836(b)(17) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4301(1) 41:256(m)(1). June 30, 1949, ch. 288 Pub. L. 10585, title VIII,  808(b)(2) Nov. 18, 1997 111 Stat. 1836 Pub. L. 105261, title VIII,  804(b) Oct. 17, 1998 112 Stat. 2083 4301(2) 41:256( l June 30, 1949, ch. 288 l Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3315 4301(3) 41:256(m)(3). 4301(4) 41:256(m)(2). Editorial Notes Amendments 2018Par. (2). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  4302. Adjustment of threshold amount of covered contract  Effective on October 1 of each year that is divisible by 5, the amount set forth in section 4301(2) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3784        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4302 41:256( l June 30, 1949, ch. 288 l Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3315  4303. Effect of submission of unallowable costs (a)  Indirect Cost That Violates Federal Acquisition Regulation Cost Principle An executive agency shall require that a covered contract provide that if the contractor submits to the executive agency a proposal for settlement of indirect costs incurred by the contractor for any period after those costs have been accrued and if that proposal includes the submission of a cost that is unallowable because the cost violates a cost principle in the Federal Acquisition Regulation or an executive agency supplement to the Federal Acquisition Regulation, the cost shall be disallowed. (b)  Penalty for Violation of Cost Principle. (1)  Unallowable cost in proposal If the executive agency determines that a cost submitted by a contractor in its proposal for settlement is expressly unallowable under a cost principle referred to in subsection (a) that defines the allowability of specific selected costs, the executive agency shall assess a penalty against the contractor in an amount equal to (A) the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted; plus (B) interest (to be computed based on provisions in the Federal Acquisition Regulation) to compensate the Federal Government for the use of the amount which a contractor has been paid in excess of the amount to which the contractor was entitled. (2)  Cost determined to be unallowable before proposal submitted If the executive agency determines that a proposal for settlement of indirect costs submitted by a contractor includes a cost determined to be unallowable in the case of that contractor before the submission of that proposal, the executive agency shall assess a penalty against the contractor in an amount equal to 2 times the amount of the disallowed cost allocated to covered contracts for which a proposal for settlement of indirect costs has been submitted. (c)  Waiver of Penalty The Federal Acquisition Regulation shall provide for a penalty under subsection (b) to be waived in the case of a contractors 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 officers 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 contractors proposal for settlement of indirect costs; and (B) the unallowable costs subject to the penalty were inadvertently incorporated into the proposal. (d)  Applicability of Contract Disputes Procedure An action of an executive agency under subsection (a) or (b) (1) shall be considered a final decision for the purposes of section 7103 of this title (2) is appealable in the manner provided in section 7104(a) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3784        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4303(a) 41:256(a). June 30, 1949, ch. 288 Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3309 4303(b) 41:256(b). 4303(c) 41:256(c). 4303(d) 41:256(d). In subsection (a), the words (referred to in section 421(c)(1) of this title  4304. Specific costs not allowable (a)  Specific Costs The following costs are not allowable under a covered contract: (1) Costs of entertainment, including amusement, diversion, and social activities, and any costs directly associated with those costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities). (2) Costs incurred to influence (directly or indirectly) legislative action on any matter pending before Congress, a State legislature, or a legislative body of a political subdivision of a State. (3) Costs incurred in defense of any civil or criminal fraud proceeding or similar proceeding (including filing of any false certification) brought by the Federal Government where the contractor is found liable or had pleaded nolo contendere to a charge of fraud or similar proceeding (including filing of a false certification). (4) Payments of fines and penalties resulting from violations of, or failure to comply with, Federal, State, local, or foreign laws and regulations, except when incurred as a result of compliance with specific terms and conditions of the contract or specific written instructions from the contracting officer authorizing in advance those payments in accordance with applicable provisions of the Federal Acquisition Regulation. (5) Costs of membership in any social, dining, or country club or organization. (6) Costs of alcoholic beverages. (7) Contributions or donations, regardless of the recipient. (8) Costs of advertising designed to promote the contractor or its products. (9) Costs of promotional items and memorabilia, including models, gifts, and souvenirs. (10) Costs for travel by commercial aircraft that exceed the amount of the standard commercial fare. (11) Costs incurred in making any payment (commonly known as a golden parachute payment) that is (A) in an amount in excess of the normal severance pay paid by the contractor to an employee on termination of employment; and (B) paid to the employee contingent on, and following, a change in management control over, or ownership of, the contractor or a substantial portion of the contractors assets. (12) Costs of commercial insurance that protects against the costs of the contractor for correction of the contractors own defects in materials or workmanship. (13) Costs of severance pay paid by the contractor to foreign nationals employed by the contractor under a service contract performed outside the United States, to the extent that the amount of severance pay paid in any case exceeds the amount paid in the industry involved under the customary or prevailing practice for firms in that industry providing similar services in the United States, as determined under the Federal Acquisition Regulation. (14) Costs of severance pay paid by the contractor to a foreign national employed by the contractor under a service contract performed in a foreign country if the termination of the employment of the foreign national is the result of the closing of, or the curtailment of activities at, a Federal Government facility in that country at the request of the government of that country. (15) Costs incurred by a contractor or subcontractor, or personal service 1 1 section 4310 of this title (16)  2 2 (16)  2 (b)  Waiver of Severance Pay Restrictions for Foreign Nationals. (1)  Executive agency determination Pursuant to the Federal Acquisition Regulation and subject to the availability of appropriations, an executive agency, in awarding a covered contract, may waive the application of paragraphs (13) and (14) of subsection (a) to that contract if the executive agency determines that (A) the application of those provisions to that contract would adversely affect the continuation of a program, project, or activity that provides significant support services for employees of the executive agency posted outside the United States; (B) the contractor has taken (or has established plans to take) appropriate actions within the contractors control to minimize the amount and number of incidents of the payment of severance pay by the contractor to employees under the contract who are foreign nationals; and (C) the payment of severance pay is necessary to comply with a law that is generally applicable to a significant number of businesses in the country in which the foreign national receiving the payment performed services under the contract or is necessary to comply with a collective bargaining agreement. (2)  Solicitation to include statement about waiver An executive agency shall include in the solicitation for a covered contract a statement indicating (A) that a waiver has been granted under paragraph (1) for the contract; or (B) whether the executive agency will consider granting a waiver and, if the executive agency will consider granting a waiver, the criteria to be used in granting the waiver. (3)  Determination to be made before contract awarded An executive agency shall make the final determination whether to grant a waiver under paragraph (1) with respect to a covered contract before award of the contract. (c)  Establishment of Definitions, Exclusions, Limitations, and Qualifications The provisions of the Federal Acquisition Regulation implementing this chapter may establish appropriate definitions, exclusions, limitations, and qualifications. A submission by a contractor of costs that are incurred by the contractor and that are claimed to be allowable under Department of Energy management and operating contracts shall be considered a proposal for settlement of indirect costs incurred by the contractor for any period after those costs have been accrued. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3785 Pub. L. 11366, div. A, title VIII,  811(b) Dec. 26, 2013 127 Stat. 806 Pub. L. 11367, div. A, title VII,  702(a)(1) Dec. 26, 2013 127 Stat. 1189 Pub. L. 114261,  1(b)(2)(B) Dec. 14, 2016 130 Stat. 1363        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4304 41:256(e). June 30, 1949, ch. 288 Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3310 Pub. L. 10585, title VIII,  808(b)(1) Nov. 18, 1997 111 Stat. 1836 Editorial Notes Amendments 2016Subsec. (a)(15). Pub. L. 114261 2013Subsec. (a)(16). Pub. L. 11366 Pub. L. 11367 section 1127 of this title Statutory Notes and Related Subsidiaries Effective Date of 2013 Amendment Pub. L. 11367, div. A, title VII,  702(c) Dec. 26, 2013 127 Stat. 1189 This section [amending this section and former section 2324 of Title 10 section 1127 of this title Dec. 26, 2013 Pub. L. 11366, div. A, title VIII,  811(d) Dec. 26, 2013 127 Stat. 806 The amendments made by this section [amending this section and former section 2324 of Title 10 section 1127 of this title Dec. 26, 2013 Reports Pub. L. 11367, div. A, title VII,  702(d) Dec. 26, 2013 127 Stat. 1189  (1)  In general Not later than 60 days after the end of each fiscal year, the Director of the Office of Management and Budget shall submit a report on contractor compensation to (A) the Committee on Armed Services of the Senate; (B) the Committee on Armed Services of the House of Representatives; (C) the Committee on Homeland Security and Governmental Affairs of the Senate; (D) the Committee on Oversight and Government Reform [now Committee on Oversight and Accountability] of the House of Representatives; (E) the Committee on Appropriations of the Senate; and (F) the Committee on Appropriations of the House of Representatives. (2)  Elements The report required under paragraph (1) shall include (A) the total number of contractor employees, by executive agency, in the narrowly targeted exception positions described under subsection (a) during the preceding fiscal year; (B) the taxpayer-funded compensation amounts received by each contractor employee in a narrowly targeted exception position during such fiscal year; and (C) the duties and services performed by contractor employees in the narrowly targeted exception positions during such fiscal year. Revision of Cost Principle Relating to Entertainment, Gift, and Recreation Costs for Contractor Employees Pub. L. 103355, title II,  2192 Oct. 13, 1994 108 Stat. 3315  (a)  Costs Not Allowable (1) The costs of gifts or recreation for employees of a contractor or members of their families that are provided by the contractor to improve employee morale or performance or for any other purpose are not allowable under a covered contract unless, within 120 days after the date of the enactment of this Act [ Oct. 13, 1994 (2) Not later than 90 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall amend the cost principle in the Federal Acquisition Regulation that is set out in section 31.20514 of title 48, Code of Federal Regulations, relating to unallowability of entertainment costs (A) by inserting in the cost principle a statement that costs made specifically unallowable under that cost principle are not allowable under any other cost principle; and (B) by striking out (but see 31.2051 and 31.20513). (b)  Definitions In this section: (1) The term employee includes officers and directors of a contractor. (2) The term covered contract has the meaning given such term in section 2324( l l 41 U.S.C. 4301(2) (c)  Effective Date Any amendments to the Federal Acquisition Regulation made pursuant to subsection (a) shall apply with respect to costs incurred after the date on which the amendments made by section 2101 apply (as provided in section 10001 [set out as an Effective Date of 1994 Amendment note under section 2302 of Title 10 Executive Documents  Ex. Ord. No. 13494. Economy in Government Contracting Ex. Ord. No. 13494, Jan. 30, 2009 Oct. 30, 2009 By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq Section Sec Sec Sec (a) preparing and distributing materials; (b) hiring or consulting legal counsel or consultants; (c) holding meetings (including paying the salaries of the attendees at meetings held for this purpose); and (d) planning or conducting activities by managers, supervisors, or union representatives during work hours. Sec Sec Sec (b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Sec  Barack Obama.  4305. Required regulations (a)  In General The Federal Acquisition Regulation shall contain provisions on the allowability of contractor costs. Those provisions shall define in detail and in specific terms the costs that are unallowable, in whole or in part, under covered contracts. (b)  Specific Items The regulations shall, at a minimum, clarify the cost principles applicable to contractor costs of the following: (1) Air shows. (2) Membership in civic, community, and professional organizations. (3) Recruitment. (4) Employee morale and welfare. (5) Actions to influence (directly or indirectly) executive branch action on regulatory and contract matters (other than costs incurred in regard to contract proposals pursuant to solicited or unsolicited bids). (6) Community relations. (7) Dining facilities. (8) Professional and consulting services, including legal services. (9) Compensation. (10) Selling and marketing. (11) Travel. (12) Public relations. (13) Hotel and meal expenses. (14) Expense of corporate aircraft. (15) Company-furnished automobiles. (16) Advertising. (17) Conventions. (c)  Additional Requirements. (1)  When questioned costs may be resolved The Federal Acquisition Regulation shall require that a contracting officer not resolve any questioned costs until the contracting officer has obtained (A) adequate documentation of those costs; and (B) the opinion of the contract auditor on the allowability of those costs. (2)  Presence of contract auditor The Federal Acquisition Regulation shall provide that, to the maximum extent practicable, a contract auditor be present at any negotiation or meeting with the contractor regarding a determination of the allowability of indirect costs of the contractor. (3)  Settlement to reflect amount of individual questioned costs The Federal Acquisition Regulation shall require that all categories of costs designated in the report of a contract auditor as questioned with respect to a proposal for settlement be resolved in a manner so that the amount of the individual questioned costs that are paid will be reflected in the settlement. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3787        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4305(a) 41:256(f)(1) (1st, 2d sentences). June 30, 1949, ch. 288 Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3312 4305(b) 41:256(f)(1) (last sentence). 4305(c) 41:256(f)(2)(4).  4306. Applicability of regulations to subcontractors  The regulations referred to in sections 4304 and 4305(a) and (b) of this title shall require prime contractors of a covered contract, to the maximum extent practicable, to apply the provisions of those regulations to all subcontractors of the covered contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3788        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4306 41:256(g). June 30, 1949, ch. 288 Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3313  4307. Contractor certification (a)  Content and Form A proposal for settlement of indirect costs applicable to a covered contract shall include a certification by an official of the contractor that, to the best of the certifying officials knowledge and belief, all indirect costs included in the proposal are allowable. The certification shall be in a form prescribed in the Federal Acquisition Regulation. (b)  Waiver An executive agency may, in an exceptional case, waive the requirement for certification under subsection (a) in the case of a contract if the agency (1) determines that it would be in the interest of the Federal Government to waive the certification; and (2) states in writing the reasons for the determination and makes the determination available to the public. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3788        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4307 41:256(h). June 30, 1949, ch. 288 Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3313  4308. Penalties for submission of cost known to be unallowable  The submission to an executive agency of a proposal for settlement of costs for any period after those costs have been accrued that includes a cost that is expressly specified by statute or regulation as being unallowable, with the knowledge that the cost is unallowable, is subject to section 287 of title 18 section 3729 of title 31 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3788        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4308 41:256(i). June 30, 1949, ch. 288 Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3313  4309. Burden of proof on contractor  In a proceeding before a board of contract appeals, the United States Court of Federal Claims, or any other Federal court in which the reasonableness of indirect costs for which a contractor seeks reimbursement from the Federal Government is in issue, the burden of proof is on the contractor to establish that those costs are reasonable. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3788        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4309 41:256(j). June 30, 1949, ch. 288 Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3313  4310. Proceeding costs not allowable (a)  Definitions In this section: (1)  Costs The term costs, with respect to a proceeding, means all costs incurred by a contractor, subcontractor, or personal services contractor, whether before or after the commencement of the proceeding, including (A) administrative and clerical expenses; (B) the cost of legal services, including legal services performed by an employee of the contractor, subcontractor, or personal services contractor; (C) the cost of the services of accountants and consultants retained by the contractor, subcontractor, or personal services contractor; and (D) the pay of directors, officers, and employees of the contractor, subcontractor, or personal services contractor for time devoted by those directors, officers, and employees to the proceeding. (2)  Penalty The term penalty does not include restitution, reimbursement, or compensatory damages. (3)  Proceeding The term proceeding includes an investigation. (b)  In General Except as otherwise provided in this section, costs incurred by a contractor, subcontractor, or personal services contractor in connection with a criminal, civil, or administrative proceeding commenced by the Federal Government, by a State, or by a contractor, subcontractor, or personal services contractor or grantee employee submitting a complaint under section 4712 of this title (1) relates to a violation of, or failure to comply with, a Federal or State statute or regulation or to any other activity described in section 4712(a)(1) of this title (2) results in a disposition described in subsection (c). (c)  Covered Dispositions A disposition referred to in subsection (b)(2) is any of the following: (1) In a criminal proceeding, a conviction (including a conviction pursuant to a plea of nolo contendere) by reason of the violation or failure referred to in subsection (b). (2) In a civil or administrative proceeding involving an allegation of fraud or similar misconduct, a determination of contractor, subcontractor, or personal services contractor liability on the basis of the violation or failure referred to in subsection (b). (3) In any civil or administrative proceeding, the imposition of a monetary penalty or an order to take corrective action under section 4712 of this title (4) A final decision to do any of the following, by reason of the violation or failure referred to in subsection (b): (A) Debar or suspend the contractor, subcontractor, or personal services contractor. (B) Rescind or void the contract, subcontract, or personal services contract. (C) Terminate the contract, subcontract, or personal services contract for default. (5) A disposition of the proceeding by consent or compromise if the disposition could have resulted in a disposition described in paragraph (1), (2), (3), or (4). (d)  Costs Allowed by Settlement Agreement in Proceeding Commenced by Federal Government In the case of a proceeding referred to in subsection (b) that is commenced by the Federal Government and is resolved by consent or compromise pursuant to an agreement entered into by a contractor, subcontractor, or personal services contractor and the Federal Government, the costs incurred by the contractor, subcontractor, or personal services contractor in connection with the proceeding that are otherwise not allowable as reimbursable costs under subsection (b) may be allowed to the extent specifically provided in that agreement. (e)  Costs Specifically Authorized by Executive Agency in Proceeding Commenced by State In the case of a proceeding referred to in subsection (b) that is commenced by a State, the executive agency that awarded the covered contract, subcontract, or personal services contract involved in the proceeding may allow the costs incurred by the contractor, subcontractor, or personal services contractor in connection with the proceeding as reimbursable costs if the executive agency determines, in accordance with the Federal Acquisition Regulation, that the costs were incurred as a result of (1) a specific term or condition of the contract, subcontract, or personal services contract; or (2) specific written instructions of the executive agency. (f)  Other Allowable Costs. (1)  In general Except as provided in paragraph (3), costs incurred by a contractor, subcontractor, or personal services contractor in connection with a criminal, civil, or administrative proceeding commenced by the Federal Government or a State in connection with a covered contract, subcontract, or personal services contract may be allowed as reimbursable costs under the contract, subcontract, or personal services contract if the costs are not disallowable under subsection (b), but only to the extent provided in paragraph (2). (2)  Amount of allowable costs. (A)  Maximum amount allowed The amount of the costs allowable under paragraph (1) in any case may not exceed the amount equal to 80 percent of the amount of the costs incurred, to the extent that the costs are determined to be otherwise allowable and allocable under the Federal Acquisition Regulation. (B)  Content of regulations Regulations issued for the purpose of subparagraph (A) shall provide for appropriate consideration of the complexity of procurement litigation, generally accepted principles governing the award of legal fees in civil actions involving the Federal Government as a party, and other factors as may be appropriate. (3)  When otherwise allowable costs are not allowable In the case of a proceeding referred to in paragraph (1), contractor, subcontractor, or personal services contractor costs otherwise allowable as reimbursable costs under this subsection are not allowable if (A) the proceeding involves the same contractor, subcontractor, or personal services contractor misconduct alleged as the basis of another criminal, civil, or administrative proceeding; and (B) the costs of the other proceeding are not allowable under subsection (b). ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3789 Pub. L. 112239, div. A, title VIII,  828(d) Jan. 2, 2013 126 Stat. 1841 Pub. L. 114261,  1(b)(2)(A) Dec. 14, 2016 130 Stat. 1362        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4310(a) 41:256(k)(6). June 30, 1949, ch. 288 Pub. L. 100700,  8(a)(1) Nov. 19, 1988 102 Stat. 4634 Pub. L. 103355, title II,  2151 Oct. 13, 1994 108 Stat. 3313 4310(b) 41:256(k)(1). 4310(c) 41:256(k)(2). 4310(d) 41:256(k)(3). 4310(e) 41:256(k)(4). 4310(f) 41:256(k)(5). Editorial Notes Amendments 2016 Pub. L. 114261,  1(b)(2)(A)(i) Subsec. (b)(1). Pub. L. 114261,  1(b)(2)(A)(iii) section 4712(a)(1) of this title 2013Subsec. (b). Pub. L. 112239,  828(d)(1) section 4712 of this title Subsec. (c)(3). Pub. L. 112239,  828(d)(2) section 4712 of this title CHAPTER 45 CONTRACT FINANCING    Sec.  4501. Authority of executive agency.  4502. Payment.  4503. Security for advance payments.  4504. Conditions for progress payments.  4505. Payments for commercial products and commercial services.  4506. Action in case of fraud.  Editorial Notes Amendments 2018 Pub. L. 115232, div. A, title VIII,  836(b)(18)(B)(ii) Aug. 13, 2018 132 Stat. 1864  4501. Authority of executive agency An executive agency may (1) make advance, partial, progress or other payments under contracts for property or services made by the agency; and (2) insert in solicitations for procurement of property or services a provision limiting to small business concerns advance or progress payments. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3790        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4501 41:255(a). June 30, 1949, ch. 288 63 Stat. 396 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 85800,  4 Aug. 28, 1958 72 Stat. 966 Pub. L. 103355, title II,  2051(a)(2) Oct. 13, 1994 108 Stat. 3304 Statutory Notes and Related Subsidiaries Relationship to Prompt Payment Requirements Pub. L. 103355, title II,  2051(f) Oct. 13, 1994 108 Stat. 3306 The amendments made by this section [see Tables for classification] are not intended to impair or modify procedures required by the provisions of chapter 39 of title 31, United States Code, and the regulations issued pursuant to such provisions of law (as such procedures are in effect on the date of the enactment of this Act [ Oct. 13, 1994  4502. Payment (a)  Basis for Payment When practicable, payments under section 4501 of this title (1) Performance measured by objective, quantifiable methods such as delivery of acceptable items, work measurement, or statistical process controls. (2) Accomplishment of events defined in the program management plan. (3) Other quantifiable measures of results. (b)  Payment Amount Payments made under section 4501 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3791        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4502(a) 41:255(b). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2051(b) Oct. 13, 1994 108 Stat. 3304 4502(b) 41:255(c). June 30, 1949, ch. 288 63 Stat. 396 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 85800,  4 Aug. 28, 1958 72 Stat. 966 Pub. L. 103355, title II,  2051(a)(3) Oct. 13, 1994 108 Stat. 3304  4503. Security for advance payments  Advance payments under section 4501 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3791        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4503 41:255(d). June 30, 1949, ch. 288 63 Stat. 396 July 12, 1952, ch. 703,  1(m) 66 Stat. 594 Pub. L. 85800,  4 Aug. 28, 1958 72 Stat. 966 Pub. L. 103355, title II,  2051(a)(4) Oct. 13, 1994 108 Stat. 3304  4504. Conditions for progress payments (a)  Payment Commensurate With Work The executive agency shall ensure that a payment for work in progress (including materials, labor, and other items) under a contract of an executive agency that provides for those payments is commensurate with the work accomplished that meets standards established under the contract. The contractor shall provide information and evidence the executive agency determines is necessary to permit the executive agency to carry out this subsection. (b)  Limitation The executive agency shall ensure that progress payments referred to in subsection (a) are not made for more than 80 percent of the work accomplished under the contract as long as the executive agency has not made the contractual terms, specifications, and price definite. (c)  Application This section applies to a contract in an amount greater than $25,000. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3791        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4504 41:255(e). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2051(e) Oct. 13, 1994 108 Stat. 3304 Pub. L. 104106, title XLIII,  4321(a)(4) Feb. 10, 1996 110 Stat. 671  4505. Payments for commercial products and commercial services (a)  Terms and Conditions for Payments Payments under section 4501 of this title (b)  Security for Payments The head of the executive agency shall obtain adequate security for the payments. If the security is in the form of a lien in favor of the Federal Government, the lien is paramount to all other liens and is effective immediately on the first payment, without filing, notice, or other action by the Federal Government. (c)  Limitation on Advance Payments Advance payments made under section 4501 of this title (d)  Nonapplication of Certain Conditions The conditions of sections 4503 and 4504 of this title need not be applied if they would be inconsistent, as determined by the head of the executive agency, with commercial terms and conditions pursuant to this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3791 Pub. L. 115232, div. A, title VIII,  836(b)(18)(A) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4505 41:255(f). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2051(e) Oct. 13, 1994 108 Stat. 3304 Pub. L. 104106, title XLIII,  4321(a)(4) Feb. 10, 1996 110 Stat. 671 Editorial Notes Amendments 2018 Pub. L. 115232,  836(b)(18)(B)(i) Subsecs. (a), (c). Pub. L. 115232,  836(b)(18)(A) Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  4506. Action in case of fraud (a)  Definition In this section, the term remedy coordination official, with respect to an executive agency, means the individual or entity in that executive agency who coordinates within that executive agency the administration of criminal, civil, administrative, and contractual remedies resulting from investigations of fraud or corruption related to procurement activities. (b)  Recommendation To Reduce or Suspend Payments In any case in which the remedy coordination official of an executive agency finds that there is substantial evidence that the request of a contractor for advance, partial, or progress payment under a contract awarded by that executive agency is based on fraud, the remedy coordination official shall recommend that the executive agency reduce or suspend further payments to that contractor. (c)  Reduction or Suspension of Payments The head of an executive agency receiving a recommendation under subsection (b) in the case of a contractors request for payment under a contract shall determine whether there is substantial evidence that the request is based on fraud. On making an affirmative determination, the head of the executive agency may reduce or suspend further payments to the contractor under the contract. (d)  Extent of Reduction or Suspension The extent of any reduction or suspension of payments by an executive agency under subsection (c) on the basis of fraud shall be reasonably commensurate with the anticipated loss to the Federal Government resulting from the fraud. (e)  Written Justification A written justification for each decision of the head of an executive agency whether to reduce or suspend payments under subsection (c), and for each recommendation received by the executive agency in connection with the decision, shall be prepared and be retained in the files of the executive agency. (f)  Notice The head of each executive agency shall prescribe procedures to ensure that, before the head of the executive agency decides to reduce or suspend payments in the case of a contractor under subsection (c), the contractor is afforded notice of the proposed reduction or suspension and an opportunity to submit matters to the executive agency in response to the proposed reduction or suspension. (g)  Review Not later than 180 days after the date on which the head of an executive agency reduces or suspends payments to a contractor under subsection (c), the remedy coordination official of the executive agency shall (1) review the determination of fraud on which the reduction or suspension is based; and (2) transmit a recommendation to the head of the executive agency whether the suspension or reduction should continue. (h)  Report The head of each executive agency who receives recommendations made by the remedy coordination official of the executive agency to reduce or suspend payments under subsection (c) during a fiscal year shall prepare for that year a report that contains the recommendations, the actions taken on the recommendations and the reasons for those actions, and an assessment of the effects of those actions on the Federal Government. The report shall be available to any Member of Congress on request. (i)  Restriction on Delegation The head of an executive agency may not delegate responsibilities under this section to an individual in a position below level IV of the Executive Schedule. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3792        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4506 41:255(g). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2051(e) Oct. 13, 1994 108 Stat. 3305 Pub. L. 104106, title XLIII,  4321(a)(4) Feb. 10, 1996 110 Stat. 671 CHAPTER 47 MISCELLANEOUS    Sec.  4701. Determinations and decisions.  4702. Prohibition on release of contractor proposals.  4703. Validation of proprietary data restrictions.  4704. Prohibition of contractors limiting subcontractor sales directly to Federal Government.  4705. Protection of contractor employees from reprisal for disclosure of certain information.  4706. Examination of facilities and records of contractor.  4707. Remission of liquidated damages.  4708. Payment of reimbursable indirect costs in cost-type research and development contracts with educational institutions.  4709. Implementation of electronic commerce capability.  4710. Limitations on tiering of subcontractors.  4711. Linking of award and incentive fees to acquisition outcomes.  4712. Enhancement of contractor protection from reprisal for disclosure of certain information.  4713. Authorities relating to mitigating supply chain risks in the procurement of covered articles.  4714. Prohibition on criminal history inquiries by contractors prior to conditional offer.  Editorial Notes Amendments 2019 Pub. L. 11692, div. A, title XI,  1123(a)(2) Dec. 20, 2019 133 Stat. 1612 2018 Pub. L. 115390, title II,  203(b) Dec. 21, 2018 132 Stat. 5192 2016 Pub. L. 114261,  1(a)(3)(B) Dec. 14, 2016 130 Stat. 1362 2013 Pub. L. 112239, div. A, title VIII,  828(a)(2) Jan. 2, 2013 126 Stat. 1840  4701. Determinations and decisions (a)  Individual or Class Determinations and Decisions Authorized. (1)  In general Determinations and decisions required to be made under this division by the head of an executive agency or provided in this division or chapters 1 to 11 of title 40 to be made by the Administrator of General Services or other agency head may be made for an individual purchase or contract or, except for determinations or decisions made under sections 3105, 3301, 3303 to 3305, 3306(a)(e), and 3308, chapter 37, and section 4702 of this title (2)  Delegation Except as provided in section 3304(a)(7) of this title (3)  Finality The determinations and decisions are final. (b)  Written Findings. (1)  Basis for certain determinations Each determination or decision under section 3901, 3905, 4503, or 4706(d)(2)(B) of this title shall be based on a written finding by the individual making the determination or decision. A finding under section 4503 or 4706(d)(2)(B) shall set out facts and circumstances that support the determination or decision. (2)  Finality Each finding referred to in paragraph (1) is final. (3)  Maintaining copies of findings The head of an executive agency shall maintain for a period of not less than 6 years a copy of each finding referred to in paragraph (1) that is made by an individual in that executive agency. The period begins on the date of the determination or decision to which the finding relates. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3793        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4701 41:257. June 30, 1949, ch. 288 63 Stat. 396 Pub. L. 85800,  5 Aug. 28, 1958 72 Stat. 967 Pub. L. 89343 Nov. 8, 1965 79 Stat. 1303 Pub. L. 98369, title VII,  2714(a)(4) July 18, 1984 98 Stat. 1184 Pub. L. 104106, title XLIII,  4321(e)(6) Feb. 10, 1996 110 Stat. 675 Pub. L. 104316, title I,  121(c) Oct. 19, 1996 110 Stat. 3836  41:262. June 30, 1949, ch. 288 Pub. L. 103355, title I,  1553 Oct. 13, 1994 108 Stat. 3300  4702. Prohibition on release of contractor proposals (a)  Definition In this section, the term proposal means a proposal, including a technical, management, or cost proposal, submitted by a contractor in response to the requirements of a solicitation for a competitive proposal. (b)  Prohibition A proposal in the possession or control of an executive agency may not be made available to any person under section 552 of title 5 (c)  Nonapplication Subsection (b) does not apply to a proposal that is set forth or incorporated by reference in a contract entered into between the agency and the contractor that submitted the proposal. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3794        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4702(a) 41:253b(m)(3). June 30, 1949, ch. 288 Pub. L. 104201, title VIII,  821(b) Sept. 23, 1996 110 Stat. 2609 4702(b) 41:253b(m)(1). 4702(c) 41:253b(m)(2). In subsection (b), the words Except as provided in paragraph (2) are omitted as unnecessary.  4703. Validation of proprietary data restrictions (a)  Contract That Provides for Delivery of Technical Data A contract for property or services entered into by an executive agency that provides for the delivery of technical data shall provide that (1) a contractor or subcontractor at any tier shall be prepared to furnish to the contracting officer a written justification for any restriction the contractor or subcontractor asserts on the right of the Federal Government to use the data; and (2) the contracting officer may review the validity of a restriction the contractor or subcontractor asserts under the contract on the right of the Federal Government to use technical data furnished to the Federal Government under the contract if the contracting officer determines that reasonable grounds exist to question the current validity of the asserted restriction and that the continued adherence to the asserted restriction by the Federal Government would make it impracticable to procure the item competitively at a later time. (b)  Challenge of Restriction If after a review the contracting officer determines that a challenge to the asserted restriction is warranted, the contracting officer shall provide written notice to the contractor or subcontractor asserting the restriction. The notice shall state (1) the grounds for challenging the asserted restriction; and (2) the requirement for a response within 60 days justifying the current validity of the asserted restriction. (c)  Additional Time for Responses If a contractor or subcontractor asserting a restriction subject to this section submits to the contracting officer a written request showing the need for additional time to comply with the requirement to justify the current validity of the asserted restriction, the contracting officer shall provide appropriate additional time to adequately permit the justification to be submitted. (d)  Multiple Challenges If a party asserting a restriction receives notices of challenges to restrictions on technical data from more than one contracting officer, and notifies each contracting officer of the existence of more than one challenge, the contracting officer initiating the earliest challenge, after consultation with the party asserting the restriction and the other contracting officers, shall formulate a schedule of responses to each of the challenges that will afford the party asserting the restriction with an equitable opportunity to respond to each challenge. (e)  Decision on Validity of Asserted Restriction. (1)  No response submitted The contracting officer shall issue a decision pertaining to the validity of the asserted restriction if the contractor or subcontractor does not submit a response under subsection (b). (2)  Response submitted Within 60 days of receipt of a justification submitted in response to the notice provided pursuant to subsection (b), a contracting officer shall issue a decision or notify the party asserting the restriction of the time within which a decision will be issued. (f)  Claim Deemed Claim Within Chapter A claim pertaining to the validity of the asserted restriction that is submitted in writing to a contracting officer by a contractor or subcontractor at any tier is deemed to be a claim within the meaning of chapter 71 of this title. (g)  Final Disposition of Challenge. (1)  Challenge is sustained If the contracting officers challenge to the restriction on the right of the Federal Government to use technical data is sustained on final disposition (A) the restriction is cancelled; and (B) if the asserted restriction is found not to be substantially justified, the contractor or subcontractor, as appropriate, is liable to the Federal Government for payment of the cost to the Federal Government of reviewing the asserted restriction and the fees and other expenses (as defined in section 2412(d)(2)(A) of title 28 (2)  Challenge not sustained If the contracting officers challenge to the restriction on the right of the Federal Government to use technical data is not sustained on final disposition, the Federal Government (A) continues to be bound by the restriction; and (B) is liable for payment to the party asserting the restriction for fees and other expenses (as defined in section 2412(d)(2)(A) of title 28 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3794        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4703(a) 41:253d(a). June 30, 1949, ch. 288 Pub. L. 98577, title II,  203(a) Oct. 30, 1984 98 Stat. 3071 Pub. L. 99145, title XIII,  1304(c)(4)(A) Nov. 8, 1985 99 Stat. 742 4703(b) 41:253d(b). 4703(c) 41:253d(c) (1st sentence). 4703(d) 41:253d(c) (last sentence). 4703(e) 41:253d(d). 4703(f) 41:253d(e). 4703(g) 41:253d(f).  4704. Prohibition of contractors limiting subcontractor sales directly to Federal Government (a)  Contract Restrictions Each contract for the purchase of property or services made by an executive agency shall provide that the contractor will not (1) enter into an agreement with a subcontractor under the contract that has the effect of unreasonably restricting sales by the subcontractor directly to the Federal Government of any item or process (including computer software) made or furnished by the subcontractor under the contract (or any follow-on production contract); or (2) otherwise act to restrict unreasonably the ability of a subcontractor to make sales described in paragraph (1) to the Federal Government. (b)  Rights Under Law Preserved This section does not prohibit a contractor from asserting rights it otherwise has under law. (c)  Inapplicability to Certain Contracts This section does not apply to a contract for an amount that is not greater than the simplified acquisition threshold. (d)  Inapplicability When Government Treated Similarly to Other Purchasers An agreement between the contractor in a contract for the acquisition of commercial products or commercial services and a subcontractor under the contract that restricts sales by the subcontractor directly to persons other than the contractor may not be considered to unreasonably restrict sales by that subcontractor to the Federal Government in violation of the provision included in the contract pursuant to subsection (a) if the agreement does not result in the Federal Government being treated differently with regard to the restriction than any other prospective purchaser of the commercial products or commercial services from that subcontractor. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3795 Pub. L. 115232, div. A, title VIII,  836(b)(19) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4704(a) 41:253g(a). June 30, 1949, ch. 288 Pub. L. 98577, title II,  206(a) Oct. 30, 1984 98 Stat. 3073 Pub. L. 99145, title XIII,  1304(c)(4)(A) Nov. 8, 1985 99 Stat. 742 4704(b) 41:253g(b). 4704(c) 41:253g(c). June 30, 1949, ch. 288 Pub. L. 103355, title IV,  4103(b) Oct. 13, 1994 108 Stat. 3341 4704(d) 41:253g(d). June 30, 1949, ch. 288 Pub. L. 103355, title VIII,  8204(a) Oct. 13, 1994 108 Stat. 3396 Editorial Notes Amendments 2018Subsec. (d). Pub. L. 115232 Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  4705. Protection of contractor employees from reprisal for disclosure of certain information (a)  Definitions In this section: (1)  Contract The term contract means a contract awarded by the head of an executive agency. (2)  Contractor The term contractor means a person awarded a contract with an executive agency. (3)  Inspector general The term Inspector General means an Inspector General appointed under chapter 4 of title 5. (b)  Prohibition of Reprisals An employee of a contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a Member of Congress or an authorized official of an executive agency or the Department of Justice information relating to a substantial violation of law related to a contract (including the competition for, or negotiation of, a contract). (c)  Investigation of Complaints An individual who believes that the individual has been subjected to a reprisal prohibited by subsection (b) may submit a complaint to the Inspector General of the executive agency. Unless the Inspector General determines that the complaint is frivolous, the Inspector General shall investigate the complaint and, on completion of the investigation, submit a report of the findings of the investigation to the individual, the contractor concerned, and the head of the agency. If the executive agency does not have an Inspector General, the duties of the Inspector General under this section shall be performed by an official designated by the head of the executive agency. (d)  Remedy and Enforcement Authority. (1)  Actions contractor may be ordered to take If the head of an executive agency determines that a contractor has subjected an individual to a reprisal prohibited by subsection (b), the head of the executive agency may take one or more of the following actions: (A)  Abatement Order the contractor to take affirmative action to abate the reprisal. (B)  Reinstatement Order the contractor to reinstate the individual to the position that the individual held before the reprisal, together with the compensation (including back pay), employment benefits, and other terms and conditions of employment that would apply to the individual in that position if the reprisal had not been taken. (C)  Payment Order the contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys fees and expert witnesses fees) that the complainant reasonably incurred for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive agency. (2)  Enforcement order When a contractor fails to comply with an order issued under paragraph (1), the head of the executive agency shall file an action for enforcement of the order in the United States district court for a district in which the reprisal was found to have occurred. In an action brought under this paragraph, the court may grant appropriate relief, including injunctive relief and compensatory and exemplary damages. (3)  Review of enforcement order A person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the orders conformance with this subsection, and regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. A petition seeking review must be filed no more than 60 days after the head of the agency issues the order. Review shall conform to chapter 7 of title 5. (e)  Scope of Section This section does not (1) authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (b); or (2) modify or derogate from a right or remedy otherwise available to the employee. (f)  Four-year Suspension of Effectiveness While Pilot Program Is in Effect While section 4712 1 1 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3796 Pub. L. 112239, div. A, title VIII,  828(c) Jan. 2, 2013 126 Stat. 1841 Pub. L. 117286,  4(b)(72) Dec. 27, 2022 136 Stat. 4351        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4705(a) 41:265(e). June 30, 1949, ch. 288 Pub. L. 103355, title VI,  6006 Oct. 13, 1994 108 Stat. 3365 Pub. L. 104106, title XLIII,  4321(e)(8) Feb. 10, 1996 110 Stat. 675 4705(b) 41:265(a). 4705(c) 41:265(b). 4705(d) 41:265(c). 4705(e) 41:265(d). In subsection (d)(2), the word contractor is substituted for person for clarity and for consistency with subsection (d)(1). Editorial Notes  References in Text Section 4712 of this title Pub. L. 114261,  1(a)(3)(A) Dec. 14, 2016 130 Stat. 1362 Amendments 2022Subsec. (a)(3). Pub. L. 117286 2013Subsec. (f). Pub. L. 112239  4706. Examination of facilities and records of contractor (a)  Definition In this section, the term records includes books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether the items are in written form, in the form of computer data, or in any other form. (b)  Agency Authority. (1)  Inspection of plant and audit of records The head of an executive agency, acting through an authorized representative, may inspect the plant and audit the records of (A) a contractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable contract, or any combination of those contracts, the executive agency makes under this division; and (B) a subcontractor performing a cost-reimbursement, incentive, time-and-materials, labor-hour, or price-redeterminable subcontract, or any combination of those subcontracts, under a contract referred to in subparagraph (A). (2)  Examination of records The head of an executive agency, acting through an authorized representative, may, for the purpose of evaluating the accuracy, completeness, and currency of certified cost or pricing data required to be submitted pursuant to chapter 35 of this title with respect to a contract or subcontract, examine all records of the contractor or subcontractor related to (A) the proposal for the contract or subcontract; (B) the discussions conducted on the proposal; (C) pricing of the contract or subcontract; or (D) performance of the contract or subcontract. (c)  Subpoena Power. (1)  Authority to require the production of records The Inspector General of an executive agency appointed under section 403 or 415 of title 5 or, on request of the head of an executive agency, the Director of the Defense Contract Audit Agency (or any successor agency) of the Department of Defense or the Inspector General of the General Services Administration may require by subpoena the production of records of a contractor, access to which is provided for that executive agency by subsection (b). (2)  Enforcement of subpoena A subpoena under paragraph (1), in the case of contumacy or refusal to obey, is enforceable by order of an appropriate United States district court. (3)  Authority not delegable The authority provided by paragraph (1) may not be delegated. (4)  Report In the year following a year in which authority provided in paragraph (1) is exercised for an executive agency, the head of the executive agency shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Government Reform of the House of Representatives a report on the exercise of the authority during the preceding year and the reasons why the authority was exercised in any instance. (d)  Authority of Comptroller General. (1)  In general Except as provided in paragraph (2), each contract awarded after using procedures other than sealed bid procedures shall provide that the Comptroller General and representatives of the Comptroller General may examine records of the contractor, or any of its subcontractors, that directly pertain to, and involve transactions relating to, the contract or subcontract and to interview any current employee regarding the transactions. (2)  Exception for foreign contractor or subcontractor Paragraph (1) does not apply to a contract or subcontract with a foreign contractor or foreign subcontractor if the executive agency concerned determines, with the concurrence of the Comptroller General or the designee of the Comptroller General, that applying paragraph (1) to the contract or subcontract would not be in the public interest. The concurrence of the Comptroller General or the designee is not required when (A) the contractor or subcontractor is (i) the government of a foreign country or an agency of that government; or (ii) precluded by the laws of the country involved from making its records available for examination; and (B) the executive agency determines, after taking into account the price and availability of the property and services from United States sources, that the public interest would be best served by not applying paragraph (1). (3)  Additional records not required Paragraph (1) does not require a contractor or subcontractor to create or maintain a record that the contractor or subcontractor does not maintain in the ordinary course of business or pursuant to another law. (e)  Limitation on Audits Relating to Indirect Costs An executive agency may not perform an audit of indirect costs under a contract, subcontract, or modification before or after entering into the contract, subcontract, or modification when the contracting officer determines that the objectives of the audit can reasonably be met by accepting the results of an audit that was conducted by another department or agency of the Federal Government within one year preceding the date of the contracting officers determination. (f)  Expiration of Authority The authority of an executive agency under subsection (b) and the authority of the Comptroller General under subsection (d) shall expire 3 years after final payment under the contract or subcontract. (g)  Inapplicability to Certain Contracts This section does not apply to the following contracts: (1) Contracts for utility services at rates not exceeding those established to apply uniformly to the public, plus any applicable reasonable connection charge. (2) A contract or subcontract that is not greater than the simplified acquisition threshold. (h)  Electronic Form Allowed This section does not preclude a contractor from duplicating or storing original records in electronic form. (i)  Original Records Not Required An executive agency shall not require a contractor or subcontractor to provide original records in an audit carried out pursuant to this section if the contractor or subcontractor provides photographic or electronic images of the original records and meets the following requirements: (1)  Preservation procedures established The contractor or subcontractor has established procedures to ensure that the imaging process preserves the integrity, reliability, and security of the original records. (2)  Indexing system maintained The contractor or subcontractor maintains an effective indexing system to permit timely and convenient access to the imaged records. (3)  Original records retained The contractor or subcontractor retains the original records for a minimum of one year after imaging to permit periodic validation of the imaging systems. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3797 Pub. L. 117286,  4(b)(73) Dec. 27, 2022 136 Stat. 4351        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4706(a) 41:254d(i). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2251(a) Oct. 13, 1994 108 Stat. 3318 4706(b)(1) 41:254d(a)(1). 4706(b)(2) 41:254d(a)(2). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2251(a) Oct. 13, 1994 108 Stat. 3318 Pub. L. 104106, title XLIII,  4321(e)(5) Feb. 10, 1996 110 Stat. 675 4706(c) 41:254d(b). 4706(d) 41:254d(c). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2251(a) Oct. 13, 1994 108 Stat. 3319 Pub. L. 110417, title VIII,  871(a) Oct. 14, 2008 4706(e) 41:254d(d). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2251(a) Oct. 13, 1994 108 Stat. 3319 Pub. L. 104201, title VIII,  808(b) Sept. 23, 1996 110 Stat. 2607 4706(f) 41:254d(e). 4706(g) 41:254d(f). June 30, 1949, ch. 288 Pub. L. 103355, title II,  2251(a) Oct. 13, 1994 108 Stat. 3320 4706(h) 41:254d(g). 4706(i) 41:254d(h). In subsection (c)(4), the words Committee on Oversight and Government Reform are substituted for Committee on Government Operations on authority of section 1(a)(6) of Public Law 10414 January 6, 1999 January 5, 2007 October 9, 2004 Editorial Notes Amendments 2022Subsec. (c)(1). Pub. L. 117286 Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023  4707. Remission of liquidated damages  When a contract made on behalf of the Federal Government by the head of a Federal agency, or by an authorized officer of the agency, includes a provision for liquidated damages for delay, the Secretary of the Treasury on recommendation of the head of the agency may remit any part of the damages as the Secretary of the Treasury believes is just and equitable. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3799        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4707 41:256a. Sept. 5, 1950, ch. 849,  10(a) 64 Stat. 591 Pub. L. 104316, title II,  202(u) Oct. 19, 1996 110 Stat. 3845  4708. Payment of reimbursable indirect costs in cost-type research and development contracts with educational institutions  A cost-type research and development contract (including a grant) with a university, college, or other educational institution may provide for payment of reimbursable indirect costs on the basis of predetermined fixed-percentage rates applied to the total of the reimbursable direct costs incurred or to an element of the total of the reimbursable direct costs incurred. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3799        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4708 41:254a. Pub. L. 87638 Sept. 5, 1962 76 Stat. 437 The words On and after September 5, 1962  4709. Implementation of electronic commerce capability (a)  Role of Head of Executive Agency The head of each executive agency shall implement the electronic commerce capability required by section 2301 of this title (b)  Program Manager The head of each executive agency shall designate a program manager to implement the electronic commerce capability for the agency. The program manager reports directly to an official at a level not lower than the senior procurement executive designated for the agency under section 1702(c) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3800        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4709 41:252c. June 30, 1949, ch. 288 Pub. L. 103355, title IX,  9003 Oct. 13, 1994 108 Stat. 3403 Pub. L. 10585, title VIII,  850(f)(4)(A) Nov. 18, 1997 111 Stat. 1850  4710. Limitations on tiering of subcontractors (a)  Definition In this section, the term executive agency has the same meaning given in section 133 of this title (b)  Regulations For executive agencies other than the Department of Defense, the Federal Acquisition Regulation shall (1) require contractors to minimize the excessive use of subcontractors, or of tiers of subcontractors, that add no or negligible value; and (2) ensure that neither a contractor nor a subcontractor receives indirect costs or profit on work performed by a lower-tier subcontractor to which the higher-tier contractor or subcontractor adds no or negligible value (but not to limit charges for indirect costs and profit based on the direct costs of managing lower-tier subcontracts). (c)  Covered Contracts This section applies to any cost-reimbursement type contract or task or delivery order in an amount greater than the simplified acquisition threshold (as defined by section 134 of this title (d)  Rule of Construction Nothing in this section shall be construed as limiting the ability of the Department of Defense to implement more restrictive limitations on the tiering of subcontractors. (e)  Applicability The Department of Defense shall continue to be subject to guidance on limitations on tiering of subcontractors issued by the Department of Defense pursuant to section 852 of the John Warner National Defense Authorization Act for Fiscal Year 2007 ( Public Law 109364 10 U.S.C. 2324 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3800        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4710 41:254b note. Pub. L. 110417 Oct. 14, 2008 122 Stat. 4551 In subsection (b), the words Not later than one year after the date of the enactment of this Act are omitted because of section 6(f) of the bill. The word shall is substituted for the words shall be amended to reflect the permanence of the provision.  4711. Linking of award and incentive fees to acquisition outcomes (a)  Definition In this section, the term executive agency has the same meaning given in section 133 of this title (b)  Guidance for Executive Agencies on Linking of Award and Incentive Fees to Acquisition Outcomes The Federal Acquisition Regulation shall provide executive agencies other than the Department of Defense with instructions, including definitions, on the appropriate use of award and incentive fees in Federal acquisition programs. (c)  Elements The regulations under subsection (b) shall (1) ensure that all new contracts using award fees link the fees to acquisition outcomes (which shall be defined in terms of program cost, schedule, and performance); (2) establish standards for identifying the appropriate level of officials authorized to approve the use of award and incentive fees in new contracts; (3) provide guidance on the circumstances in which contractor performance may be judged to be excellent or superior and the percentage of the available award fee which contractors should be paid for the performance; (4) establish standards for determining the percentage of the available award fee, if any, which contractors should be paid for performance that is judged to be acceptable, average, expected, good, or satisfactory; (5) ensure that no award fee may be paid for contractor performance that is judged to be below satisfactory performance or performance that does not meet the basic requirements of the contract; (6) provide specific direction on the circumstances, if any, in which it may be appropriate to roll over award fees that are not earned in one award fee period to a subsequent award fee period or periods; (7) ensure consistent use of guidelines and definitions relating to award and incentive fees across the Federal Government; (8) ensure that each executive agency (A) collects relevant data on award and incentive fees paid to contractors; and (B) has mechanisms in place to evaluate the data on a regular basis; (9) include performance measures to evaluate the effectiveness of award and incentive fees as a tool for improving contractor performance and achieving desired program outcomes; and (10) provide mechanisms for sharing proven incentive strategies for the acquisition of different types of products and services among contracting and program management officials. (d)  Guidance for Department of Defense The Department of Defense shall continue to be subject to guidance on award and incentive fees issued by the Secretary of Defense pursuant to section 814 of the John Warner National Defense Authorization Act for Fiscal Year 2007 ( Public Law 109364 10 U.S.C. 2302 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3800        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  4711 41:251 note. Pub. L. 110417 Oct. 14, 2008 122 Stat. 4551 In subsection (b), the words Not later than 1 year after the date of the enactment of this Act are omitted because of section 6(f) of the bill. The words shall provide are substituted for shall be amended to provide to reflect the permanence of the provision.  4712. Enhancement of contractor protection from reprisal for disclosure of certain information (a)  Prohibition of Reprisals (1)  In general An employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body described in paragraph (2) information that the employee reasonably believes is evidence of gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant. (2)  Persons and bodies covered The persons and bodies described in this paragraph are the persons and bodies as follows: (A) A Member of Congress or a representative of a committee of Congress. (B) An Inspector General. (C) The Government Accountability Office. (D) A Federal employee responsible for contract or grant oversight or management at the relevant agency. (E) An authorized official of the Department of Justice or other law enforcement agency. (F) A court or grand jury. (G) A management official or other employee of the contractor, subcontractor, grantee, subgrantee, or personal services contractor who has the responsibility to investigate, discover, or address misconduct. (3)  Rules of construction For the purposes of paragraph (1) (A) an employee who initiates or provides evidence of contractor, subcontractor, grantee, subgrantee, or personal services contractor misconduct in any judicial or administrative proceeding relating to waste, fraud, or abuse on a Federal contract or grant shall be deemed to have made a disclosure covered by such paragraph; and (B) a reprisal described in paragraph (1) is prohibited even if it is undertaken at the request of an executive branch official, unless the request takes the form of a non-discretionary directive and is within the authority of the executive branch official making the request. (b)  Investigation of Complaints (1)  Submission of complaint A person who believes that the person has been subjected to a reprisal prohibited by subsection (a) may submit a complaint to the Inspector General of the executive agency involved. Unless the Inspector General determines that the complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant, the Inspector General shall investigate the complaint and, upon completion of such investigation, submit a report of the findings of the investigation to the person, the contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned, and the head of the agency. (2)  Inspector general action (A)  Determination or submission of report on findings Except as provided under subparagraph (B), the Inspector General shall make a determination that a complaint is frivolous, fails to allege a violation of the prohibition in subsection (a), or has previously been addressed in another Federal or State judicial or administrative proceeding initiated by the complainant or submit a report under paragraph (1) within 180 days after receiving the complaint. (B)  Extension of time If the Inspector General is unable to complete an investigation in time to submit a report within the 180-day period specified in subparagraph (A) and the person submitting the complaint agrees to an extension of time, the Inspector General shall submit a report under paragraph (1) within such additional period of time, up to 180 days, as shall be agreed upon between the Inspector General and the person submitting the complaint. (3)  Prohibition on disclosure The Inspector General may not respond to any inquiry or disclose any information from or about any person alleging the reprisal, except to the extent that such response or disclosure is (A) made with the consent of the person alleging the reprisal; (B) made in accordance with the provisions of section 552a of title 5 (C) necessary to conduct an investigation of the alleged reprisal. (4)  Time limitation A complaint may not be brought under this subsection more than three years after the date on which the alleged reprisal took place. (c)  Remedy and Enforcement Authority (1)  In general Not later than 30 days after receiving an Inspector General report pursuant to subsection (b), the head of the executive agency concerned shall determine whether there is sufficient basis to conclude that the contractor, subcontractor, grantee, subgrantee, or personal services contractor concerned has subjected the complainant to a reprisal prohibited by subsection (a) and shall either issue an order denying relief or shall take one or more of the following actions: (A) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to take affirmative action to abate the reprisal. (B) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to reinstate the person to the position that the person held before the reprisal, together with compensatory damages (including back pay), employment benefits, and other terms and conditions of employment that would apply to the person in that position if the reprisal had not been taken. (C) Order the contractor, subcontractor, grantee, subgrantee, or personal services contractor to pay the complainant an amount equal to the aggregate amount of all costs and expenses (including attorneys fees and expert witnesses fees) that were reasonably incurred by the complainant for, or in connection with, bringing the complaint regarding the reprisal, as determined by the head of the executive agency. (D) Consider disciplinary or corrective action against any official of the executive agency, if appropriate. (2)  Exhaustion of remedies If the head of an executive agency issues an order denying relief under paragraph (1) or has not issued an order within 210 days after the submission of a complaint under subsection (b), or in the case of an extension of time under paragraph (b)(2)(B), not later than 30 days after the expiration of the extension of time, and there is no showing that such delay is due to the bad faith of the complainant, the complainant shall be deemed to have exhausted all administrative remedies with respect to the complaint, and the complainant may bring a de novo action at law or equity against the contractor, subcontractor, grantee, subgrantee, or personal services contractor to seek compensatory damages and other relief available under this section in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Such an action shall, at the request of either party to the action, be tried by the court with a jury. An action under this paragraph may not be brought more than two years after the date on which remedies are deemed to have been exhausted. (3)  Admissibility of evidence An Inspector General determination and an agency head order denying relief under paragraph (2) shall be admissible in evidence in any de novo action at law or equity brought pursuant to this subsection. (4)  Enforcement of orders Whenever a person fails to comply with an order issued under paragraph (1), the head of the executive agency concerned shall file an action for enforcement of such order in the United States district court for a district in which the reprisal was found to have occurred. In any action brought under this paragraph, the court may grant appropriate relief, including injunctive relief, compensatory and exemplary damages, and attorney fees and costs. The person upon whose behalf an order was issued may also file such an action or join in an action filed by the head of the executive agency. (5)  Judicial review Any person adversely affected or aggrieved by an order issued under paragraph (1) may obtain review of the orders conformance with this subsection, and any regulations issued to carry out this section, in the United States court of appeals for a circuit in which the reprisal is alleged in the order to have occurred. No petition seeking such review may be filed more than 60 days after issuance of the order by the head of the executive agency. Review shall conform to chapter 7 of title 5. Filing such an appeal shall not act to stay the enforcement of the order of the head of an executive agency, unless a stay is specifically entered by the court. (6)  Burdens of proof The legal burdens of proof specified in section 1221(e) of title 5 (7)  Rights and remedies not waivable The rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment. (d)  Notification of Employees The head of each executive agency shall ensure that contractors, subcontractors, grantees, subgrantees, and personal services contractors of the agency inform their employees in writing of the rights and remedies provided under this section, in the predominant native language of the workforce. (e)  Construction Nothing in this section may be construed to authorize the discharge of, demotion of, or discrimination against an employee for a disclosure other than a disclosure protected by subsection (a) or to modify or derogate from a right or remedy otherwise available to the employee. (f)  Exceptions (1) This section shall not apply to any element of the intelligence community, as defined in section 3(4) of the National Security Act of 1947 ( 50 U.S.C. 401a(4) (2) This section shall not apply to any disclosure made by an employee of a contractor, subcontractor, grantee, subgrantee, or personal services contractor of an element of the intelligence community if such disclosure (A) relates to an activity of an element of the intelligence community; or (B) was discovered during contract, subcontract, grantee, subgrantee, or personal services contractor services provided to an element of the intelligence community. (g)  Definitions In this section: (1) The term abuse of authority means an arbitrary and capricious exercise of authority that is inconsistent with the mission of the executive agency concerned or the successful performance of a contract or grant of such agency. (2) The term Inspector General means an Inspector General appointed under chapter 4 of title 5 and any Inspector General that receives funding from, or has oversight over contracts or grants awarded for or on behalf of, the executive agency concerned. (h)  Construction Nothing in this section, or the amendments made by this section, 1 1 (Added Pub. L. 112239, div. A, title VIII,  828(a)(1) Jan. 2, 2013 126 Stat. 1837 Pub. L. 11366, div. A, title X,  1091(e) Dec. 26, 2013 127 Stat. 876 Pub. L. 114261,  1(a)(2) Dec. 14, 2016 130 Stat. 1362 Pub. L. 116260, div. U, title VIII,  801 Dec. 27, 2020 134 Stat. 2297 Pub. L. 117263, div. A, title VIII,  807(b) Dec. 23, 2022 136 Stat. 2704 Pub. L. 117286,  4(b)(74) Dec. 27, 2022 136 Stat. 4351  Editorial Notes Amendments 2022Subsec. (a)(1). Pub. L. 117263,  807(b)(1)(A) Subsec. (a)(2). Pub. L. 117263,  807(b)(1)(B) Subsec. (a)(3). Pub. L. 117263,  807(b)(1)(C) Subsec. (b)(1). Pub. L. 117263,  807(b)(2) Subsec. (c)(1). Pub. L. 117263,  807(b)(3)(A)(i) Subsec. (c)(1)(A). Pub. L. 117263,  807(b)(3)(A)(ii) Subsec. (c)(1)(B). Pub. L. 117263,  807(b)(3)(A)(iii) Subsec. (c)(1)(C). Pub. L. 117263,  807(b)(3)(A)(iv) Subsec. (c)(1)(D). Pub. L. 117263,  807(b)(3)(A)(v) Subsec. (c)(2). Pub. L. 117263,  807(b)(3)(B) Subsec. (d). Pub. L. 117263,  807(b)(4) Subsec. (f)(2). Pub. L. 117263,  807(b)(5) Subsec. (g)(2). Pub. L. 117286 2020Subsec. (a)(2)(G). Pub. L. 116260,  801(1) Subsec. (a)(3)(A). Pub. L. 116260,  801(2) Subsec. (b)(1). Pub. L. 116260,  801(3) Subsec. (c). Pub. L. 116260,  801(4) Subsec. (d). Pub. L. 116260,  801(5) Subsec. (f). Pub. L. 116260,  801(6) 2016 Pub. L. 114261,  1(a)(3)(A)(i) Subsec. (a)(1). Pub. L. 114261,  1(a)(2) Subsec. (i). Pub. L. 114261,  1(a)(3)(A)(ii) 2013Subsec. (i). Pub. L. 11366 Statutory Notes and Related Subsidiaries Effective Date of 2013 Amendment Pub. L. 112239, div. A, title VIII,  828(b) Jan. 2, 2013 126 Stat. 1840  (1)  In general The amendments made by subsection (a) [enacting this section] shall take effect on the date that is 180 days after the date of the enactment of this Act [ Jan. 2, 2013 section 4712 of title 41 (A) all contracts and grants awarded on or after such date; (B) all task orders entered on or after such date pursuant to contracts awarded before, on, or after such date; and (C) all contracts awarded before such date that are modified to include a contract clause providing for the applicability of such amendments. (2)  Revision of federal acquisition regulation Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulation shall be revised to implement the requirements arising under the amendments made by this section [enacting this section and amending sections 4310 and 4705 of this title]. (3)  Inclusion of contract clause in contracts awarded before effective date At the time of any major modification to a contract that was awarded before the date that is 180 days after the date of the enactment of this Act [ Jan. 2, 2013  4713. Authorities relating to mitigating supply chain risks in the procurement of covered articles (a)  Authority Subject to subsection (b), the head of an executive agency may carry out a covered procurement action. (b)  Determination and Notification Except as authorized by subsection (c) to address an urgent national security interest, the head of an executive agency may exercise the authority provided in subsection (a) only after (1) obtaining a joint recommendation, in unclassified or classified form, from the chief acquisition officer and the chief information officer of the agency, or officials performing similar functions in the case of executive agencies that do not have such officials, which includes a review of any risk assessment made available by the executive agency identified under section 1323(a)(3) of this title (2) providing notice of the joint recommendation described in paragraph (1) to any source named in the joint recommendation advising (A) that a recommendation is being considered or has been obtained; (B) to the extent consistent with the national security and law enforcement interests, of information that forms the basis for the recommendation; (C) that, within 30 days after receipt of the notice, the source may submit information and argument in opposition to the recommendation; and (D) of the procedures governing the consideration of the submission and the possible exercise of the authority provided in subsection (a); (3) making a determination in writing, in unclassified or classified form, after considering any information submitted by a source under paragraph (2) and in consultation with the chief information security officer of the agency, that (A) use of the authority under subsection (a) is necessary to protect national security by reducing supply chain risk; (B) less intrusive measures are not reasonably available to reduce such supply chain risk; and (C) the use of such authorities will apply to a single covered procurement or a class of covered procurements, and otherwise specifies the scope of the determination; and (4) providing a classified or unclassified notice of the determination made under paragraph (3) to the appropriate congressional committees and leadership that includes (A) the joint recommendation described in paragraph (1); (B) a summary of any risk assessment reviewed in support of the joint recommendation required by paragraph (1); and (C) a summary of the basis for the determination, including a discussion of less intrusive measures that were considered and why such measures were not reasonably available to reduce supply chain risk. (c)  Procedures To Address Urgent National Security Interests In any case in which the head of an executive agency determines that an urgent national security interest requires the immediate exercise of the authority provided in subsection (a), the head of the agency (1) may, to the extent necessary to address such national security interest, and subject to the conditions in paragraph (2) (A) temporarily delay the notice required by subsection (b)(2); (B) make the determination required by subsection (b)(3), regardless of whether the notice required by subsection (b)(2) has been provided or whether the notified source has submitted any information in response to such notice; (C) temporarily delay the notice required by subsection (b)(4); and (D) exercise the authority provided in subsection (a) in accordance with such determination within 60 calendar days after the day the determination is made; and (2) shall take actions necessary to comply with all requirements of subsection (b) as soon as practicable after addressing the urgent national security interest, including (A) providing the notice required by subsection (b)(2); (B) promptly considering any information submitted by the source in response to such notice, and making any appropriate modifications to the determination based on such information; (C) providing the notice required by subsection (b)(4), including a description of the urgent national security interest, and any modifications to the determination made in accordance with subparagraph (B); and (D) providing notice to the appropriate congressional committees and leadership within 7 calendar days of the covered procurement actions taken under this section. (d)  Confidentiality The notice required by subsection (b)(2) shall be kept confidential until a determination with respect to a covered procurement action has been made pursuant to subsection (b)(3). (e)  Delegation The head of an executive agency may not delegate the authority provided in subsection (a) or the responsibility identified in subsection (f) to an official below the level one level below the Deputy Secretary or Principal Deputy Director. (f)  Annual Review of Determinations The head of an executive agency shall conduct an annual review of all determinations made by such head under subsection (b) and promptly amend any covered procurement action as appropriate. (g)  Regulations The Federal Acquisition Regulatory Council shall prescribe such regulations as may be necessary to carry out this section. (h)  Reports Required Not less frequently than annually, the head of each executive agency that exercised the authority provided in subsection (a) or (c) during the preceding 12-month period shall submit to the appropriate congressional committees and leadership a report summarizing the actions taken by the agency under this section during that 12-month period. (i)  Rule of Construction Nothing in this section shall be construed to authorize the head of an executive agency to carry out a covered procurement action based solely on the fact of foreign ownership of a potential procurement source that is otherwise qualified to enter into procurement contracts with the Federal Government. (j)  Termination The authority provided under subsection (a) shall terminate on December 31, 2033 (k)  Definitions In this section: (1)  Appropriate congressional committees and leadership The term appropriate congressional committees and leadership means (A) the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Select Committee on Intelligence, and the majority and minority leader of the Senate; and (B) the Committee on Oversight and Government Reform, the Committee on the Judiciary, the Committee on Appropriations, the Committee on Homeland Security, the Committee on Armed Services, the Committee on Energy and Commerce, the Permanent Select Committee on Intelligence, and the Speaker and minority leader of the House of Representatives. (2)  Covered article The term covered article means (A) information technology, as defined in section 11101 of title 40 (B) telecommunications equipment or telecommunications service, as those terms are defined in section 3 of the Communications Act of 1934 ( 47 U.S.C. 153 (C) the processing of information on a Federal or non-Federal information system, subject to the requirements of the Controlled Unclassified Information program; or (D) hardware, systems, devices, software, or services that include embedded or incidental information technology. (3)  Covered procurement The term covered procurement means (A) a source selection for a covered article involving either a performance specification, as provided in subsection (a)(3)(B) of section 3306 of this title section 113 of this title (B) the consideration of proposals for and issuance of a task or delivery order for a covered article, as provided in section 4106(d)(3) of this title (C) any contract action involving a contract for a covered article where the contract includes a clause establishing requirements relating to a supply chain risk; or (D) any other procurement in a category of procurements determined appropriate by the Federal Acquisition Regulatory Council, with the advice of the Federal Acquisition Security Council. (4)  Covered procurement action The term covered procurement action means any of the following actions, if the action takes place in the course of conducting a covered procurement: (A) The exclusion of a source that fails to meet qualification requirements established under section 3311 of this title (B) The exclusion of a source that fails to achieve an acceptable rating with regard to an evaluation factor providing for the consideration of supply chain risk in the evaluation of proposals for the award of a contract or the issuance of a task or delivery order. (C) The determination that a source is not a responsible source as defined in section 113 of this title (D) The decision to withhold consent for a contractor to subcontract with a particular source or to direct a contractor to exclude a particular source from consideration for a subcontract under the contract. (5)  Information and communications technology The term information and communications technology means (A) information technology, as defined in section 11101 of title 40 (B) information systems, as defined in section 3502 of title 44 (C) telecommunications equipment and telecommunications services, as those terms are defined in section 3 of the Communications Act of 1934 ( 47 U.S.C. 153 (6)  Supply chain risk The term supply chain risk means the risk that any person may sabotage, maliciously introduce unwanted function, extract data, or otherwise manipulate the design, integrity, manufacturing, production, distribution, installation, operation, maintenance, disposition, or retirement of covered articles so as to surveil, deny, disrupt, or otherwise manipulate the function, use, or operation of the covered articles or information stored or transmitted on the covered articles. (7)  Executive agency Notwithstanding section 3101(c)(1), this section applies to the Department of Defense, the Coast Guard, and the National Aeronautics and Space Administration. (Added Pub. L. 115390, title II,  203(a) Dec. 21, 2018 132 Stat. 5189 Pub. L. 117263, div. E, title LIX,  5949(k)(2) Dec. 23, 2022 136 Stat. 3492  Editorial Notes  References in Text Section 3101(c)(1), referred to in subsec. (k)(7), probably means section 3101(c)(1) of this title Amendments 2022Subsec. (j). Pub. L. 117263 December 31, 2033 Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019 Jan. 9, 2023 Effective Date Pub. L. 115390, title II,  203(c) Dec. 21, 2018 132 Stat. 5192 The amendments made by this section [enacting this section] shall take effect on the date that is 90 days after the date of the enactment of this Act [ Dec. 21, 2018 Title II of Pub. L. 115390 Dec. 21, 2018 section 205 of Pub. L. 115390 section 1321 of this title Prohibition on Certain Semiconductor Products and Services Pub. L. 117263, div. E, title LIX,  5949 Dec. 23, 2022 136 Stat. 3485  (a)  Prohibition on Use or Procurement. (1)  In general The head of an executive agency may not (A) procure or obtain, or extend or renew a contract to procure or obtain, any electronic parts, products, or services that include covered semiconductor products or services; or (B) enter into a contract (or extend or renew a contract) with an entity to procure or obtain electronic parts or products that use any electronic parts or products that include covered semiconductor products or services. (2)  Rule of construction. (A)  In general Nothing in paragraph (1) shall be construed (i) to require any covered semiconductor products or services resident in equipment, systems, or services as of the day before the applicable effective date specified in subsection (c) to be removed or replaced; (ii) to prohibit or limit the utilization of such covered semiconductor products or services throughout the lifecycle of such existing equipment; (iii) to require the recipient of a Federal contract, grant, loan, or loan guarantee to replace covered semiconductor products or services resident in equipment, systems, or services before the effective date specified in subsection (c); or (iv) to require the Federal Communications Commission to designate covered semiconductor products or services to its Covered Communications Equipment or Services List maintained under section 2 of the Secured and Trusted Communications Networks Act of 2019 ( 47 U.S.C. 1603 47 U.S.C. 1601 (B)  Contracting prohibition Nothing in paragraph (1)(B) shall be construed to cover products or services that include covered semiconductor products or services in a system that is not a critical system. (b)  Waiver Authority. (1)  Secretary of defense The Secretary of Defense may provide a waiver on a date later than the effective date described in subsection (c) if the Secretary determines the waiver is in the critical national security interests of the United States. (2)  Director of national intelligence The Director of National Intelligence may provide a waiver on a date later than the effective date described in subsection (c) if the Director determines the waiver is in the critical national security interests of the United States. (3)  Secretary of commerce The Secretary of Commerce, in consultation with the Director of National Intelligence or the Secretary of Defense, may provide a waiver on a date later than the effective date described in subsection (c) if the Secretary determines the waiver is in the critical national security interests of the United States. (4)  Secretary of homeland security The Secretary of Homeland Security, in consultation with the Director of National Intelligence or the Secretary of Defense, may provide a waiver on a date later than the effective date described in subsection (c) if the Secretary determines the waiver is in the critical national security interests of the United States. (5)  Secretary of energy The Secretary of Energy, in consultation with the Director of National Intelligence or the Secretary of Defense, may provide a waiver on a date later than the effective date described in subsection (c) if the Secretary determines the waiver is in the critical national security interests of the United States. (6)  Executive agencies The head of an executive agency may waive, for a renewable period of not more than two years per waiver, the prohibitions under subsection (a) if (A) the head of the agency, in consultation with the Secretary of Commerce, determines that no compliant product or service is available to be procured as, and when, needed at United States market prices or a price that is not considered prohibitively expensive; and (B) the head of the agency, in consultation with the Secretary of Defense or the Director of National Intelligence, determines that such waiver could not reasonably be expected to compromise the critical national security interests of the United States. (7)  Report to congress Not later than 30 days after granting a waiver under this subsection, the head of the executive agency granting such waiver shall submit to the appropriate committees of Congress and leadership a report with a notification of such waiver, including a justification for the waiver. (c)  Effective Dates and Regulations. (1)  Effective date The prohibitions under subsection (a) shall take effect five years after the date of the enactment of this Act [ Dec. 23, 2022 (2)  Regulations Not later than three years after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall prescribe regulations implementing the prohibitions under subsection (a), including a requirement for prime contractors to incorporate the substance of such prohibitions and applicable implementing contract clauses into contracts for the supply of electronic parts or products. (d)  Office of Management and Budget Report and Briefing Not later than 270 days after the effective date described in subsection (c)(1), the Director of the Office of Management and Budget, in coordination with the Director of National Intelligence and the National Cyber Director, shall provide to the appropriate committees of Congress and leadership a report and briefing on (1) the implementation of the prohibitions under subsection (a), including any challenges in the implementation; and (2) the effectiveness and utility of the waiver authority under subsection (b). (e)  Analysis, Assessment, and Strategy Not later than 180 days after the date of the enactment of this Act, the Secretary of Commerce, in coordination with the Secretary of Defense, the Secretary of Homeland Security, the Director of National Intelligence, and the Secretary of Energy and, to the greatest extent practicable, leveraging relevant previous analyses and assessments, shall (1) conduct an analysis of semiconductor design and production capacity domestically and by allied or partner countries required to meet the needs of the Federal Government, including analyses regarding (A) semiconductors critical to national security, as determined by the Secretary of Commerce, in consultation with the Secretary of Defense and the Director of National Intelligence, in accordance with section 9902(a)(6)(A)(i) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ( Public Law 116283 15 U.S.C. 4652(a)(6)(A)(i) (B) semiconductors classified as legacy semiconductors pursuant to section 9902(a)(6)(A)(i) of William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ( Public Law 116283 (2) assess the risk posed by the presence of covered semiconductor products or services in Federal systems; (3) assess the risk posed by the presence of covered semiconductor products or services in the supply chains of Federal contractors and subcontractors, including for non-Federal systems; (4) develop a strategy to (A) improve the availability of domestic semiconductor design and production capacity required to meet the requirements of the Federal Government; (B) support semiconductor product and service suppliers seeking to contract with domestic, allied, or partner semiconductor producers and to improve supply chain traceability, including to meet the prohibitions under subsection (a); and (C) either certify the feasibility of implementing such prohibitions or exercising waiver authorities under subsection (b), to ensure uninterrupted Federal Government access to required semiconductor products and services; and (5) provide the results of the analysis, assessment, and strategy developed under paragraphs (1) through (4) to the Federal Acquisition Security Council. (f)  Governmentwide Traceability and Diversification Initiative. (1)  In general Not later than two years after the date of the enactment of this Act [ Dec. 23, 2022 (2)  Elements The initiative established under paragraph (1) shall include the following elements: (A) Sharing best practices, refining microelectronics standards, such as those established pursuant to section 224 of the National Defense Authorization Act for Fiscal Year 2020 ( Public Law 11692 10 U.S.C. 4501 (B) Developing an assessment framework to inform Federal decisions on sourcing microelectronics, considering (i) chain of custody and traceability, including origin and location of design, manufacturing, distribution, shipping, and quantities; (ii) confidentiality, including protection, verification, and validation of intellectual property included in microelectronics; (iii) integrity, including (I) security weaknesses and vulnerabilities that include potential supply chain attacks; (II) risk analysis and consequence to system; (III) risk of intentional or unintentional modification or tampering; and (IV) risk of insider threats, including integrity of people and processes involved in the design and manufacturing of microelectronics; and (iv) availability, including (I) potential supply chain disruptions, including due to natural disasters or geopolitical events; (II) prioritization of parts designed and manufactured in the United States and in allied or partner countries to support and sustain the defense and technology industrial base; (III) risk associated with sourcing parts from suppliers outside of the United States and allied and partner countries, including long-term impacts on availability of microelectronics produced domestically or in allied or partner countries; and (IV) obsolescence management and counterfeit avoidance and detection. (C) Developing a process for provenance and traceability from design to disposal of microelectronics components and intellectual property contained therein implementable across the Federal acquisition system to improve reporting, data analysis, and tracking. (D) Developing and implementing policies and plans to support the following: (i) Development of domestic design and manufacturing capabilities to replace covered semiconductor products or services. (ii) Utilization of the assessment framework developed under subparagraph (B). (iii) Implementation of the strategy required under subsection (e)(4) as applicable. (iv) Identification of and integration with existing information reporting and data visualization systems in the Federal Government, including modification to such systems to track the information. (v) A requirement to document microelectronics used in systems and subsystems, including origin and location of design and manufacturing, technologies used, and quantities procured. (vi) Elimination from Federal Government supply chains of microelectronics from entities included on the Consolidated Screening List maintained by the International Trade Administration of the Department of Commerce. (3)  Coordination required In carrying out this subsection, the Secretary of Commerce shall coordinate, as necessary, with the following entities: (A) The National Science and Technology Council Subcommittee on Microelectronics Leadership. (B) The Department of Commerce semiconductor industrial advisory committee established under subsection 9906(b) of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ( Public Law 116283 15 U.S.C. 4656(b) (C) The White House Coordinator for CHIPS Implementation. (D) The Federal Acquisition Security Council (FASC). (E) The Government-Industry Working Group on Microelectronics. (F) The Joint Defense Manufacturing Technology Panel (JDMTP). (G) Standards development organizations. (g)  Federal Acquisition Security Council Not later than two years after the date of the enactment of this Act [ Dec. 23, 2022 section 1323 of title 41 (1) issue recommendations to mitigate supply chain risks relevant to Federal Government acquisition of semiconductor products and services, considering (A) the analysis, assessment, and strategy developed under subsection (e) and any related updates; (B) the standards provided under section 224 of the National Defense Authorization Act for Fiscal Year 2020 ( Public Law 11692 10 U.S.C. 4501 (C) the extent to which such recommendations would enhance the security of critical systems; (D) the extent to which such recommendations would impact Federal access to commercial technologies; and (E) any risks to the Federal Government from contracting with microelectronics suppliers that include covered semiconductor products or services in non-Federal supply chains; and (2) make recommendations to the Federal Acquisition Regulatory Council and the heads of executive agencies for any needed regulations to mitigate supply chain risks. (h)  Applicability and Responsibilities of Covered Entities and Contractors The regulations prescribed pursuant to subsection (c)(2) shall (1) provide that contractors who supply a Federal agency with electronic parts or products are responsible for (A) certifying to the non-use of covered semiconductor products or services in such parts or products; (B) detecting and avoiding the use or inclusion of such covered semiconductor products or services in such parts or products; and (C) any rework or corrective action that may be required to remedy the use or inclusion of such covered semiconductor products or services in such parts or products; (2) require covered entities to disclose to direct customers the inclusion of a covered semiconductor product or service in electronic parts, products, or services included in electronic parts, products, or services subject to the contracting prohibition under subsection (a) as to whether such supplied parts, products, or services include covered semiconductors products or services; (3) provide that a covered entity that fails to disclose the inclusion to direct customers of a covered semiconductor product or service in electronic parts, products, or services procured or obtained by an executive agency in contravention of subsection (a) shall be responsible for any rework or corrective action that may be required to remedy the use or inclusion of such covered semiconductor product or service; (4) provide that the costs of covered semiconductor products or services, suspect semiconductor products, and any rework or corrective action that may be required to remedy the use or inclusion of such products are not allowable costs for Federal contracts; (5) provide that (A) any covered entity or Federal contractor or subcontractor who becomes aware, or has reason to suspect, that any end item, component, or part of a critical system purchased by the Federal Government, or purchased by a Federal contractor or subcontractor for delivery to the Federal Government for any critical system, that contains covered semiconductor products or services shall notify appropriate Federal authorities in writing within 60 days; and (B) the Federal authorities shall report such information to the appropriate committees of Congress and leadership within 120 days; (6) provide that Federal bidders and contractors (A) may reasonably rely on the certifications of compliance from covered entities and subcontractors who supply electronic parts, products, or services when providing proposals to the Federal Government; and (B) are not required to conduct independent third party audits or other formal reviews related to such certifications; (7) provide that a Federal contractor or subcontractor that provides a notification under paragraph (5) that does not regard electronic parts or products manufactured or assembled by such Federal contractor or subcontractor shall not be subject to civil liability nor determined to not be a presently responsible contractor on the basis of such notification; and (8) provide that a Federal contractor or subcontractor that provides a notification under paragraph (5) that regards electronic parts or products manufactured or assembled by such Federal contractor or subcontractor shall not be subject to civil liability nor determined to not be a presently responsible contractor on the basis of such notification if the Federal contractor or subcontractor makes a comprehensive and documentable effort to identify and remove covered semiconductor products or services from the Federal supply. (i)  Reports. (1)  Secretary of commerce Not later than 60 days after completing the assessment required under subsection (e), the Secretary of Commerce shall submit to the appropriate committees of Congress and leadership (A) a report of the findings and recommendations of the analyses, assessment, and strategy developed under such subsection; and (B) a report on development of the microelectronics traceability and diversification initiative under subsection (f)(1). (2)  Federal acquisition security council Not later than one year after the date of the enactment of this Act [ Dec. 23, 2022 section 1325 of title 41 (A) the development of recommendations under subsection (g), including the considerations described in paragraph (1) of such subsection; and (B) as applicable, the impact of any recommendations or regulations implemented. (j)  Definitions In this section: (1)  Appropriate committees of congress and leadership The term appropriate committees of Congress and leadership means (A) the Committee on Armed Services, the Committee on Commerce, Science, and Transportation, the Committee on Homeland Security and Governmental Affairs, the Committee on Energy and Natural Resources, the Committee on Foreign Relations, the Committee on Banking, Housing, and Urban Affairs, the Select Committee on Intelligence, and the majority and minority leaders of the Senate; and (B) the Committee on Armed Services, the Committee on Energy and Commerce, the Committee on Science, Space, and Technology, the Committee on Oversight and Reform [now Committee on Oversight and Accountability], the Committee on Foreign Affairs, the Committee on Homeland Security, the Permanent Select Committee on Intelligence, and the Speaker, the majority leader, and the minority leader of the of the House of Representatives. (2)  Covered entity The term covered entity means an entity that (A) develops, domestically or abroad, a design of a semiconductor that is the direct product of United States origin technology or software; and (B) purchases covered semiconductor products or services from an entity described in subparagraph (A) or (C) of paragraph (3). (3)  Covered semiconductor product or services The term covered semiconductor product or services means any of the following: (A) A semiconductor, a semiconductor product, a product that incorporates a semiconductor product, or a service that utilizes such a product, that is designed, produced or provided by, Semiconductor Manufacturing International Corporation (SMIC) (or any subsidiary, affiliate, or successor of such entity). (B) A semiconductor, a semiconductor product, a product that incorporates a semiconductor product, or a service that utilizes such a product, that is designed, produced, or provided by ChangXin Memory Technologies (CXMT) or Yangtze Memory Technologies Corp (YMTC) (or any subsidiary, affiliate, or successor of such entities). (C) A semiconductor, semiconductor product, or semiconductor service produced or provided by an entity that the Secretary of Defense or the Secretary of Commerce, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, determines to be an entity owned or controlled by, or otherwise connected to, the government of a foreign country of concern, provided that the determination with respect to such entity is published in the Federal Register. (4)  Critical system The term critical system (A) has the meaning given the term national security system in section 11103(a)(1) of title 40 (B) shall include additional systems identified by the Federal Acquisition Security Council; (C) shall include additional systems identified by the Department of Defense, consistent with guidance provided under section 224 of the National Defense Authorization Act for Fiscal Year 2020 ( Public Law 11692 10 U.S.C. 4501 (D) shall not include a system to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications). (5)  Foreign country of concern The term foreign country of concern has the meaning given the term in paragraph (7) of section 9901 of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 ( 15 U.S.C. 4651 Public Law 117167 (k)  Extension of Federal Acquisition Security Supply Chain Act of 2018. (1)  Subchapter iii of chapter 13 of title 41, united states code  [Amended section 1328 of this title (2) [Amended this section.] (l)  Authorization of Appropriations for Federal Acquisition Security Council. (1)  In general There is authorized to be appropriated $3,000,000 for each of fiscal years 2023 through 2033 for the Office of Management and Budget to support the activities of the Federal Acquisition Security Council. (2)  Transfer authority The Director of the Office of Management and Budget may transfer funds authorized to be appropriated under paragraph (1) to other Federal agencies for the performance of work for which the funds were authorized.  4714. Prohibition on criminal history inquiries by contractors prior to conditional offer (a)  Limitation on Criminal History Inquiries. (1)  In general Except as provided in paragraphs (2) and (3), an executive agency (A) may not require that an individual or sole proprietor who submits a bid for a contract to disclose criminal history record information regarding that individual or sole proprietor before determining the apparent awardee; and (B) shall require, as a condition of receiving a Federal contract and receiving payments under such contract that the contractor may not verbally, or through written form, request the disclosure of criminal history record information regarding an applicant for a position related to work under such contract before the contractor extends a conditional offer to the applicant. (2)  Otherwise required by law The prohibition under paragraph (1) does not apply with respect to a contract if consideration of criminal history record information prior to a conditional offer with respect to the position is otherwise required by law. (3)  Exception for certain positions. (A)  In general The prohibition under paragraph (1) does not apply with respect to (i) a contract that requires an individual hired under the contract to access classified information or to have sensitive law enforcement or national security duties; or (ii) a position that the Administrator of General Services identifies under the regulations issued under subparagraph (B). (B)  Regulations. (i)  Issuance Not later than 16 months after the date of enactment of the Fair Chance to Compete for Jobs Act of 2019, the Administrator of General Services, in consultation with the Secretary of Defense, shall issue regulations identifying additional positions with respect to which the prohibition under paragraph (1) shall not apply, giving due consideration to positions that involve interaction with minors, access to sensitive information, or managing financial transactions. (ii)  Compliance with civil rights laws The regulations issued under clause (i) shall (I) be consistent with, and in no way supersede, restrict, or limit the application of title VII of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e (II) ensure that all hiring activities conducted pursuant to the regulations are conducted in a manner consistent with relevant Federal civil rights laws. (b)  Complaint Procedures The Administrator of General Services shall establish and publish procedures under which an applicant for a position with a Federal contractor may submit to the Administrator a complaint, or any other information, relating to compliance by the contractor with subsection (a)(1)(B). (c)  Action for Violations of Prohibition on Criminal History Inquiries. (1)  First violation If the head of an executive agency determines that a contractor has violated subsection (a)(1)(B), such head shall (A) notify the contractor; (B) provide 30 days after such notification for the contractor to appeal the determination; and (C) issue a written warning to the contractor that includes a description of the violation and the additional remedies that may apply for subsequent violations. (2)  Subsequent violation If the head of an executive agency determines that a contractor that was subject to paragraph (1) has committed a subsequent violation of subsection (a)(1)(B), such head shall notify the contractor, shall provide 30 days after such notification for the contractor to appeal the determination, and, in consultation with the relevant Federal agencies, may take actions, depending on the severity of the infraction and the contractors history of violations, including (A) providing written guidance to the contractor that the contractors eligibility for contracts requires compliance with this section; (B) requiring that the contractor respond within 30 days affirming that the contractor is taking steps to comply with this section; and (C) suspending payment under the contract for which the applicant was being considered until the contractor demonstrates compliance with this section. (d)  Definitions In this section: (1)  Conditional offer The term conditional offer means an offer of employment for a position related to work under a contract that is conditioned upon the results of a criminal history inquiry. (2)  Criminal history record information The term criminal history record information has the meaning given that term in section 9201 of title 5 (Added Pub. L. 11692, div. A, title XI,  1123(a)(1) Dec. 20, 2019 133 Stat. 1610  Editorial Notes  References in Text The date of enactment of the Fair Chance to Compete for Jobs Act of 2019, referred to in subsec. (a)(3)(B)(i), is the date of enactment of subtitle B ( 11211124) of title XI of div. A of Pub. L. 11692 Dec. 20, 2019 The Civil Rights Act of 1964, referred to in subsec. (a)(3)(B)(ii)(I), is Pub. L. 88352 July 2, 1964 78 Stat. 241 section 2000a of Title 42 Statutory Notes and Related Subsidiaries Effective Date Pub. L. 11692, div. A, title XI,  1123(a)(3) Dec. 20, 2019 133 Stat. 1612  Section 4714 of title 41 Dec. 20, 2019 section 1122(b)(2) of Pub. L. 11692 section 9202 of Title 5 Subtitle II Other Advertising and Contract Provisions    Chapter Sec.  61. Advertising 6101  63. General Contract Provisions 6301  65. Contracts for Materials, Supplies, Articles, and Equipment Exceeding $10,000 6501  67. Service Contract Labor Standards 6701 CHAPTER 61 ADVERTISING    Sec.  6101. Advertising requirement for Federal Government purchases and sales.  6102. Exceptions from advertising requirement.  6103. Opening of bids.  6101. Advertising requirement for Federal Government purchases and sales (a)  Definitions In this section (1)  Appropriation The term appropriation includes amounts made available by legislation under section 9104 of title 31 (2)  Federal government The term Federal Government includes the government of the District of Columbia. (b)  Purchases. (1)  In general Unless otherwise provided in the appropriation concerned or other law, purchases and contracts for supplies or services for the Federal Government may be made or entered into only after advertising for proposals for a sufficient time. (2)  Limitations on applicability Paragraph (1) does not apply when (A) the amount involved in any one case does not exceed $25,000; (B) public exigencies require the immediate delivery of articles or performance of services; (C) only one source of supply is available and the Federal Government purchasing or contracting officer so certifies; or (D) services are required to be performed by a contractor in person and are (i) of a technical and professional nature; or (ii) under Federal Government supervision and paid for on a time basis. (c)  Sales Except when otherwise authorized by law or when the reasonable value involved in any one case does not exceed $500, sales and contracts of sale by the Federal Government are governed by the requirements of this section for advertising. (d)  Application to Wholly Owned Government Corporations For wholly owned Government corporations, this section applies only to administrative transactions. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3801        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6101(a) 41:5a. Aug. 2, 1946, ch. 744,  18 60 Stat. 811 6101(b)(d) 41:5. R.S.  3709; Aug. 2, 1946, ch. 744,  9(a) 60 Stat. 809 June 30, 1949, ch. 288 63 Stat. 403 Sept. 5, 1950, ch. 849 64 Stat. 583 Pub. L. 85800,  7 Aug. 28, 1958 72 Stat. 967 Pub. L. 93356,  1 July 25, 1974 88 Stat. 390 Pub. L. 98191,  9(b) Dec. 1, 1983 97 Stat. 1332 In subsection (a), before paragraph (1), the words In this section are substituted for as used in this Act as the probable intent of Congress. Section 9(a) of the Act of August 2, 1946 60 Stat. 809 section 9104 of title 31 December 6, 1945 In subsection (c), the words as authorized by section 29 of the Surplus Property Act of 1944 (50 U.S.C. App. 1638) in section 3709 of the Revised Statutes are omitted because section 29 was repealed by section 602(a)(1) of the Federal Property and Administrative Services Act of 1949 (ch. 288, 63 Stat. 399  6102. Exceptions from advertising requirement (a)  American Battle Monuments Commission Section 6101 of this title (b)  Bureau of Interparliamentary Union for Promotion of International Arbitration Section 6101 of this title (c)  Department of State Section 6101 of this title (d)  International Committee of Aerial Legal Experts Section 6101 of this title (e)  Architect of the Capitol The purchase of supplies and equipment and the procurement of services for all branches under the Architect of the Capitol may be made in the open market according to common business practice, without compliance with section 6101 of this title (f)  Forest Products From Indian Reservations Lumber and other forest products produced by Indian enterprises from forests on Indian reservations may be sold under regulations the Secretary of the Interior prescribes, without compliance with section 6101 of this title (g)  House of Representatives Section 6101 of this title (h)  Congressional Budget Office The Director of the Congressional Budget Office may enter into agreements or contracts without regard to section 6101 of this title (i)  Senate Section 6101 of this title (j)  Librarian of Congress Section 6101 of this title section 4101 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3802 Pub. L. 115141, div. I, title I,  102 Mar. 23, 2018 132 Stat. 772 Pub. L. 117103, div. I, title I,  142(b) Mar. 15, 2022 136 Stat. 519        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6102(a) 41:6a(a). Oct. 10, 1940, ch. 851,  2(a) 54 Stat. 1110 Oct. 31, 1951, ch. 654,  3(8) 65 Stat. 708 6102(b) 41:6a(f). Oct. 10, 1940, ch. 851,  2(f) 54 Stat. 1110 6102(c) 41:6a(h). Oct. 10, 1940, ch. 851,  2(h) 54 Stat. 1110 Oct. 31, 1951, ch. 654,  3(9) 65 Stat. 708 6102(d) 41:6a(j). 6102(e) 41:6a1. Pub. L. 8990 July 27, 1965 79 Stat. 276 Pub. L. 93356,  2 July 25, 1974 88 Stat. 390 Pub. L. 98191,  9(c) Dec. 1, 1983 97 Stat. 1332 6102(f) 41:6b(d). June 24, 1940, ch. 412 54 Stat. 504 6102(g) 41:6a3. Pub. L. 1087, div. H, title I Feb. 20, 2003 117 Stat. 354 6102(h) 41:6a4. In subsections (a)(d), the words under any appropriation Act are omitted as unnecessary. In subsection (e), the words On and after July 27, 1965 In subsection (g), the words in any fiscal year are omitted as unnecessary. In subsection (h), the text of 41:6a4(b) is omitted as unnecessary. Editorial Notes Amendments 2022Subsec. (j). Pub. L. 117103 2018Subsec. (i). Pub. L. 115141 Statutory Notes and Related Subsidiaries Effective Date of 2022 Amendment Amendment by Pub. L. 117103 section 186(d) of Title 2  6103. Opening of bids  Whenever proposals for supplies have been solicited, the parties responding to the solicitation shall be notified of the time and place of the opening of the bids, and be permitted to be present either in person or by attorney. A record of each bid shall be made at the time and place of the opening of the bids. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3803        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6103 41:8. R.S.  3710. CHAPTER 63 GENERAL CONTRACT PROVISIONS    Sec.  6301. Authorization requirement.  6302. Contracts for fuel made by Secretary of the Army.  6303. Certain contracts limited to appropriated amounts.  6304. Certain contracts limited to one-year term.  6305. Prohibition on transfer of contract and certain allowable assignments.  6306. Prohibition on Members of Congress making contracts with Federal Government.  6307. Contracts with Federal Government-owned establishments and availability of appropriations.  6308. Contracts for transportation of Federal Government securities.  6309. Honorable discharge certificate in lieu of birth certificate.  Statutory Notes and Related Subsidiaries Federal Contractor Authority Pub. L. 116136, div. A, title III,  3610 Mar. 27, 2020 134 Stat. 414 Pub. L. 1172, title IV,  4015 Mar. 11, 2021 135 Stat. 80 Notwithstanding any other provision of law, and subject to the availability of appropriations, funds made available to an agency by this Act [div. A of Pub. L. 116136 September 30, 2021 January 31, 2020 Provided Public Law 116127 [ Pub. L. 116260, div. N, title X,  1002 Dec. 27, 2020 134 Stat. 2145 Section 3610 of division A of the CARES Act ( Public Law 116136 March 31, 2021 September 30, 2020 Executive Documents  Ex. Ord. No. 13658. Establishing a Minimum Wage for Contractors Ex. Ord. No. 13658, Feb. 12, 2014 May 25, 2018 By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act [of 1949], 40 U.S.C. 101 et seq Section Policy Sec Establishing a minimum wage for Federal contractors and subcontractors 29 U.S.C. 214(c) (i) $10.10 per hour beginning January 1, 2015 (ii) beginning January 1, 2016 (A) not less than the amount in effect on the date of such determination; (B) increased from such amount by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (United States city average, all items, not seasonally adjusted), or its successor publication, as determined by the Bureau of Labor Statistics; and (C) rounded to the nearest multiple of $0.05. (b) In calculating the annual percentage increase in the Consumer Price Index for purposes of subsection (a)(ii)(B) of this section, the Secretary shall compare such Consumer Price Index for the most recent month, quarter, or year available (as selected by the Secretary prior to the first year for which a minimum wage is in effect pursuant to subsection (a)(ii)(B)) with the Consumer Price Index for the same month in the preceding year, the same quarter in the preceding year, or the preceding year, respectively. (c) Nothing in this order shall excuse noncompliance with any applicable Federal or State prevailing wage law, or any applicable law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this order. Sec Application to tipped workers 29 U.S.C. 203(t) (i) $4.90 an hour, beginning on January 1, 2015 (ii) for each succeeding 1-year period until the hourly cash wage under this section equals 70 percent of the wage in effect under section 2 of this order for such period, an hourly cash wage equal to the amount determined under this section for the preceding year, increased by the lesser of: (A) $0.95; or (B) the amount necessary for the hourly cash wage under this section to equal 70 percent of the wage under section 2 of this order; and (iii) for each subsequent year, 70 percent of the wage in effect under section 2 for such year rounded to the nearest multiple of $0.05. (b) Where workers do not receive a sufficient additional amount on account of tips, when combined with the hourly cash wage paid by the employer, such that their wages are equal to the minimum wage under section 2 of this order, the cash wage paid by the employer, as set forth in this section for those workers, shall be increased such that their wages equal the minimum wage under section 2 of this order. Consistent with applicable law, if the wage required to be paid under the Service Contract Act [of 1965], 41 U.S.C. 6701 et seq Sec Regulations and Implementation October 1, 2014 (b) Within 60 days of the Secretary issuing regulations pursuant to subsection (a) of this section, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts as described in section 7(d)(i)(C) and (D) of this order, entered into after January 1, 2015 (c) Any regulations issued pursuant to this section should, to the extent practicable and consistent with section 8 of this order, incorporate existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act [of 1938], 29 U.S.C. 201 et seq 41 U.S.C. 6701 et seq 40 U.S.C. 3141 et seq Sec Enforcement (b) This order creates no rights under the Contract Disputes Act [of 1978], and disputes regarding whether a contractor has paid the wages prescribed by this order, to the extent permitted by law, shall be disposed of only as provided by the Secretary in regulations issued pursuant to this order. Sec Severability Sec General Provisions (i) the authority granted by law to an agency or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) This order shall apply only to a new contract or contract-like instrument, as defined by the Secretary in the regulations issued pursuant to section 4(a) of this order, if: (i)(A) it is a procurement contract for services or construction; (B) it is a contract or contract-like instrument for services covered by the Service Contract Act; (C) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or (D) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and (ii) the wages of workers under such contract or contract-like instrument are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act. (e) For contracts or contract-like instruments covered by the Service Contract Act or the Davis-Bacon Act, this order shall apply only to contracts or contract-like instruments at the thresholds specified in those statutes. For procurement contracts where workers wages are governed by the Fair Labor Standards Act, this order shall apply only to contracts or contract-like instruments that exceed the micro-purchase threshold, as defined in 41 U.S.C. 1902(a) (f) This order shall not apply to grants; contracts and agreements with and grants to Indian Tribes under the Indian Self-Determination and Education Assistance Act ( Public Law 93638 (g) Independent agencies are strongly encouraged to comply with the requirements of this order. Sec Effective Date (i) January 1, 2015 (ii) for contracts where an agency action is taken pursuant to section 4(b) of this order, January 1, 2015 (b) This order shall not apply to contracts or contract-like instruments entered into pursuant to solicitations issued on or before the effective date for the relevant action taken pursuant to section 4 of this order. (c) For all new contracts and contract-like instruments negotiated between the date of this order and the effective dates set forth in this section, agencies are strongly encouraged to take all steps that are reasonable and legally permissible to ensure that individuals working pursuant to those contracts and contract-like instruments are paid an hourly wage of at least $10.10 (as set forth under sections 2 and 3 of this order) as of the effective dates set forth in this section. [Ex. Ord. No. 13658, set out above, superseded, as of Jan. 30, 2022  Ex. Ord. No. 13706. Establishing Paid Sick Leave for Federal Contractors Ex. Ord. No. 13706, Sept. 7, 2015 By the authority vested in me as President by the Constitution and the laws of the United States of America, including 40 U.S.C. 121 Section Policy Sec Establishing paid sick leave for Federal contractors and subcontractors (b) A contractor may not set a limit on the total accrual of paid sick leave per year, or at any point in time, at less than 56 hours. (c) Paid sick leave earned under this order may be used by an employee for an absence resulting from: (i) physical or mental illness, injury, or medical condition; (ii) obtaining diagnosis, care, or preventive care from a health care provider; (iii) caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care described in paragraphs (i) or (ii) of this subsection or is otherwise in need of care; or (iv) domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes otherwise described in paragraphs (i) and (ii) of this subsection, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or to assist an individual related to the employee as described in paragraph (iii) of this subsection in engaging in any of these activities. (d) Paid sick leave accrued under this order shall carry over from 1 year to the next and shall be reinstated for employees rehired by a covered contractor within 12 months after a job separation. (e) The use of paid sick leave cannot be made contingent on the requesting employee finding a replacement to cover any work time to be missed. (f) The paid sick leave required by this order is in addition to a contractors obligations under 41 U.S.C. chapter 67 (Service Contract Act [of 1965]) and 40 U.S.C. chapter 31, subchapter IV (Davis-Bacon Act), and contractors may not receive credit toward their prevailing wage or fringe benefit obligations under those Acts for any paid sick leave provided in satisfaction of the requirements of this order. (g) A contractors existing paid leave policy provided in addition to the fulfillment of Service Contract Act or Davis-Bacon Act obligations, if applicable, and made available to all covered employees will satisfy the requirements of this order if the amount of paid leave is sufficient to meet the requirements of this section and if it may be used for the same purposes and under the same conditions described herein. (h) Paid sick leave shall be provided upon the oral or written request of an employee that includes the expected duration of the leave, and is made at least 7 calendar days in advance where the need for the leave is foreseeable, and in other cases as soon as is practicable. (i) Certification. (i) A contractor may only require certification issued by a health care provider for paid sick leave used for the purposes listed in subsections (c)(i), (c)(ii), or (c)(iii) of this section for employee absences of 3 or more consecutive workdays, to be provided no later than 30 days from the first day of the leave. (ii) If 3 or more consecutive days of paid sick leave is used for the purposes listed in subsection (c)(iv) of this section, documentation may be required to be provided from an appropriate individual or organization with the minimum necessary information establishing a need for the employee to be absent from work. The contractor shall not disclose any verification information and shall maintain confidentiality about the domestic violence, sexual assault, or stalking, unless the employee consents or when disclosure is required by law. (j) Nothing in this order shall require a covered contractor to make a financial payment to an employee upon a separation from employment for accrued sick leave that has not been used, but unused leave is subject to reinstatement as prescribed in subsection (d) of this section. (k) A covered contractor may not interfere with or in any other manner discriminate against an employee for taking, or attempting to take, paid sick leave as provided for under this order or in any manner asserting, or assisting any other employee in asserting, any right or claim related to this order. (l) Nothing in this order shall excuse noncompliance with or supersede any applicable Federal or State law, any applicable law or municipal ordinance, or a collective bargaining agreement requiring greater paid sick leave or leave rights than those established under this order. Sec Regulations and Implementation September 30, 2016 40 U.S.C. 121 (b) Within 60 days of the Secretary issuing regulations pursuant to subsection (a) of this section, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts as described in section 6(d)(i)(C) and (D) of this order, entered into after January 1, 2017 (c) Any regulations issued pursuant to this section should, to the extent practicable and consistent with section 7 of this order, incorporate existing definitions, procedures, remedies, and enforcement processes under the Fair Labor Standards Act [of 1938], 29 U.S.C. 201 et seq 29 U.S.C. 2601 et seq 42 U.S.C. 13925 et seq 34 U.S.C. 12291 et seq February 12, 2014 Sec Enforcement (b) This order creates no rights under the Contract Disputes Act [of 1978], and disputes regarding whether a contractor has provided employees with paid sick leave prescribed by this order, to the extent permitted by law, shall be disposed of only as provided by the Secretary in regulations issued pursuant to this order. Sec Severability Sec General Provisions (i) the authority granted by law to an executive department, agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) This order shall apply only to a new contract or contract-like instrument, as defined by the Secretary in the regulations issued pursuant to section 3(a) of this order, if: (i)(A) it is a procurement contract for services or construction; (B) it is a contract or contract-like instrument for services covered by the Service Contract Act; (C) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 CFR 4.133(b); or (D) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and (ii) the wages of employees under such contract or contract-like instrument are governed by the Davis-Bacon Act, the Service Contract Act, or the Fair Labor Standards Act, including employees who qualify for an exemption from its minimum wage and overtime provisions. (e) For contracts or contract-like instruments covered by the Service Contract Act or the Davis-Bacon Act, this order shall apply only to contracts or contract-like instruments at the thresholds specified in those statutes. For procurement contracts in which employees wages are governed by the Fair Labor Standards Act, this order shall apply only to contracts or contract-like instruments that exceed the micro-purchase threshold, as defined in 41 U.S.C. 1902(a) (f) This order shall not apply to grants; contracts and agreements with and grants to Indian Tribes under the Indian Self-Determination and Education Assistance Act ( Public Law 93638 (g) Independent agencies are strongly encouraged to comply with the requirements of this order. Sec Effective Date (i) January 1, 2017 (ii) January 1, 2017 (b) This order shall not apply to contracts or contract-like instruments that are awarded, or entered into pursuant to solicitations issued, on or before the effective date for the relevant action taken pursuant to section 3 of this order.  Barack Obama.  Executive Order No. 13838 Ex. Ord. No. 13838, May 25, 2018 Jan. 30, 2022 Apr. 27, 2021  Ex. Ord. No. 14026. Increasing the Minimum Wage for Federal Contractors Ex. Ord. No. 14026, Apr. 27, 2021 By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act [of 1949], [see] 40 U.S.C. 101 et seq Section Policy Sec. Increasing the Minimum Wage for Federal Contractors and Subcontractors 40 U.S.C. 102(4)(A) 29 U.S.C. 214(c) (i) $15.00 per hour, beginning January 30, 2022 (ii) beginning January 1, 2023 (A) not less than the amount in effect on the date of such determination; (B) increased from such amount by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (United States city average, all items, not seasonally adjusted), or its successor publication, as determined by the Bureau of Labor Statistics; and (C) rounded to the nearest multiple of $0.05. (b) In calculating the annual percentage increase in the Consumer Price Index for purposes of subsection (a)(ii)(B) of this section, the Secretary shall compare such Consumer Price Index for the most recent month, quarter, or year available (as selected by the Secretary prior to the first year for which a minimum wage is in effect pursuant to subsection (a)(ii)(B) of this section) with the Consumer Price Index for the same month in the preceding year, the same quarter in the preceding year, or the preceding year, respectively. (c) Nothing in this order shall excuse noncompliance with any applicable Federal or State prevailing wage law, or any applicable law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this order. Sec. Application to Tipped Workers 29 U.S.C. 203(t) (i) $10.50 per hour, beginning January 30, 2022 (ii) beginning January 1, 2023 (iii) beginning January 1, 2024 (b) Where workers do not receive a sufficient additional amount on account of tips, when combined with the hourly cash wage paid by the employer, such that their wages are equal to the minimum wage under section 2 of this order, the cash wage paid by the employer, as set forth in this section for those workers, shall be increased such that their wages equal the minimum wage under section 2 of this order. Consistent with applicable law, if the wage required to be paid under the Service Contract Act [of 1965], [see] 41 U.S.C. 6701 et seq Sec. Regulations and Implementation November 24, 2021 (b) Within 60 days of the Secretary issuing regulations pursuant to subsection (a) of this section, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts and contract-like instruments as described in sections 8(a)(i)(C) and (D) of this order, entered into on or after January 30, 2022 (c) Any regulations issued pursuant to this section should, to the extent practicable, incorporate existing definitions, principles, procedures, remedies, and enforcement processes under the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq 41 U.S.C. 6701 et seq 40 U.S.C. 3141 et seq February 12, 2014 41 U.S.C. 6301 Sec. Enforcement (b) This order creates no rights under the Contract Disputes Act [of 1978], [see] 41 U.S.C. 7101 et seq Sec. Revocation of Certain Presidential Actions May 25, 2018 January 30, 2022 February 12, 2014 January 30, 2022 Sec. Severability Sec. Applicability (A) it is a procurement contract or contract-like instrument for services or construction; (B) it is a contract or contract-like instrument for services covered by the Service Contract Act; (C) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 CFR 4.133(b); or (D) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public; and (ii) the wages of workers under such contract or contract-like instrument are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act. (b) For contracts or contract-like instruments covered by the Service Contract Act or the Davis-Bacon Act, this order shall apply only to contracts or contract-like instruments at the thresholds specified in those statutes. Where workers wages are governed by the Fair Labor Standards Act of 1938, this order shall apply only to procurement contracts or contract-like instruments that exceed the micro-purchase threshold, as defined in 41 U.S.C. 1902(a) (c) This order shall not apply to grants; contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act ( Public Law 93638 25 U.S.C. 5301 Sec. Effective Date (i) January 30, 2022 (ii) for contracts where an agency action is taken pursuant to section 4(b) of this order, January 30, 2022 (b) As an exception to subsection (a) of this section, where agencies have issued a solicitation before the effective date for the relevant action taken pursuant to section 4 of this order and entered into a new contract or contract-like instrument resulting from such solicitation within 60 days of such effective date, such agencies are strongly encouraged but not required to ensure that the minimum wages specified in sections 2 and 3 of this order are paid in the new contract or contract-like instrument. But if that contract or contract-like instrument is subsequently extended or renewed, or an option is subsequently exercised under that contract or contract-like instrument, the minimum wages specified in sections 2 and 3 of this order shall apply to that extension, renewal, or option. (c) For all existing contracts and contract-like instruments, solicitations issued between the date of this order and the effective dates set forth in this section, and contracts and contract-like instruments entered into between the date of this order and the effective dates set forth in this section, agencies are strongly encouraged, to the extent permitted by law, to ensure that the hourly wages paid under such contracts or contract-like instruments are consistent with the minimum wages specified in sections 2 and 3 of this order. Sec. General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  J.R. Biden, Jr.  Executive Order No. 14042 Ex. Ord. No. 14042, Sept. 9, 2021 May 9, 2023  Ex. Ord. No. 14069. Advancing Economy, Efficiency, and Effectiveness in Federal Contracting by Promoting Pay Equity and Transparency Ex. Ord. No. 14069, Mar. 15, 2022 By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section Policy June 25, 2021 42 U.S.C. 2000e Sec. Economy, Efficiency, and Effectiveness in Federal Procurement Sec. General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  J.R. Biden, Jr.  6301. Authorization requirement (a)  In General A contract or purchase on behalf of the Federal Government shall not be made unless the contract or purchase is authorized by law or is under an appropriation adequate to its fulfillment. (b)  Exception. (1)  Definition In this subsection, the term defined Secretary means (A) the Secretary of Defense; or (B) the Secretary of Homeland Security with respect to the Coast Guard when the Coast Guard is not operating as a service in the Navy. (2)  In general Subsection (a) does not apply to a contract or purchase made by a defined Secretary for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies. (3)  Current year limitation A contract or purchase made by a defined Secretary under this subsection may not exceed the necessities of the current year. (4)  Reports The defined Secretary shall immediately advise Congress when authority is exercised under this subsection. The defined Secretary shall report quarterly on the estimated obligations incurred pursuant to the authority granted in this subsection. (c)  Special Rule for Purchase of Land Land may not be purchased by the Federal Government unless the purchase is authorized by law. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3803 Pub. L. 111281, title IX,  903(a)(4) Oct. 15, 2010 124 Stat. 3010  Amendment Not Shown in Text Subsecs. (a) and (b) of this section are derived from section 11 of former Title 41, Public Contracts, which was amended by Pub. L. 111281, title IX,  903(a)(4) Oct. 15, 2010 124 Stat. 3010 Pub. L. 111350 Jan. 4, 2011 124 Stat. 3677 section 6(a) of Pub. L. 111350 section 101 of this title Section 903 of Pub. L. 111281 Pub. L. 109241 section 902(c) of Pub. L. 109241       Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6301(a) 41:11(a) (words before 2nd comma). R.S.  3732; Pub. L. 89687, title VI,  612(e) Oct. 15, 1966 80 Stat. 993 Pub. L. 98557,  17(e)(1) Oct. 30, 1984 98 Stat. 2868 Pub. L. 104106, div. D, title XLIII,  4322(b)(4) Feb. 10, 1996 110 Stat. 677 Pub. L. 109241, title IX,  902(c) July 11, 2006 120 Stat. 566 6301(b) 41:11(a) (words after 2nd comma), (b). 6301(c) 41:14. R.S.  3736. In subsection (b)(1)(A), the words Secretary of Defense are substituted for Department of Defense because of 10:113. In subsection (b)(1)(B), the words Secretary of Homeland Security are substituted for Department of Homeland Security because of section 102(a)(2) of the Homeland Security Act of 2002 ( 6 U.S.C. 112(a)(2)  6302. Contracts for fuel made by Secretary of the Army  The Secretary of the Army, when the Secretary believes it is in the interest of the United States, may enter into contracts and incur obligations for fuel in sufficient quantities to meet the requirements for one year without regard to the current fiscal year. Amounts appropriated for the fiscal year in which the contract is made or amounts appropriated or which may be appropriated for the following fiscal year may be used to pay for supplies delivered under a contract made pursuant to this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3804        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6302 41:11a. June 30, 1921, ch. 33,  1 42 Stat. 78 The words Secretary of the Army are substituted for Secretary of War because of section 205(a) of the National Security Act of 1947 (ch. 343, 61 Stat. 501 section 53 of the Act of August 10, 1956 70A Stat. 676 Section 1 of the Act of August 10, 1956 70A Stat. 1  6303. Certain contracts limited to appropriated amounts  A contract to erect, repair, or furnish a public building, or to make any public improvement, shall not be made on terms requiring the Federal Government to pay more than the amount specifically appropriated for the activity covered by the contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3804        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6303 41:12. R.S.  3733. The words the activity covered by the contract are substituted for the specific purpose for clarity.  6304. Certain contracts limited to one-year term  Except as otherwise provided, an executive department shall not make a contract for stationery or other supplies for a term longer than one year from the time the contract is made. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3804        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6304 41:13. R.S.  3735. The words an executive department shall not are substituted for it shall not be lawful for any of the executive departments to to state the legal prohibition directly and to eliminate unnecessary words.  6305. Prohibition on transfer of contract and certain allowable assignments (a)  General Prohibition on Transfer of Contracts The party to whom the Federal Government gives a contract or order may not transfer the contract or order, or any interest in the contract or order, to another party. A purported transfer in violation of this subsection annuls the contract or order so far as the Federal Government is concerned, except that all rights of action for breach of contract are reserved to the Federal Government. (b)  Assignment. (1)  In general Notwithstanding subsection (a) and in accordance with the requirements of this subsection, amounts due from the Federal Government under a contract may be assigned to a bank, trust company, Federal lending agency, or other financing institution. (2)  Minimum amount This subsection applies only to a contract under which the aggregate amounts due from the Federal Government total at least $1,000. (3)  Accord with contract terms Assignment may not be made under this subsection if the contract forbids the assignment. (4)  Full balance due Unless otherwise expressly permitted by the contract, an assignment under this subsection must cover the balance of all amounts due from the Federal Government under the contract. (5)  Single assignment Unless otherwise expressly permitted by the contract, an assignment under this subsection may not be made to more than one party or be subject to further assignment, except that assignment may be made to one party as agent or trustee for 2 or more parties participating in the financing. (6)  Written notice The assignee of an assignment under this subsection shall file written notice of the assignment and a true copy of the instrument of assignment with (A) the contracting officer or head of the officers department or agency; (B) the surety on any bond connected with the contract; and (C) the disbursing officer, if any, designated in the contract to make payment. (7)  Validity Notwithstanding any law to the contrary governing the validity of assignments, an assignment under this subsection is a valid assignment for all purposes. (8)  No refund to cover assignors liability The assignee of an assignment under this subsection is not liable to make any refund to the Federal Government because of an assignors liability to the Federal Government, whether that liability arises from the contract or independently. (9)  Avoiding reduction or setoff with certain contracts. (A)  Contract provision A contract of the Department of Defense, the General Services Administration, the Department of Energy, or another department or agency of the Federal Government designated by the President may, on a determination of need by the President, provide or be amended without consideration to provide that payments made to an assignee under the contract are not subject to reduction or setoff. Each determination of need by the President under this subparagraph shall be published in the Federal Register. (B)  Carrying out contract provision When a no reduction or setoff provision as described in subparagraph (A) is included in a contract, payments to the assignee are not subject to reduction or setoff for an assignors liability arising (i) independently of the contract; (ii) on account of renegotiation under a renegotiation statute or under a statutory renegotiation article in the contract; (iii) on account of fines; (iv) on account of penalties; or (v) on account of taxes, social security contributions, or the withholding or non-withholding of taxes or social security contributions, whether arising from or independently of the contract. (C)  Limitation Subparagraph (B)(iv) does not apply to amounts which may be collected or withheld from the assignor in accordance with or for failure to comply with the terms of the contract. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3804        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6305(a) 41:15(a). R.S.  3737; Oct. 9, 1940, ch. 779,  1 54 Stat. 1029 May 15, 1951, ch. 75 65 Stat. 41 Pub. L. 103355, title II,  2451 Oct. 13, 1994 108 Stat. 3324 Pub. L. 104106, div. D, title XLIII,  4321(i)(9) Feb. 10, 1996 110 Stat. 676 6305(b)(1) 41:15(b) (words before par. (1) less words related to minimum amount). 6305(b)(2) 41:15(b) (words before par. (1) related to minimum amount). 6305(b)(3) 41:15(b)(1). 6305(b)(4) 41:15(b)(2) (related to full balance due). 6305(b)(5) 41:15(b)(2) (related to single assignment). 6305(b)(6) 41:15(b)(3). 6305(b)(7) 41:15(c). 6305(b)(8) 41:15(d). 6305(b)(9)(A) 41:15(e). 6305(b)(9)(B) 41:15(f) (less parenthetical phrase in par. (3)). 6305(b)(9)(C) 41:15(f) (parenthetical phrase in par. (3)), (g). In subsection (a), the words The party to whom the Federal Government gives a contract or order are substituted for the party to whom such contract or order is given for clarity. The words A purported transfer in violation of this subsection are substituted for any such transfer because an actual transfer is precluded by this provision. In subsection (b)(1), the words amounts due from the Federal Government are substituted for moneys due or to become due from the United States or from any agency or department thereof to eliminate unnecessary words. The words may be assigned are added to provide explicitly for authority that is necessarily implied by the source provision. In subsection (b)(3), the words in the case of any contract entered into after October 9, 1940 In subsection (b)(5), the words participating in such financing are omitted as unnecessary. In subsection (b)(8), the words is not liable to make any refund to the Federal Government are substituted for no [liability] . . . shall create or impose any liability on the part of the assignee to make restitution, refund, or repayment to the United States of any amount heretofore since July 1, 1950 In subsection (b)(9)(A), the words except any such contract under which full payment has been made are omitted as unnecessary because subsection (b)(8) precludes refund where full payment has already been made. The words payments made to an assignee under the contract are substituted for payments to be made to the assignee of any moneys due or to become due under such contract to eliminate unnecessary words. In subsection (b)(9)(B), the words When a no reduction or setoff  provision as described in subparagraph (A) is included in a contract are substituted for If a provision described in subsection (e) of this section or a provision to the same general effect has been at any time heretofore or is hereafter included or inserted in any such contract, the words payments to the assignee are substituted for payments to be made thereafter to an assignee of any moneys due or to become due, and the words an assignors liability are substituted for any liability of any nature of the assignor to the United States or any department or agency thereof , for clarity and to eliminate unnecessary words. In subsection (b)(9)(C), the text of 40:15(g), which provided that nothing in 40:15 affected rights and obligations accrued before subsection (g) was added by the Act of May 15, 1951 65 Stat. 41 Executive Documents  Delegation of Authority Memorandum of President of the United States, Oct. 3, 1995 Memorandum for the Heads of Executive Departments and Agencies Section 2451 of the Federal Acquisition Streamlining Act of 1994, Public Law 103355 41 U.S.C. 15 41 U.S.C. 6305 By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3 The authority delegated by this memorandum may be further delegated within the departments and agencies. This memorandum shall be published in the Federal Register.  William J. Clinton.  6306. Prohibition on Members of Congress making contracts with Federal Government (a)  In General A Member of Congress may not enter into or benefit from a contract or agreement or any part of a contract or agreement with the Federal Government. (b)  Exemptions. (1)  In general Subsection (a) does not apply to contracts that the Secretary of Agriculture may enter into with farmers. (2)  Certain acts Subsection (a) does not apply to a contract entered into under (A) the Agricultural Adjustment Act ( 7 U.S.C. 601 (B) the Farm Credit Act of 1971 ( 12 U.S.C. 2001 (C) the Home Owners Loan Act ( 12 U.S.C. 1461 (3)  Public record An exemption under this subsection shall be made a matter of public record. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3805        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6306(a) 41:22 (1st sentence). R.S.  3741; Feb. 27, 1877, ch. 69 19 Stat. 249 Pub. L. 103355, title VI,  6004 Oct. 13, 1994 108 Stat. 3364 Pub. L. 104106, div. D, title XLIII,  4321(i)(12) Feb. 10, 1996 110 Stat. 676 6306(b) 41:22 (last sentence). Jan. 25, 1934, ch. 5 48 Stat. 337 June 27, 1934, ch. 847 48 Stat. 1264 Aug. 26, 1937, ch. 821 50 Stat. 838 In subsection (b)(2), the words Emergency Farm Mortgage Act of 1933 and Federal Farm Mortgage Corporation Act are omitted because all provisions of those Acts have previously been executed or repealed. In subsection (b)(2)(B), the words Farm Credit Act of 1971 ( 12 U.S.C. 2001 Pub. L. 92181 12 U.S.C. 2001 In subsection (b)(2)(C), the words Home Owners Loan Act are substituted for Home Owners Loan Act of 1933 because of the amendment to 12:1461 made by Public Law 10173  6307. Contracts with Federal Government-owned establishments and availability of appropriations  An order or contract placed with a Federal Government-owned establishment for work, material, or the manufacture of material pertaining to an approved project is deemed to be an obligation in the same manner that a similar order or contract placed with a commercial manufacturer or private contractor is an obligation. Appropriations remain available to pay an obligation to a Federal Government-owned establishment just as appropriations remain available to pay an obligation to a commercial manufacturer or private contractor. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3806        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6307 41:23. June 5, 1920, ch. 240 41 Stat. 975   July 1, 1922, ch. 259 42 Stat. 812 The words heretofore or are omitted as obsolete. The word hereafter is omitted as unnecessary because the provision is restated as permanent law rather than as part of a fiscal year appropriation.  6308. Contracts for transportation of Federal Government securities  When practicable, a contract for transporting bullion, cash, or securities of the Federal Government shall be awarded to the lowest responsible bidder after notice to all parties with means of transportation. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3806        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6308 41:24. July 7, 1884, ch. 332 23 Stat. 204 The words bullion, cash, or securities of the Federal Government are substituted for moneys, bullion, coin, notes, bonds, and other securities of the United States, and paper to eliminate unnecessary words. The word awarded is substituted for let to use more modern terminology.  6309. Honorable discharge certificate in lieu of birth certificate (a)  In General An employer described in subsection (b) may not deny employment, on account of failure to produce a birth certificate, to an individual who submits, in lieu of the birth certificate, an honorable discharge certificate (or certificate issued in lieu of an honorable discharge certificate) from the Army, Air Force, Navy, Marine Corps, Space Force, or Coast Guard of the United States, unless the honorable discharge certificate shows on its face that the individual may have been an alien at the time of its issuance. (b)  Employers to Which Section Applies An employer referred to in subsection (a) is an employer (1) engaged in (A) the production, maintenance, or storage of arms, armament, ammunition, implements of war, munitions, machinery, tools, clothing, food, fuel, or any articles or supplies, or parts or ingredients of any articles or supplies; or (B) the construction, reconstruction, repair, or installation of a building, plant, structure, or facility; and (2) engaged in the activity described in paragraph (1) under (A) a contract with the Federal Government; or (B) any contract that the President, the Secretary of the Army, the Secretary of the Air Force, the Secretary of the Navy, or the Secretary of the Department in which the Coast Guard is operating certifies to the employer to be necessary to the national defense. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3806 Pub. L. 116283, div. A, title IX,  927(e) Jan. 1, 2021 134 Stat. 3832        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6309(a) 41:49. June 22, 1942, ch. 432,  1 56 Stat. 375 6309(b) 41:50. June 22, 1942, ch. 432,  2 56 Stat. 376 Pub. L. 9731,  12(16) Aug. 6, 1981 95 Stat. 154 In subsection (a), the words Air Force are added because of section 207(a) and (f) of the National Security Act of 1947 (ch. 343, 61 Stat. 502 section 53 of the Act of August 10, 1956 70A Stat. 676 Section 1 of the Act of August 10, 1956 70A Stat. 1 Subsection (b)(2)(B) is set out as a separate provision to clarify that the certification applies only to contracts other than contracts with the Federal Government. If the certification were to be construed as applying to all contracts, then the words under a contract with the United States or in section 2 of the Act of June 22, 1942 In subsection (b)(2)(B), the words Secretary of the Army are substituted for Secretary of War, and the words Secretary of the Air Force are added, because of sections 205(a) and 207(a) and (f) of the National Security Act of 1947 (ch. 343, 61 Stat. 501 section 53 of the Act of August 10, 1956 70A Stat. 676 Section 1 of the Act of August 10, 1956 70A Stat. 1 November 25, 2002 6 U.S.C. 542 Editorial Notes Amendments 2021Subsec. (a). Pub. L. 116283 CHAPTER 65 CONTRACTS FOR MATERIALS, SUPPLIES, ARTICLES, AND EQUIPMENT EXCEEDING $10,000    Sec.  6501. Definitions.  6502. Required contract terms.  6503. Breach or violation of required contract terms.  6504. Three-year prohibition on new contracts in case of breach or violation.  6505. Exclusions.  6506. Administrative provisions.  6507. Hearing authority and procedures.  6508. Authority to make exceptions.  6509. Other procedures.  6510. Manufacturers and regular dealers.  6511. Effect on other law.  6501. Definitions In this chapter (1)  Agency of the united states The term agency of the United States means an executive department, independent establishment, or other agency or instrumentality of the United States, the District of Columbia, or a corporation in which all stock is beneficially owned by the Federal Government. (2)  Person The term person includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in cases under title 11, or receivers. (3)  Secretary The term Secretary means the Secretary of Labor. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3807        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6501(1) 41:35 (matter before subsec. (a) related to definition of agency of the United States). June 30, 1936, ch. 881,  1 49 Stat. 2036 Pub. L. 103355, title VII,  7201(1) Oct. 13, 1994 108 Stat. 3378 6501(2) 41:41. June 30, 1936, ch. 881,  7 49 Stat. 2039 Pub. L. 95598, title III,  326 Nov. 6, 1978 92 Stat. 2679 6501(3) no source. Executive Documents  Ex. Ord. No. 13126. Prohibition of Acquisition of Products Produced by Forced or Indentured Child Labor Ex. Ord. No. 13126, June 12, 1999 By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to continue the executive branchs commitment to fighting abusive child labor practices, it is hereby ordered as follows: Section Policy 19 U.S.C. 1307 29 U.S.C. 201 et. seq 41 U.S.C. 35 et seq 41 U.S.C. 6501 Sec Publication of List Sec Procurement Regulations (a) Required Solicitation Provisions (1) A provision that requires the contractor to certify to the contracting officer that the contractor or, in the case of an incorporated contractor, a responsible official of the contractor has made a good faith effort to determine whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under the contract and that, on the basis of those efforts, the contractor is unaware of any such use of child labor; and (2) A provision that obligates the contractor to cooperate fully in providing reasonable access to the contractors records, documents, persons, or premises if reasonably requested by authorized officials of the contracting agency, the Department of the Treasury, or the Department of Justice, for the purpose of determining whether forced or indentured child labor was used to mine, produce, or manufacture any product furnished under the contract. (b) Investigations (c) Remedies. (1) The head of an executive agency may impose remedies as provided in this subsection in the case of a contractor under a contract of the executive agency if the head of the executive agency finds that the contractor: (i) Has furnished under the contract products that have been mined, produced, or manufactured by forced or indentured child labor or uses forced or indentured child labor in the mining, production, or manufacturing operations of the contractor; (ii) Has submitted a false certification under subsection 3(a)(1) of this order; or (iii) Has failed to cooperate in accordance with the obligation imposed pursuant to subsection 3(a)(2) of this order. (2) The head of an executive agency, in his or her sole discretion, may terminate a contract on the basis of any finding described in subsection 3(c)(1) of this order for any contract entered into after the date the regulation called for in section 3 of this order is published in final. (3) The head of an executive agency may debar or suspend a contractor from eligibility for Federal contracts on the basis of a finding that the contractor has engaged in an act described in subsection 3(c)(1) of this order. The provision for debarment may not exceed 3 years. (4) The Administrator of General Services shall include on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs (maintained by the Administrator as described in the Federal Acquisition Regulation) each party that is debarred, suspended, proposed for debarment or suspension, or declared ineligible by the head of an agency on the basis that the person has engaged in an act described in subsection 3(c)(1) of this order. (5) This section shall not be construed to limit the use of other remedies available to the head of an executive agency or any other official of the Federal Government on the basis of a finding described in subsection 3(c)(1) of this order. Sec Report Sec Scope 41 U.S.C. 428(f) (b) This order does not apply to a contract that is for the procurement of any product, or any article, material, or supply contained in a product that is mined, produced, or manufactured in any foreign country if: (1) the foreign country is a party to the Agreement on Government Procurement annexed to the WTO Agreement or a party to the North American Free Trade Agreement (NAFTA); and (2) the contract is of a value that is equal to or greater than the United States threshold specified in the Agreement on Government Procurement annexed to the WTO Agreement or NAFTA, whichever is applicable. Sec Definitions 41 U.S.C. 403(1) (b) WTO Agreement means the Agreement Establishing the World Trade Organization, entered into on April 15, 1994 (c) Forced or indentured child labor means all work or service (1) exacted from any person under the age of 18 under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily; or (2) performed by any person under the age of 18 pursuant to a contract the enforcement of which can be accomplished by process or penalties. Sec Judicial Review  William J. Clinton.  6502. Required contract terms A contract made by an agency of the United States for the manufacture or furnishing of materials, supplies, articles, or equipment, in an amount exceeding $10,000, shall include the following representations and stipulations: (1)  Minimum wages to be paid All individuals employed by the contractor in the manufacture or furnishing of materials, supplies, articles, or equipment under the contract will be paid, without subsequent deduction or rebate on any account, not less than the prevailing minimum wages, as determined by the Secretary, for individuals employed in similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under the contract, except that this paragraph applies only to purchases or contracts relating to industries that have been the subject matter of a determination by the Secretary. (2)  Maximum number of hours to be worked in a week No individual employed by the contractor in the manufacture or furnishing of materials, supplies, articles, or equipment under the contract shall be permitted to work in excess of 40 hours in any one week, except that this paragraph does not apply to an employer who has entered into an agreement with employees pursuant to paragraph (1) or (2) of section 7(b) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 207(b)(1) (3)  Ineligible employees No individual under 16 years of age and no incarcerated individual will be employed by the contractor in the manufacture or furnishing of materials, supplies, articles, or equipment under the contract, except that this section, or other law or executive order containing similar prohibitions against the purchase of goods by the Federal Government, does not apply to convict labor that satisfies the conditions of section 1761(c) of title 18 (4)  Standards of places and working conditions where contract performed No part of the contract will be performed, and no materials, supplies, articles, or equipment will be manufactured or fabricated under the contract, in plants, factories, buildings, or surroundings, or under working conditions, that are unsanitary, hazardous, or dangerous to the health and safety of employees engaged in the performance of the contract. Compliance with the safety, sanitary, and factory inspection laws of the State in which the work or part of the work is to be performed is prima facie evidence of compliance with this paragraph. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3807        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6502 (matter before par. (1)) 41:35 (matter before subsec. (a) less words related to definition of agency of the United States). June 30, 1936, ch. 881,  1 49 Stat. 2036 Pub. L. 103355, title VII,  7201(1) Oct. 13, 1994 108 Stat. 3378 6502(1) 41:35(a).  41:45. June 30, 1936, ch. 881,  13 49 Stat. 2039 June 30, 1952, ch. 530 66 Stat. 308 Pub. L. 104106, div. D, title XLIII,  4321(f)(1)(B) Feb. 10, 1996 110 Stat. 675 6502(2)(4) 41:35(b)(d). June 30, 1936, ch. 881,  1(b) 49 Stat. 2036 May 13, 1942, ch. 306 56 Stat. 277 Pub. L. 90351, title I,  819(b) Pub. L. 96157,  2 Dec. 27, 1979 93 Stat. 1215 Pub. L. 98473, title II,  609B(f) Oct. 12, 1984 98 Stat. 2093 Pub. L. 99145, title XII,  1241(b) Nov. 8, 1985 99 Stat. 734 Pub. L. 103355, title VII,  7201(1) Oct. 13, 1994 108 Stat. 3378 In the matter before paragraph (1), the words and entered into are omitted as unnecessary. In paragraph (1), the words under the contract are substituted for used in the performance of the contract in 41:35(a) to eliminate unnecessary words and for consistency in the chapter. The words Sections 35 to 45 of this title shall apply to all contracts entered into pursuant to invitations for bids issued on or after ninety days from June 30, 1936 In paragraph (2), the words under the contract are substituted for used in the performance of the contract to eliminate unnecessary words and for consistency in the chapter. In paragraph (3), the words No individual under 16 years of age are substituted for no male person under sixteen years of age and no female person under eighteen years of age to reflect the interpretation of this provision subsequent to enactment of civil rights laws such as section 703 of the Civil Rights Act of 1964 (42:2000e2), as carried out by the Department of Labor through 41 C.F.R. Part 50201.104. The words incarcerated individual are substituted for convict labor the first time the words appear because the term convict labor is ambiguous and may be interpreted to include individuals who are not incarcerated. This would be an inappropriate interpretation because 41:35(c) provides an exception for convict labor that satisfies the conditions of 18:1761(c) regarding certain non-Federal prison work projects. The words or production are omitted for consistency with the source provisions for paragraphs (1) and (2) and because, in this context, the concept of production is included in the words manufacture or furnishing. The words under the contract are substituted for included in such contract for consistency in the chapter.  6503. Breach or violation of required contract terms (a)  Applicable Breach or Violation This section applies in case of breach or violation of a representation or stipulation included in a contract under section 6502 of this title (b)  Liquidated Damages In addition to damages for any other breach of the contract, the party responsible for a breach or violation described in subsection (a) is liable to the Federal Government for the following liquidated damages: (1) An amount equal to the sum of $10 per day for each individual under 16 years of age and each incarcerated individual knowingly employed in the performance of the contract. (2) An amount equal to the sum of each underpayment of wages due an employee engaged in the performance of the contract, including any underpayments arising from deductions, rebates, or refunds. (c)  Cancellation and Alternative Completion In addition to the Federal Government being entitled to damages described in subsection (b), the agency of the United States that made the contract may cancel the contract and make open-market purchases or make other contracts for the completion of the original contract, charging any additional cost to the original contractor. (d)  Recovery of Amounts Due An amount due the Federal Government because of a breach or violation described in subsection (a) may be withheld from any amounts owed the contractor under any contract under section 6502 of this title (e)  Employee Reimbursement for Underpayment of Wages An amount withheld or recovered under subsection (d) that is based on an underpayment of wages as described in subsection (b)(2) shall be held in a special deposit account. On order of the Secretary, the amount shall be paid directly to the underpaid employee on whose account the amount was withheld or recovered. However, an employees claim for payment under this subsection may be entertained only if made within one year from the date of actual notice to the contractor of the withholding or recovery. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3808        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6503 41:36. June 30, 1936, ch. 881,  2 49 Stat. 2037 In subsection (b)(1), the words individual under 16 years of age are substituted for male person under sixteen years of age or each female person under eighteen years of age to reflect the interpretation of this provision subsequent to enactment of civil rights laws such as section 703 of the Civil Rights Act of 1964 (42:2000e2), as carried out by the Department of Labor through 41 C.F.R. Part 50201.104. The words incarcerated individual are substituted for convict laborer because of the exception to convict labor that satisfies the conditions of 18:1761(c). Section 1761 does not apply to non-incarcerated convicts. Subsection (b)(2) is substituted for a sum equal to the amount of any deductions, rebates, refunds, or underpayment of wages due to any employee engaged in the performance of such contract for consistency in the chapter. In subsection (c), the words made the contract and make other contracts are substituted for entering into such contract and enter into other contracts, respectively, for consistency in the revised title. In subsection (d), the words suit brought by the Attorney General are substituted for suits brought in the name of the United States of America by the Attorney General thereof  to eliminate unnecessary words.  6504. Three-year prohibition on new contracts in case of breach or violation (a)  Distribution of List The Comptroller General shall distribute to each agency of the United States a list containing the names of persons found by the Secretary to have breached or violated a representation or stipulation included in a contract under section 6502 of this title (b)  Three-Year Prohibition Unless the Secretary recommends otherwise, a contract described in section 6502 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3808        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6504 41:37. June 30, 1936, ch. 881,  3 49 Stat. 2037 In this section, the words or firms are omitted because of the definition of person in 41:41, restated in section 6501 of the revised title. In subsection (a), the words or violated are added for consistency in the chapter. In subsection (b), the words contract described in section 6502 of this title  6505. Exclusions (a)  Items Available in the Open Market This chapter does not apply to the purchase of materials, supplies, articles, or equipment that may usually be bought in the open market. (b)  Perishables and Agricultural Products This chapter does not apply to any of the following: (1) Perishables, including dairy, livestock and nursery products. (2) Agricultural or farm products processed for first sale by the original producers. (3) Contracts made by the Secretary of Agriculture for the purchase of agricultural commodities or products of agricultural commodities. (c)  Carriage of Freight or Personnel This chapter may not be construed to apply to (1) the carriage of freight or personnel by vessel, airplane, bus, truck, express, or railway line where published tariff rates are in effect; or (2) common carriers subject to the Communications Act of 1934 ( 47 U.S.C. 151 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3809        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6505 41:43. June 30, 1936, ch. 881,  9 49 Stat. 2039 Editorial Notes  References in Text The Communications Act of 1934, referred to in subsec. (c)(2), is act June 19, 1934, ch. 652 48 Stat. 1064 section 609 of Title 47  6506. Administrative provisions (a)  In General The Secretary shall administer this chapter. (b)  Regulations The Secretary may make, amend, and rescind regulations as necessary to carry out this chapter. (c)  Use of Government Officers and Employees The Secretary shall use Federal officers and employees and, with a States consent, State and local officers and employees as the Secretary finds necessary to assist in the administration of this chapter. (d)  Appointments The Secretary shall appoint an administrative officer and attorneys, experts, and other employees from time to time as the Secretary finds necessary for the administration of this chapter. The appointments are subject to chapter 51 and subchapter III of chapter 53 of title 5 and other law applicable to the employment and compensation of officers and employees of the Federal Government. (e)  Investigations The Secretary, or an authorized representative of the Secretary, may make investigations and findings as provided in this chapter and may, in any part of the United States, prosecute an inquiry necessary to carry out this chapter. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3809        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6506 41:38. June 30, 1936, ch. 881,  4 49 Stat. 2038 In subsection (b), the word rules is omitted as included in regulations. In subsection (c), the words and to prescribe rules and regulations with respect thereto are omitted as unnecessary because of subsection (b). In subsection (d), the words without regard to the provisions of the civil-service laws, which appear in section 4 of the Walsh-Healey Act ( June 30, 1936, ch. 881 49 Stat. 2038 April 23, 1941 5 U.S.C. 3301 Act of November 26, 1940, ch. 919, title I,  1 54 Stat. 1211 June 30, 1936, ch. 881 49 Stat. 2038 Oct. 28, 1949, ch. 782 63 Stat. 972 section 7(b) of Public Law 89554  6507. Hearing authority and procedures (a)  Record and Hearing Requirements for Wage Determinations A wage determination under section 6502(1) of this title (b)  Authority To Hold Hearings The Secretary or an impartial representative designated by the Secretary may hold hearings when there is a complaint of breach or violation of a representation or stipulation included in a contract under section 6502 of this title (c)  Orders To Compel Testimony The Secretary or an impartial representative designated by the Secretary may issue orders requiring witnesses to attend hearings held under this section and to produce evidence and testify under oath. Witnesses shall be paid fees and mileage at the same rates as witnesses in courts of the United States. (d)  Enforcement of Orders If a person refuses or fails to obey an order issued under subsection (c), the Secretary or an impartial representative designated by the Secretary may bring an action to enforce the order in a district court of the United States or in the district court of a territory or possession of the United States. A court has jurisdiction to enforce the order if the inquiry is being carried out within the courts judicial district or if the person is found or resides or transacts business within the courts judicial district. The court may issue an order requiring the person to obey the order issued under subsection (c), and the court may punish any further refusal or failure as contempt of court. (e)  Findings of Fact After notice and a hearing, the Secretary or an impartial representative designated by the Secretary shall make findings of fact. The findings are conclusive for agencies of the United States. If supported by a preponderance of the evidence, the findings are conclusive in any court of the United States. (f)  Decisions The Secretary or an impartial representative designated by the Secretary may make decisions, based on findings of fact, that are considered necessary to enforce this chapter. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3809        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6507(a) 41:43a(b) (1st sentence). June 30, 1936, ch. 881,  10(b) June 30, 1952, ch. 530 66 Stat. 308 Pub. L. 104106, div. D, title XLIII,  4321(f)(2) Feb. 10, 1996 110 Stat. 675 6507(b)(f) 41:39. June 30, 1936, ch. 881,  5 49 Stat. 2038 In subsection (d), the word contumacy is omitted as included in refuses or fails. The words may bring an action to enforce the order are substituted for upon the application by for consistency in the revised title and with other titles of the United States Code. The words the United States District Court for the District of Columbia in section 5 of the Act of June 30, 1936 section 32(b) of the Act of June 25, 1948 62 Stat. 991 section 127 of the Act of May 24, 1949 63 Stat. 107 In subsection (e), the duty to make findings of fact is restated as a duty of the Secretary (or the Secretarys representative). The grammatical structure of the last sentence of 41:39 seems to suggest that the court, rather than the Secretary (or the Secretarys representative), serves as fact finder. However, the provision taken as a whole indicates that it is the Secretary (or the Secretarys representative) who serves as fact finder. It is the Secretary (or the Secretarys representative) before whom hearings are held, witnesses testify, and evidence is produced. The courts involvement is limited to compelling recalcitrant witnesses to appear before him [the Secretary] or representative designated by him. The restatement clarifies the generally accepted understanding that the Secretary (or the Secretarys representative) serves as fact finder (see, e.g., United States v. Sweet Briar Ready-Mix Concrete Company v. United States  6508. Authority to make exceptions (a)  Duty of the Secretary To Make Exceptions When the head of an agency of the United States makes a written finding that the inclusion of representations or stipulations under section 6502 of this title (b)  Authority of the Secretary To Modify Existing Contracts When an agency of the United States and a contractor jointly recommend, the Secretary may modify the terms of an existing contract with respect to minimum wages and maximum hours of labor as the Secretary finds necessary and proper in the public interest or to prevent injustice and undue hardship. (c)  Authority of the Secretary To Allow Limitations, Variations, Tolerances, and Exemptions The Secretary may provide reasonable limitations and may prescribe regulations to allow reasonable variations, tolerances, and exemptions in the application of this chapter to contractors, including with respect to minimum wages and maximum hours of labor. (d)  Rate of Pay for Overtime When the Secretary permits an increase in the maximum hours of labor stipulated in a contract, the Secretary shall set a rate of pay for overtime. The overtime rate must be at least one and one-half times the basic hourly rate. (e)  Authority of the President To Suspend The President may suspend any of the representations and stipulations contained in section 6502 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3810        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6508(a) 41:40 (1st sentence). June 30, 1936, ch. 881,  6 49 Stat. 2038 June 28, 1940, ch. 440 54 Stat. 681 6508(b) 41:40 (2d sentence). 6508(c) 41:40 (3d sentence). 6508(d) 41:40 (last sentence less proviso). 6508(e) 41:40 (last sentence proviso). In subsection (a), the words an agency of the United States are substituted for the contracting agency or department for consistency in the chapter. Commas are inserted after exceptions and otherwise to clarify that the words when justice or the public interest will be served apply to exceptions in specific cases as well as otherwise. The word thereby is omitted as unnecessary. In subsection (b), the words an agency of the United States are substituted for the contracting agency, and the words minimum wages are substituted for minimum rates of pay, for consistency in the chapter. In subsection (c), the word rules is omitted as included in regulations. The words as hereinbefore described are omitted as unnecessary. The words minimum wages are substituted for minimum rates of pay for consistency in the chapter. In subsection (d), the words received by any employee affected are omitted as unnecessary. In subsection (e), the words or all are omitted as unnecessary.  6509. Other procedures (a)  Applicability of Certain Administrative Provisions Notwithstanding section 553 of title 5 (b)  Judicial Review in General Notwithstanding the inclusion of representations and stipulations in a contract under section 6502 of this title (c)  Judicial Review of Wage Determinations A person adversely affected or aggrieved by a wage determination under section 6502(1) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3810        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6509(a) 41:43a(a). June 30, 1936, ch. 881,  10(a) June 30, 1952, ch. 530 66 Stat. 308 Pub. L. 103355, title VII,  7201(2) Oct. 13, 1994 108 Stat. 3378 6509(b) 41:43a(c). 6509(c) 41:43a(b) (last sentence). Subsection (a) is substituted for Notwithstanding any provision of section 4 of the Administrative Procedure Act, such Act shall be applicable in the administration of sections 1 to 5 and 7 to 9 of this Act in section 10 of the Act of June 30, 1936 section 7(b) of Public Law 89554 In subsection (c), the words has the right of judicial review are substituted for Review . . . may be had for consistency with subsection (b) and with section 6510(b) of the revised title and because the review provided for in chapter 7 of title 5 is denominated as judicial review. The words chapter 7 of title 5 are substituted for section 10 of the Administrative Procedure Act on authority of section 7(b) of Public Law 89554  6510. Manufacturers and regular dealers (a)  Prescribing Standards The Secretary may prescribe, in regulations, standards for determining whether a contractor is a manufacturer or regular dealer with respect to materials, supplies, articles, or equipment to be manufactured or furnished under, or used in the performance of, a contract entered into by an agency of the United States. (b)  Judicial Review An interested person has the right of judicial review of any legal question relating to interpretation of the terms regular dealer and manufacturer as defined pursuant to subsection (a). ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3811        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6510 41:43b. June 30, 1936, ch. 881,  11 Pub. L. 103355, title VII,  7201(4) Oct. 13, 1994 108 Stat. 3378 Pub. L. 104106, div. D, title XLIII,  4321(f)(1)(A) Feb. 10, 1996 110 Stat. 675 In subsection (a), the words an agency of the United States are substituted for any executive department, independent establishment, or other agency or instrumentality of the United States, or by the District of Columbia, or by any corporation all the stock of which is beneficially owned by the United States because of the definition in section 6501 of the revised title.  6511. Effect on other law This chapter may not be construed to modify or amend the following provisions: (1) Chapter 83 of this title. (2) Sections 3141 to 3144, 3146, and 3147 of title 40. (3) Chapter 307 of title 18. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3811        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6511 41:42. June 30, 1936, ch. 881,  8 49 Stat. 2039 Paragraph (1) is substituted for Title III of the act entitled An Act making appropriations for the Treasury and Post Office Departments for the fiscal year ending June 30, 1934 May 3, 1933 May 3, 1933 March 3, 1933 Paragraph (2) is substituted for the Act entitled An Act relating to the rate of wages for laborers and mechanics employed on public buildings of the United States and the District of Columbia by contractors and subcontractors, and for other purposes, approved March 3, 1931 section 5(c) of Public Law 107217 The words the labor provisions of Title II of the National Industrial Recovery Act, approved June 16, 1933 section 201 of the Act of June 21, 1938 52 Stat. 816 June 27, 1940 54 Stat. 633 April 5, 1941 55 Stat. 110 June 27, 1942 56 Stat. 410 The words or [the labor provisions] of section 7 of the Emergency Relief Appropriation Act, approved April 8, 1935 49 Stat. 118 Paragraph (3) is substituted for the Act entitled An Act to provide for the diversification of employment of Federal prisoners, for their training and schooling in trades and occupations, and for other purposes, approved May 27, 1930 June 23, 1934 May 27, 1930 46 Stat. 391 June 23, 1934 48 Stat. 1211 section 4162 of title 18 June 25, 1948 62 Stat. 683 section 4162 of title 18 section 218(a)(4) of Public Law 98473 98 Stat. 2027 CHAPTER 67 SERVICE CONTRACT LABOR STANDARDS    Sec.  6701. Definitions.  6702. Contracts to which this chapter applies.  6703. Required contract terms.  6704. Limitation on minimum wage.  6705. Violations.  6706. Three-year prohibition on new contracts in case of violation.  6707. Enforcement and administration of chapter.  6701. Definitions In this chapter: (1)  Compensation The term compensation means any of the payments or fringe benefits described in section 6703 of this title (2)  Secretary The term Secretary means the Secretary of Labor. (3)  Service employee The term service employee (A) means an individual engaged in the performance of a contract made by the Federal Government and not exempted under section 6702(b) of this title (B) includes an individual without regard to any contractual relationship alleged to exist between the individual and a contractor or subcontractor; but (C) does not include an individual employed in a bona fide executive, administrative, or professional capacity, as those terms are defined in part 541 of title 29, Code of Federal Regulations. (4)  United states The term United States (A) includes any State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, the outer Continental Shelf as defined in the Outer Continental Shelf Lands Act (43 U.S.C.  1331 et seq.), American Samoa, Guam, Wake Island, and Johnston Island; but (B) does not include any other territory under the jurisdiction of the United States or any United States base or possession within a foreign country. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3811        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6701 41:357. Pub. L. 89286,  8 Oct. 22, 1965 79 Stat. 1036 Pub. L. 9357,  1 July 6, 1973 87 Stat. 140 Pub. L. 94489,  3 Oct. 13, 1976 90 Stat. 2358 In paragraph (3), the word individual is substituted for person because of the definition of person in 1:1. The words contract made by the Federal Government are substituted for contract entered into by the United States for consistency in the revised title. The words as of July 30, 1976 In paragraph (4)(A), the words the outer Continental Shelf are substituted for Outer Continental Shelf lands for consistency with the definition in 43:1331 and for consistency with the more common usage generally found in subchapter III of chapter 29 of title 43. The words Eniwetok Atoll, Kwajalein Atoll are omitted because they are part of the Marshall Islands and therefore no longer part of the United States. The words Canton Island are omitted because it is part of Kiribati and therefore no longer part of the United States. Editorial Notes  References in Text The Outer Continental Shelf Lands Act, referred to in par. (4)(A), is act Aug. 7, 1953, ch. 345 67 Stat. 462 section 1301 of Title 43  6702. Contracts to which this chapter applies (a)  In General Except as provided in subsection (b), this chapter applies to any contract or bid specification for a contract, whether negotiated or advertised, that (1) is made by the Federal Government or the District of Columbia; (2) involves an amount exceeding $2,500; and (3) has as its principal purpose the furnishing of services in the United States through the use of service employees. (b)  Exemptions This chapter does not apply to (1) a contract of the Federal Government or the District of Columbia for the construction, alteration, or repair, including painting and decorating, of public buildings or public works; (2) any work required to be done in accordance with chapter 65 of this title; (3) a contract for the carriage of freight or personnel by vessel, airplane, bus, truck, express, railway line or oil or gas pipeline where published tariff rates are in effect; (4) a contract for the furnishing of services by radio, telephone, telegraph, or cable companies, subject to the Communications Act of 1934 ( 47 U.S.C. 151 (5) a contract for public utility services, including electric light and power, water, steam, and gas; (6) an employment contract providing for direct services to a Federal agency by an individual; and (7) a contract with the United States Postal Service, the principal purpose of which is the operation of postal contract stations. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3812        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6702(a) 41:351(a) (words before par. (1) related to applicability). Pub. L. 89286,  2(a) Oct. 22, 1965 79 Stat. 1034 Pub. L. 94489,  1(a) Oct. 13, 1976 90 Stat. 2358 6702(b) 41:356. Pub. L. 89286,  7 Oct. 22, 1965 79 Stat. 1035 In subsection (b)(2), the words the Walsh-Healey Public Contracts Act ( 49 Stat. 2036 section 7(2) of Public Law 89286 79 Stat. 1036 June 30, 1936 49 Stat. 2036 section 12 of the Act of June 30, 1936 section 10005(f)(5) of Public Law 103355 108 Stat. 3409 In subsection (b)(7), the words United States Postal Service are substituted for Post Office Department because of sections 4(a) and 6( o Public Law 91375 84 Stat. 773 Editorial Notes  References in Text The Communications Act of 1934, referred to in subsec. (b)(4), is act June 19, 1934, ch. 652 48 Stat. 1064 section 609 of Title 47  6703. Required contract terms A contract, and bid specification for a contract, to which this chapter applies under section 6702 of this title (1)  Minimum wage The contract and bid specification shall contain a provision specifying the minimum wage to be paid to each class of service employee engaged in the performance of the contract or any subcontract, as determined by the Secretary or the Secretarys authorized representative, in accordance with prevailing rates in the locality, or, where a collective-bargaining agreement covers the service employees, in accordance with the rates provided for in the agreement, including prospective wage increases provided for in the agreement as a result of arms length negotiations. In any case the minimum wage may not be less than the minimum wage specified in section 6704 of this title (2)  Fringe benefits The contract and bid specification shall contain a provision specifying the fringe benefits to be provided to each class of service employee engaged in the performance of the contract or any subcontract, as determined by the Secretary or the Secretarys authorized representative to be prevailing in the locality, or, where a collective-bargaining agreement covers the service employees, to be provided for under the agreement, including prospective fringe benefit increases provided for in the agreement as a result of arms-length negotiations. The fringe benefits shall include medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, vacation and holiday pay, costs of apprenticeship or other similar programs and other bona fide fringe benefits not otherwise required by Federal, State, or local law to be provided by the contractor or subcontractor. The obligation under this paragraph may be discharged by furnishing any equivalent combinations of fringe benefits or by making equivalent or differential payments in cash under regulations established by the Secretary. (3)  Working conditions The contract and bid specification shall contain a provision specifying that no part of the services covered by this chapter may be performed in buildings or surroundings or under working conditions, provided by or under the control or supervision of the contractor or any subcontractor, which are unsanitary or hazardous or dangerous to the health or safety of service employees engaged to provide the services. (4)  Notice The contract and bid specification shall contain a provision specifying that on the date a service employee begins work on a contract to which this chapter applies, the contractor or subcontractor will deliver to the employee a notice of the compensation required under paragraphs (1) and (2), on a form prepared by the Federal agency, or will post a notice of the required compensation in a prominent place at the worksite. (5)  General schedule pay rates and prevailing rate systems The contract and bid specification shall contain a statement of the rates that would be paid by the Federal agency to each class of service employee if section 5332 or 5341 of title 5 were applicable to them. The Secretary shall give due consideration to these rates in making the wage and fringe benefit determinations specified in this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3812        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6703 41:351(a) (words before par. (1) related to required contract terms), (1)(5). Pub. L. 89286,  2(a) Oct. 22, 1965 79 Stat. 1034 Pub. L. 92473 Oct. 9, 1972 86 Stat. 789 Pub. L. 94489,  2 Oct. 13, 1976 90 Stat. 2358 Executive Documents  Executive Order No. 13495 Ex. Ord. No. 13495, Jan. 30, 2009 Oct. 31, 2019  Executive Order No. 13897 Ex. Ord. No. 13897, Oct. 31, 2019 Nov. 18, 2021  Ex. Ord. No. 14055. Nondisplacement of Qualified Workers Under Service Contracts Ex. Ord. No. 14055, Nov. 18, 2021 By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, [see] 40 U.S.C. 101 41 U.S.C. 101 Section Policy Sec. Definitions (a) Service contract or contract means any contract, contract-like instrument, or subcontract for services entered into by the Federal Government or its contractors that is covered by the Service Contract Act of 1965, as amended, [see] 41 U.S.C. 6701 (b) Employee means a service employee as defined in the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3) (c) Agency means an executive department or agency, including an independent establishment subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A) Sec. Nondisplacement of Qualified Workers  Nondisplacement of Qualified Workers: (a) The contractor and its subcontractors shall, except as otherwise provided herein, in good faith offer service employees (as defined in the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3) (b) Notwithstanding the obligation under paragraph (a) above, the contractor and any subcontractors (1) are not required to offer a right of first refusal to any employee(s) of the predecessor contractor who are not service employees within the meaning of the Service Contract Act of 1965, as amended, 41 U.S.C. 6701(3) (c) The contractor shall, not less than 10 business days before the earlier of the completion of this contract or of its work on this contract, furnish the Contracting Officer a certified list of the names of all service employees working under this contract and its subcontracts during the last month of contract performance. The list shall also contain anniversary dates of employment of each service employee under this contract and its predecessor contracts either with the current or predecessor contractors or their subcontractors. The Contracting Officer shall provide the list to the successor contractor, and the list shall be provided on request to employees or their representatives, consistent with the Privacy Act, 5 U.S.C. 552a (d) If it is determined, pursuant to regulations issued by the Secretary of Labor (Secretary), that the contractor or its subcontractors are not in compliance with the requirements of this clause or any regulation or order of the Secretary, the Secretary may impose appropriate sanctions against the contractor or its subcontractors, as provided in Executive Order (No.) , the regulations implementing that order, and relevant orders of the Secretary, or as otherwise provided by law. (e) In every subcontract entered into in order to perform services under this contract, the contractor will include provisions that ensure that each subcontractor will honor the requirements of paragraphs (a) and (b) with respect to the employees of a predecessor subcontractor or subcontractors working under this contract, as well as of a predecessor contractor and its subcontractors. The subcontract shall also include provisions to ensure that the subcontractor will provide the contractor with the information about the employees of the subcontractor needed by the contractor to comply with paragraph (c) of this clause. The contractor shall take such action with respect to any such subcontract as may be directed by the Secretary as a means of enforcing such provisions, including the imposition of sanctions for noncompliance: provided, however, that if the contractor, as a result of such direction, becomes involved in litigation with a subcontractor, or is threatened with such involvement, the contractor may request that the United States enter into such litigation to protect the interests of the United States. (b) Nothing in this order shall be construed to require or recommend that agencies, contractors, or subcontractors pay the relocation costs of employees who exercise their right to work for a successor contractor or subcontractor pursuant to this order. Sec. Location Continuity (b) If an agency determines that performance of the contract in the same locality or localities is reasonably necessary to ensure economical and efficient provision of services, then the agency shall, to the extent consistent with law, include a requirement or preference in the solicitation for the successor contract that it be performed in the same locality or localities. Sec. Exclusions (a) contracts under the simplified acquisition threshold as defined in 41 U.S.C. 134 (b) employees who were hired to work under a Federal service contract and one or more nonfederal service contracts as part of a single job, provided that the employees were not deployed in a manner that was designed to avoid the purposes of this order. Sec. Exceptions Authorized by Agencies (i) Adhering to the requirements of section 3 of this order would not advance the Federal Governments interests in achieving economy and efficiency in Federal procurement; (ii) Based on a market analysis, adhering to the requirements of section 3 of this order would: (A) substantially reduce the number of potential bidders so as to frustrate full and open competition; and (B) not be reasonably tailored to the agencys needs for the contract; or (iii) Adhering to the requirements of section 3 of this order would otherwise be inconsistent with statutes, regulations, Executive Orders, or Presidential Memoranda. (b) To the extent permitted by law and consistent with national security and executive branch confidentiality interests, each agency shall publish, on a centralized public website, descriptions of the exceptions it has granted under this section, and ensure that the contractor notifies affected workers and their collective bargaining representatives, if any, in writing of the agencys determination to grant an exception. (c) On a quarterly basis, each agency shall report to the Office of Management and Budget descriptions of the exceptions granted under this section. Sec. Regulations and Implementation Nov. 18, 2021 (b) Within 60 days of the Secretary issuing final regulations, the Federal Acquisition Regulatory Council (FAR Council), to the extent consistent with law, shall amend the Federal Acquisition Regulation to provide for inclusion in Federal procurement solicitations and contracts subject to this order the clause described in section 3 of this order. (c) The Director of the Office of Management and Budget shall, to the extent consistent with law, issue guidance to implement section 6(c) of this order. Sec. Enforcement (b) This order creates no rights under the Contract Disputes Act, 41 U.S.C. 7101 et seq Sec. Revocation October 31, 2019 January 30, 2009 Sec. Severability Sec. Effective Date Sec. General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  J.R. Biden, Jr.  6704. Limitation on minimum wage (a)  In General A contractor that makes a contract with the Federal Government, the principal purpose of which is to furnish services through the use of service employees, and any subcontractor, may not pay less than the minimum wage specified under section 6(a)(1) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 206(a)(1) (b)  Violations Sections 6705 to 6707(d) of this title are applicable to a violation of this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3813        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6704 41:351(b). Pub. L. 89286,  2(b) Oct. 22, 1965 79 Stat. 1034 Pub. L. 94489,  1(b) Oct. 13, 1976 90 Stat. 2358  6705. Violations (a)  Liability of Responsible Party A party responsible for a violation of a contract provision required under section 6703(1) or (2) of this title or a violation of section 6704 of this title (b)  Recovery of Amounts Underpaid to Employees. (1)  Withholding accrued payments due on contracts The total amount determined under subsection (a) to be due any employee engaged in the performance of a contract may be withheld from accrued payments due on the contract or on any other contract between the same contractor and the Federal Government. The amount withheld shall be held in a deposit fund. On order of the Secretary, the compensation found by the Secretary or the head of a Federal agency to be due an underpaid employee pursuant to this chapter shall be paid from the deposit fund directly to the underpaid employee. (2)  Bringing actions against contractors If the accrued payments withheld under the terms of the contract are insufficient to reimburse a service employee with respect to whom there has been a failure to pay the compensation required pursuant to this chapter, the Federal Government may bring action against the contractor, subcontractor, or any sureties in any court of competent jurisdiction to recover the remaining amount of underpayment. Any amount recovered shall be held in the deposit fund and shall be paid, on order of the Secretary, directly to the underpaid employee. Any amount not paid to an employee because of inability to do so within 3 years shall be covered into the Treasury as miscellaneous receipts. (c)  Cancellation and Alternative Completion In addition to other actions in accordance with this section, when a violation of any contract stipulation is found, the Federal agency that made the contract may cancel the contract on written notice to the original contractor. The Federal Government may then make other contracts or arrangements for the completion of the original contract, charging any additional cost to the original contractor. (d)  Enforcement of Section In accordance with regulations prescribed pursuant to section 6707(a)(d) of this title, the Secretary or the head of a Federal agency may carry out this section. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3814        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6705(a) 41:352(a) (1st sentence). Pub. L. 89286 Oct. 22, 1965 79 Stat. 1035 6705(b)(1) 41:352(a) (2dlast sentences). 6705(b)(2) 41:354(b) 6705(c) 41:352(c). 6705(d) 41:352(b). In subsection (c), the words to other actions in accordance with this section are added for clarity.  6706. Three-year prohibition on new contracts in case of violation (a)  Distribution of List The Comptroller General shall distribute to each agency of the Federal Government a list containing the names of persons or firms that a Federal agency or the Secretary has found to have violated this chapter. (b)  Three-Year Prohibition Unless the Secretary recommends otherwise because of unusual circumstances, a Federal Government contract may not be awarded to a person or firm named on the list under subsection (a), or to an entity in which the person or firm has a substantial interest, until 3 years have elapsed from the date of publication of the list. If the Secretary does not recommend otherwise because of unusual circumstances, the Secretary shall, not later than 90 days after a hearing examiner has made a finding of a violation of this chapter, forward to the Comptroller General the name of the person or firm found to have violated this chapter. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3814        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6706(a) 41:354(a) (1st sentence). Pub. L. 89286,  5(a) Oct. 22, 1965 79 Stat. 1035 6706(b) 41:354(a) (2dlast sentences). Pub. L. 89286,  5(a) Oct. 22, 1965 79 Stat. 1035 Pub. L. 92473,  4 Oct. 9, 1972 86 Stat. 790 In subsection (b), the word entity is substituted for firm, corporation, partnership, or association to use a single broad term clarifying that the prohibition applies to any kind of organization in which the person or firm has a substantial interest. The words containing the name of such persons or firms are omitted as unnecessary. The word person is substituted for individual for consistency in the subsection.  6707. Enforcement and administration of chapter (a)  Enforcement of Chapter Sections 6506 and 6507 of this title govern the Secretarys authority to enforce this chapter, including the Secretarys authority to prescribe regulations, issue orders, hold hearings, make decisions based on findings of fact, and take other appropriate action under this chapter. (b)  Limitations and Regulations for Variations, Tolerances, and Exemptions The Secretary may provide reasonable limitations and may prescribe regulations allowing reasonable variation, tolerances, and exemptions with respect to this chapter (other than subsection (f)), but only in special circumstances where the Secretary determines that the limitation, variation, tolerance, or exemption is necessary and proper in the public interest or to avoid the serious impairment of Federal Government business, and is in accord with the remedial purpose of this chapter to protect prevailing labor standards. (c)  Preservation of Wages and Benefits Due Under Predecessor Contracts. (1)  In general Under a contract which succeeds a contract subject to this chapter, and under which substantially the same services are furnished, a contractor or subcontractor may not pay a service employee less than the wages and fringe benefits the service employee would have received under the predecessor contract, including accrued wages and fringe benefits and any prospective increases in wages and fringe benefits provided for in a collective-bargaining agreement as a result of arms-length negotiations. (2)  Exception This subsection does not apply if the Secretary finds after a hearing in accordance with regulations adopted by the Secretary that wages and fringe benefits under the predecessor contract are substantially at variance with wages and fringe benefits prevailing in the same locality for services of a similar character. (d)  Duration of Contracts Subject to limitations in annual appropriation acts but notwithstanding any other law, a contract to which this chapter applies may, if authorized by the Secretary, be for any term of years not exceeding 5, if the contract provides for periodic adjustment of wages and fringe benefits pursuant to future determinations, issued in the manner prescribed in section 6703 of this title (e)  Exclusion of Fringe Benefit Payments in Determining Overtime Pay In determining any overtime pay to which a service employee is entitled under Federal law, the regular or basic hourly rate of pay of the service employee does not include any fringe benefit payments computed under this chapter which are excluded from the definition of regular rate under section 7(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 207(e) (f)  Timeliness of Wage and Fringe Benefit Determinations It is the intent of Congress that determinations of minimum wages and fringe benefits under section 6703(1) and (2) of this title should be made as soon as administratively feasible for all contracts subject to this chapter. In any event, the Secretary shall at least make the determinations for contracts under which more than 5 service employees are to be employed. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3815        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  6707(a)(d) 41:353. Pub. L. 89286,  4 Oct. 22, 1965 79 Stat. 1035 Pub. L. 92473,  3 Oct. 9, 1972 86 Stat. 789 6707(e) 41:355. Pub. L. 89286,  6 Oct. 22, 1965 79 Stat. 1035 6707(f) 41:358. Pub. L. 89286,  10 Pub. L. 92473,  5 Oct. 9, 1972 86 Stat. 790 Pub. L. 94273,  29 Apr. 21, 1976 90 Stat. 380 In subsection (e), the words the definition of regular rate under section 7(e) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 207(e) Public Law 89601 80 Stat. 836 In subsection (f), the words paragraphs (1) and (2) of section 2, which appear in section 10 of the Service Contract Act of 1965, as added by section 5 of Public Law 92473 86 Stat. 790 July 1, 1976 Subtitle III Contract Disputes    Chapter Sec.  71. Contract Disputes 7101 CHAPTER 71 CONTRACT DISPUTES    Sec.  7101. Definitions.  7102. Applicability of chapter.  7103. Decision by contracting officer.  7104. Contractors right of appeal from decision by contracting officer.  7105. Agency boards.  7106. Agency board procedures for accelerated and small claims.  7107. Judicial review of agency board decisions.  7108. Payment of claims.  7109. Interest.  7101. Definitions In this chapter: (1)  Administrator The term Administrator means the Administrator for Federal Procurement Policy appointed pursuant to section 1102 of this title (2)  Agency board or agency board of contract appeals The term agency board or agency board of contract appeals means (A) the Armed Services Board; (B) the Civilian Board; (C) the board of contract appeals of the Tennessee Valley Authority; or (D) the Postal Service Board established under section 7105(d)(1) of this title (3)  Agency head The term agency head means the head and any assistant head of an executive agency. The term may include the chief official of a principal division of an executive agency if the head of the executive agency so designates that chief official. (4)  Armed services board The term Armed Services Board means the Armed Services Board of Contract Appeals established under section 7105(a)(1) of this title (5)  Civilian board The term Civilian Board means the Civilian Board of Contract Appeals established under section 7105(b)(1) of this title (6)  Contracting officer The term contracting officer (A) means an individual who, by appointment in accordance with applicable regulations, has the authority to make and administer contracts and to make determinations and findings with respect to contracts; and (B) includes an authorized representative of the contracting officer, acting within the limits of the representatives authority. (7)  Contractor The term contractor means a party to a Federal Government contract other than the Federal Government. (8)  Executive agency The term executive agency means (A) an executive department as defined in section 101 of title 5 (B) a military department as defined in section 102 of title 5 (C) an independent establishment as defined in section 104 of title 5 (D) a wholly owned Government corporation as defined in section 9101(3) of title 31 (9)  Misrepresentation of fact The term misrepresentation of fact means a false statement of substantive fact, or conduct that leads to a belief of a substantive fact material to proper understanding of the matter in hand, made with intent to deceive or mislead. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3816        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7101 41:601. Pub. L. 95563,  2 Nov. 1, 1978 92 Stat. 2383 Pub. L. 104106, div. D, title XLIII,  4322(b)(5) Feb. 10, 1996 110 Stat. 677 Pub. L. 109163, div. A, title VIII,  847(d)(1) Jan. 6, 2006 119 Stat. 3393 In paragraph (8)(C), the words Government Accountability Office are substituted for General Accounting Office because of section 8(b) of the GAO Human Capital Reform Act of 2004 ( Public Law 108271 118 Stat. 814 31 U.S.C. 702 In paragraph (8)(D), the words  section 9101(3) of title 31 section 846 of title 31 section 4(b) of Public Law 97258  7102. Applicability of chapter (a)  Executive Agency Contracts Unless otherwise specifically provided in this chapter, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28) made by an executive agency for (1) the procurement of property, other than real property in being; (2) the procurement of services; (3) the procurement of construction, alteration, repair, or maintenance of real property; or (4) the disposal of personal property. (b)  Tennessee Valley Authority Contracts. (1)  In general With respect to contracts of the Tennessee Valley Authority, this chapter applies only to contracts containing a clause that requires contract disputes to be resolved through an agency administrative process. (2)  Exclusion Notwithstanding any other provision of this chapter, this chapter does not apply to a contract of the Tennessee Valley Authority for the sale of fertilizer or electric power or related to the conduct or operation of the electric power system. (c)  Foreign Government or International Organization Contracts If an agency head determines that applying this chapter would not be in the public interest, this chapter does not apply to a contract with a foreign government, an agency of a foreign government, an international organization, or a subsidiary body of an international organization. (d)  Maritime Contracts Appeals under section 7107(a) of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3817        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7102(a)(c) 41:602. Pub. L. 95563 Nov. 1, 1978 92 Stat. 2383 7102(d) 41:603. In subsection (c), the words an agency head are substituted for the head of the agency for consistency with the defined term agency head in section 7101 of the revised title. In subsection (d), the words chapter 309 or 311 of title 46 are substituted for the Act of March 9, 1920 41 Stat. 525 46 U.S.C. 741752 March 3, 1925 43 Stat. 1112 46 U.S.C. 781790 Public Law 95563 92 Stat. 2384 section 18(c) of Public Law 109304  7103. Decision by contracting officer (a)  Claims Generally. (1)  Submission of contractors claims to contracting officer Each claim by a contractor against the Federal Government relating to a contract shall be submitted to the contracting officer for a decision. (2)  Contractors claims in writing Each claim by a contractor against the Federal Government relating to a contract shall be in writing. (3)  Contracting officer to decide federal governments claims Each claim by the Federal Government against a contractor relating to a contract shall be the subject of a written decision by the contracting officer. (4)  Time for submitting claims. (A)  In general Each claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim. (B)  Exception Subparagraph (A) of this paragraph does not apply to a claim by the Federal Government against a contractor that is based on a claim by the contractor involving fraud. (5)  Applicability The authority of this subsection and subsections (c)(1), (d), and (e) does not extend to a claim or dispute for penalties or forfeitures prescribed by statute or regulation that another Federal agency is specifically authorized to administer, settle, or determine. (b)  Certification of Claims. (1)  Requirement generally For claims of more than $100,000 made by a contractor, the contractor shall certify that (A) the claim is made in good faith; (B) the supporting data are accurate and complete to the best of the contractors knowledge and belief; (C) the amount requested accurately reflects the contract adjustment for which the contractor believes the Federal Government is liable; and (D) the certifier is authorized to certify the claim on behalf of the contractor. (2)  Who may execute certification The certification required by paragraph (1) may be executed by an individual authorized to bind the contractor with respect to the claim. (3)  Failure to certify or defective certification A contracting officer is not obligated to render a final decision on a claim of more than $100,000 that is not certified in accordance with paragraph (1) if, within 60 days after receipt of the claim, the contracting officer notifies the contractor in writing of the reasons why any attempted certification was found to be defective. A defect in the certification of a claim does not deprive a court or an agency board of jurisdiction over the claim. Prior to the entry of a final judgment by a court or a decision by an agency board, the court or agency board shall require a defective certification to be corrected. (c)  Fraudulent Claims. (1)  No authority to settle This section does not authorize an agency head to settle, compromise, pay, or otherwise adjust any claim involving fraud. (2)  Liability of contractor If a contractor is unable to support any part of the contractors claim and it is determined that the inability is attributable to a misrepresentation of fact or fraud by the contractor, then the contractor is liable to the Federal Government for an amount equal to the unsupported part of the claim plus all of the Federal Governments costs attributable to reviewing the unsupported part of the claim. Liability under this paragraph shall be determined within 6 years of the commission of the misrepresentation of fact or fraud. (d)  Issuance of Decision The contracting officer shall issue a decision in writing and shall mail or otherwise furnish a copy of the decision to the contractor. (e)  Contents of Decision The contracting officers decision shall state the reasons for the decision reached and shall inform the contractor of the contractors rights as provided in this chapter. Specific findings of fact are not required. If made, specific findings of fact are not binding in any subsequent proceeding. (f)  Time for Issuance of Decision. (1)  Claim of $100,000 or less A contracting officer shall issue a decision on any submitted claim of $100,000 or less within 60 days from the contracting officers receipt of a written request from the contractor that a decision be rendered within that period. (2)  Claim of more than $100,000 A contracting officer shall, within 60 days of receipt of a submitted certified claim over $100,000 (A) issue a decision; or (B) notify the contractor of the time within which a decision will be issued. (3)  General requirement of reasonableness The decision of a contracting officer on submitted claims shall be issued within a reasonable time, in accordance with regulations prescribed by the agency, taking into account such factors as the size and complexity of the claim and the adequacy of information in support of the claim provided by the contractor. (4)  Requesting tribunal to direct issuance within specified time period A contractor may request the tribunal concerned to direct a contracting officer to issue a decision in a specified period of time, as determined by the tribunal concerned, in the event of undue delay on the part of the contracting officer. (5)  Failure to issue decision within required time period Failure by a contracting officer to issue a decision on a claim within the required time period is deemed to be a decision by the contracting officer denying the claim and authorizes an appeal or action on the claim as otherwise provided in this chapter. However, the tribunal concerned may, at its option, stay the proceedings of the appeal or action to obtain a decision by the contracting officer. (g)  Finality of Decision Unless Appealed The contracting officers decision on a claim is final and conclusive and is not subject to review by any forum, tribunal, or Federal Government agency, unless an appeal or action is timely commenced as authorized by this chapter. This chapter does not prohibit an executive agency from including a clause in a Federal Government contract requiring that, pending final decision of an appeal, action, or final settlement, a contractor shall proceed diligently with performance of the contract in accordance with the contracting officers decision. (h)  Alternative Means of Dispute Resolution. (1)  In general Notwithstanding any other provision of this chapter, a contractor and a contracting officer may use any alternative means of dispute resolution under subchapter IV of chapter 5 of title 5, or other mutually agreeable procedures, for resolving claims. All provisions of subchapter IV of chapter 5 of title 5 apply to alternative means of dispute resolution under this subsection. (2)  Certification of claim The contractor shall certify the claim when required to do so under subsection (b)(1) or other law. (3)  Rejecting request for alternative dispute resolution. (A)  Contracting officer A contracting officer who rejects a contractors request for alternative dispute resolution proceedings shall provide the contractor with a written explanation, citing one or more of the conditions in section 572(b) of title 5 (B)  Contractor A contractor that rejects an agencys request for alternative dispute resolution proceedings shall inform the agency in writing of the contractors specific reasons for rejecting the request. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3817        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7103(a)(1) 41:605(a) (1st sentence related to submission). Pub. L. 95563 Nov. 1, 1978 92 Stat. 2384 7103(a)(2) 41:605(a) (1st sentence related to writing requirement). 7103(a)(3) 41:605(a) (2d sentence). 7103(a)(4)(A) 41:605(a) (3d sentence). Pub. L. 95563,  6(a) Nov. 1, 1978 Pub. L. 103355, title II,  2351(a)(1) Oct. 13, 1994 108 Stat. 3322 Pub. L. 104106, div. D, title XLIII,  4321(a)(6) Feb. 10, 1996 110 Stat. 671 7103(a)(4)(B) 41:605(a) (4th sentence).  7103(a)(5) 41:605(a) (8th sentence). 7103(b)(1) 41:605(c)(1) (last sentence). Pub. L. 95563,  6(c)(1) Nov. 1, 1978 92 Stat. 2385 Pub. L. 102572, title IX,  907(a)(1)(A) Oct. 29, 1992 106 Stat. 4518 Pub. L. 103355, title II,  2351(b) Oct. 13, 1994 108 Stat. 3322 7103(b)(2) 41:605(c)(7). Pub. L. 95563,  6(c)(6) Pub. L. 102572, title IX,  907(a)(1)(B) Oct. 29, 1992 106 Stat. 4518 7103(b)(3) 41:605(c)(6). 7103(c)(1) 41:605(a) (last sentence). 7103(c)(2) 41:604. 7103(d) 41:605(a) (5th sentence). 7103(e) 41:605(a) (6th, 7th sentences). 7103(f)(1) 41:605(c)(1) (1st sentence). Pub. L. 95563,  6(c)(1) Nov. 1, 1978 92 Stat. 2385 Pub. L. 103355, title II,  2351(b) Oct. 13, 1994 108 Stat. 3322 7103(f)(2) 41:605(c)(2). 7103(f)(3) 41:605(c)(3). 7103(f)(4) 41:605(c)(4). Pub. L. 95563,  6(c)(4) Nov. 1, 1978 92 Stat. 2385 Pub. L. 103355, title II,  2351(e) Oct. 13, 1994 108 Stat. 3322 7103(f)(5) 41:605(c)(5). 7103(g) 41:605(b). 7103(h)(1) 41:605(d) (1st, last sentences). Pub. L. 95563,  6(d) Pub. L. 101552,  6(a) Nov. 15, 1990 104 Stat. 2745 Pub. L. 104106, div. D, title XLIII,  4322(b)(6) Feb. 10, 1996 110 Stat. 677 Pub. L. 10585, div. A, title X,  1073(g)(3) Nov. 18, 1997 111 Stat. 1906 7103(h)(2) 41:605(d) (2d sentence). Pub. L. 95563,  6(d) Pub. L. 101552,  6(a) Nov. 15, 1990 104 Stat. 2745 Pub. L. 104320,  6(1) Oct. 19, 1996 110 Stat. 3871 7103(h)(3)(A) 41:605(e) (1st sentence). Pub. L. 95563,  6(e) Pub. L. 101552,  6(a) Nov. 15, 1990 104 Stat. 2746 Pub. L. 103355, title II,  2352 Oct. 13, 1994 108 Stat. 3322 Pub. L. 104106, div. D, title XLIII Feb. 10, 1996 110 Stat. 671 Pub. L. 104320,  6(2) Oct. 19, 1996 110 Stat. 3871 Pub. L. 10585, div. A, title X,  1073(g)(3) Nov. 18, 1997 111 Stat. 1906 7103(h)(3)(B) 41:605(e) (last sentence).  In subsection (b)(1)(D) and (2), the word duly is omitted as unnecessary. In subsection (b)(3), the words of contract appeals are omitted as unnecessary because of the definition of agency board in section 7101 of the revised title. In subsection (c)(2), the words this subsection, which appear in section 5 of the Contract Disputes Act of 1978 ( Pub. L. 95563 92 Stat. 2384 In subsection (f)(5), the words the commencement of are omitted as unnecessary. The words of the appeal or action are substituted for in the event an appeal or suit is so commenced in the absence of a prior decision by the contracting officer to eliminate unnecessary words.  7104. Contractors right of appeal from decision by contracting officer (a)  Appeal to Agency Board A contractor, within 90 days from the date of receipt of a contracting officers decision under section 7103 of this title section 7105 of this title (b)  Bringing an Action De Novo in Federal Court. (1)  In general Except as provided in paragraph (2), and in lieu of appealing the decision of a contracting officer under section 7103 of this title (2)  Tennessee valley authority In the case of an action against the Tennessee Valley Authority, the contractor may only bring an action directly on the claim in a district court of the United States pursuant to section 1337 of title 28 (3)  Time for filing A contractor shall file any action under paragraph (1) or (2) within 12 months from the date of receipt of a contracting officers decision under section 7103 of this title (4)  De novo An action under paragraph (1) or (2) shall proceed de novo in accordance with the rules of the appropriate court. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3820        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7104(a) 41:606. Pub. L. 95563,  7 Nov. 1, 1978 92 Stat. 2385 7104(b) 41:609(a). Pub. L. 95563,  10(a) Nov. 1, 1978 92 Stat. 2388 Pub. L. 97164, title I,  161(10) Apr. 2, 1982 96 Stat. 49 In subsection (a), the words of contract appeals are omitted as unnecessary because of the definition of agency board in section 7101 of the revised title. In subsection (b)(1), the words United States Court of Federal Claims are substituted for United States Claims Court because of section 902(b)(1) of the Federal Courts Administration Act of 1992 ( Pub. L. 102572 106 Stat. 4516 28 U.S.C. 171  7105. Agency boards (a)  Armed Services Board. (1)  Establishment An Armed Services Board of Contract Appeals may be established within the Department of Defense when the Secretary of Defense, after consultation with the Administrator, determines from a workload study that the volume of contract claims justifies the establishment of a full-time agency board of at least 3 members who shall have no other inconsistent duties. Workload studies will be updated at least once every 3 years and submitted to the Administrator. (2)  Appointment of members and compensation Members of the Armed Services Board shall be selected and appointed in the same manner as administrative law judges appointed pursuant to section 3105 of title 5 section 5372a of title 5 (b)  Civilian Board. (1)  Establishment There is established in the General Services Administration the Civilian Board of Contract Appeals. (2)  Membership. (A)  Eligibility The Civilian Board consists of members appointed by the Administrator of General Services (in consultation with the Administrator for Federal Procurement Policy) from a register of applicants maintained by the Administrator of General Services, in accordance with rules issued by the Administrator of General Services (in consultation with the Administrator for Federal Procurement Policy) for establishing and maintaining a register of eligible applicants and selecting Civilian Board members. The Administrator of General Services shall appoint a member without regard to political affiliation and solely on the basis of the professional qualifications required to perform the duties and responsibilities of a Civilian Board member. (B)  Appointment of members and compensation Members of the Civilian Board shall be selected and appointed to serve in the same manner as administrative law judges appointed pursuant to section 3105 of title 5 section 5372a of title 5 (3)  Removal Members of the Civilian Board are subject to removal in the same manner as administrative law judges, as provided in section 7521 of title 5 (4)  Functions. (A)  In general The Civilian Board has jurisdiction as provided by subsection (e)(1)(B). (B)  Additional jurisdiction With the concurrence of the Federal agencies affected, the Civilian Board may assume (i) jurisdiction over any additional category of laws or disputes over which an agency board of contract appeals established pursuant to section 8 of the Contract Disputes Act exercised jurisdiction before January 6, 2007 (ii) any other function the agency board performed before January 6, 2007 (c)  Tennessee Valley Authority Board. (1)  Establishment The Board of Directors of the Tennessee Valley Authority may establish a board of contract appeals of the Tennessee Valley Authority of an indeterminate number of members. (2)  Appointment of members and compensation The Board of Directors of the Tennessee Valley Authority shall establish criteria for the appointment of members to the agency board established under paragraph (1), and shall designate a chairman of the agency board. The chairman and other members of the agency board shall receive compensation, at the daily equivalent of the rates determined under section 5372a of title 5 (d)  Postal Service Board. (1)  Establishment There is established an agency board of contract appeals known as the Postal Service Board of Contract Appeals. (2)  Appointment and service of members The Postal Service Board of Contract Appeals consists of judges appointed by the Postmaster General. The judges shall meet the qualifications of and serve in the same manner as members of the Civilian Board. (3)  Application This chapter applies to contract disputes before the Postal Service Board of Contract Appeals in the same manner as it applies to contract disputes before the Civilian Board. (e)  Jurisdiction. (1)  In general. (A)  Armed services board The Armed Services Board has jurisdiction to decide any appeal from a decision of a contracting officer of the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, or the National Aeronautics and Space Administration relative to a contract made by that department or agency. (B)  Civilian board The Civilian Board has jurisdiction to decide any appeal from a decision of a contracting officer of any executive agency (other than the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, the National Aeronautics and Space Administration, the United States Postal Service, the Postal Regulatory Commission, or the Tennessee Valley Authority) relative to a contract made by that agency. (C)  Postal service board The Postal Service Board of Contract Appeals has jurisdiction to decide any appeal from a decision of a contracting officer of the United States Postal Service or the Postal Regulatory Commission relative to a contract made by either agency. (D)  Other agency boards Each other agency board has jurisdiction to decide any appeal from a decision of a contracting officer relative to a contract made by its agency. (2)  Relief In exercising this jurisdiction, an agency board may grant any relief that would be available to a litigant asserting a contract claim in the United States Court of Federal Claims. (f)  Subpoena, Discovery, and Deposition A member of an agency board of contract appeals may administer oaths to witnesses, authorize depositions and discovery proceedings, and require by subpoena the attendance of witnesses, and production of books and papers, for the taking of testimony or evidence by deposition or in the hearing of an appeal by the agency board. In case of contumacy or refusal to obey a subpoena by a person who resides, is found, or transacts business within the jurisdiction of a United States district court, the court, upon application of the agency board through the Attorney General, or upon application by the board of contract appeals of the Tennessee Valley Authority, shall have jurisdiction to issue the person an order requiring the person to appear before the agency board or a member of the agency board, to produce evidence or to give testimony, or both. Any failure of the person to obey the order of the court may be punished by the court as contempt of court. (g)  Decisions An agency board shall (1) to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of disputes; (2) issue a decision in writing or take other appropriate action on each appeal submitted; and (3) mail or otherwise furnish a copy of the decision to the contractor and the contracting officer. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3820 Pub. L. 111259, title IV,  422 Oct. 7, 2010 124 Stat. 2727 Pub. L. 111383, div. A, title X,  1075 o Jan. 7, 2011 124 Stat. 4378  Amendments Not Shown in Text Subsecs. (b) and (e)(1)(A), (B), (D) and (2) of this section were derived from sections 438 and 607(d), respectively, of former Title 41, Public Contracts. Sections 438 and 607(d) were amended by Pub. L. 111383, div. A, title X,  1075 o Jan. 7, 2011 124 Stat. 4378 Pub. L. 111259, title IV,  422 Oct. 7, 2010 124 Stat. 2727 Pub. L. 111350 Jan. 4, 2011 124 Stat. 3677 section 6(a) of Pub. L. 111350 section 101 of this title 41 U.S.C. 607(b) 41 U.S.C. 607(d)       Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7105(a) 41:607(a)(1), (b)(1). Pub. L. 95563,  8(a)(1) Nov. 1, 1978 92 Stat. 2385 Pub. L. 101509, title V,  529 [title I,  104(d)(4)] Nov. 5, 1990 104 Stat. 1447 Pub. L. 109163, div. A, title VIII,  847(d)(3) Jan. 6, 2006 119 Stat. 3394 7105(b) 41:438. Pub. L. 93400,  42 Pub. L. 109163, div. A, title VIII,  847(a) Jan. 6, 2006 119 Stat. 3391 7105(c) 41:607(a)(2), (b)(2). Pub. L. 95563,  8(a)(2) Nov. 1, 1978 92 Stat. 2385 7105(d) 41:607(c) (1st, 3d, last sentences). Pub. L. 95563,  8(c) Nov. 1, 1978 92 Stat. 2386 Pub. L. 109163, div. A, title VIII,  847(d)(2)(B) Jan. 6, 2006 119 Stat. 3394 7105(e)(1) (A), (B) 41:607(d) (1st, 2d sentences). Pub. L. 95563,  8(d) Nov. 1, 1978 92 Stat. 2386 Pub. L. 97164, title I,  160(a)(15) Apr. 2, 1982 96 Stat. 48 Pub. L. 109163, div. A, title VIII,  847(d)(2)(A) Jan. 6, 2006 119 Stat. 3393 7105(e)(1)(C) 41:607(c) (2d sentence). 7105(e)(1)(D) 41:607(d) (3d sentence). 7105(e)(2) 41:607(d) (last sentence). 7105(f) 41:610. Pub. L. 95563,  11 Nov. 1, 1978 92 Stat. 2388 7105(g) 41:607(e). Pub. L. 95563,  8(e) Nov. 1, 1978 92 Stat. 2386 In subsection (a)(2), the words administrative law judges are substituted for hearing examiners because of section 3 of Public Law 95251 5 U.S.C. 3105 In subsection (b), the text of 41 U.S.C. 438 In subsection (e)(1)(B) and (C), the words Postal Regulatory Commission are substituted for Postal Rate Commission because of section 604(f) of the Postal Accountability and Enhancement Act ( Public Law 109435 120 Stat. 3242 39 U.S.C. 404 Editorial Notes  References in Text Section 8 of the Contract Disputes Act, referred to in subsec. (b)(4)(B)(i), probably means section 8 of Pub. L. 95563 section 607 of this title Pub. L. 111350 Jan. 4, 2011 124 Stat. 3677  7106. Agency board procedures for accelerated and small claims (a)  Accelerated Procedure Where or Less in Dispute The rules of each agency board shall include a procedure for the accelerated disposition of any appeal from a decision of a contracting officer where the amount in dispute is $100,000 or less. The accelerated procedure is applicable at the sole election of the contractor. An appeal under the accelerated procedure shall be resolved, whenever possible, within 180 days from the date the contractor elects to use the procedure. (b)  Small Claims Procedure. (1)  In general The rules of each agency board shall include a procedure for the expedited disposition of any appeal from a decision of a contracting officer where the amount in dispute is $50,000 or less, or in the case of a small business concern (as defined in the Small Business Act ( 15 U.S.C. 631 (2)  Simplified rules of procedure The small claims procedure shall provide for simplified rules of procedure to facilitate the decision of any appeal. An appeal under the small claims procedure may be decided by a single member of the agency board with such concurrences as may be provided by rule or regulation. (3)  Time of decision An appeal under the small claims procedure shall be resolved, whenever possible, within 120 days from the date the contractor elects to use the procedure. (4)  Finality of decision A decision against the Federal Government or against the contractor reached under the small claims procedure is final and conclusive and may not be set aside except in cases of fraud. (5)  No precedent Administrative determinations and final decisions under this subsection have no value as precedent for future cases under this chapter. (6)  Review of requisite amounts in controversy The Administrator, from time to time, may review the dollar amounts specified in paragraph (1) and adjust the amounts in accordance with economic indexes selected by the Administrator. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3823        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7106(a) 41:607(f). Pub. L. 95563,  8(f) Nov. 1, 1978 92 Stat. 2386 Pub. L. 103355, title II,  2351(c) Oct. 13, 1994 108 Stat. 3322 7106(b) 41:608. Pub. L. 95563,  9 Nov. 1, 1978 92 Stat. 2387 Pub. L. 103355, title II,  2351(d) Oct. 13, 1994 Pub. L. 109364, div. A, title VIII,  857 Oct. 17, 2006 120 Stat. 2349 In subsection (a), the word only is omitted for consistency with a similar provision in 41:608(a) and because the word only is redundant with the word sole. In subsection (b)(6), the words from time to time, may review are substituted for is authorized to review at least every three years because the source law, while effectively granting the Administrator authority to conduct the reviews, does not require the Administrator to conduct any reviews, and does not restrict the number of reviews the Administrator may conduct during any time period. The words beginning with the third year after November 1, 1978 Senate Revision Amendment In subsec. (b)(6),  amounts amount  7107. Judicial review of agency board decisions (a)  Review. (1)  In general The decision of an agency board is final, except that (A) a contractor may appeal the decision to the United States Court of Appeals for the Federal Circuit within 120 days from the date the contractor receives a copy of the decision; or (B) if an agency head determines that an appeal should be taken, the agency head, with the prior approval of the Attorney General, may transmit the decision to the United States Court of Appeals for the Federal Circuit for judicial review under section 1295 of title 28 (2)  Tennessee valley authority Notwithstanding paragraph (1), a decision of the board of contract appeals of the Tennessee Valley Authority is final, except that (A) a contractor may appeal the decision to a United States district court pursuant to section 1337 of title 28 (B) the Tennessee Valley Authority may appeal the decision to a United States district court pursuant to section 1337 of title 28 (3)  Review of arbitration An award by an arbitrator under this chapter shall be reviewed pursuant to sections 9 to 13 of title 9, except that the court may set aside or limit any award that is found to violate limitations imposed by Federal statute. (b)  Finality of Agency Board Decisions on Questions of Law and Fact Notwithstanding any contract provision, regulation, or rule of law to the contrary, in an appeal by a contractor or the Federal Government from the decision of an agency board pursuant to subsection (a) (1) the decision of the agency board on a question of law is not final or conclusive; but (2) the decision of the agency board on a question of fact is final and conclusive and may not be set aside unless the decision is (A) fraudulent, arbitrary, or capricious; (B) so grossly erroneous as to necessarily imply bad faith; or (C) not supported by substantial evidence. (c)  Remand In an appeal by a contractor or the Federal Government from the decision of an agency board pursuant to subsection (a), the court may render an opinion and judgment and remand the case for further action by the agency board or by the executive agency as appropriate, with direction the court considers just and proper. (d)  Consolidation If 2 or more actions arising from one contract are filed in the United States Court of Federal Claims and one or more agency boards, for the convenience of parties or witnesses or in the interest of justice, the United States Court of Federal Claims may order the consolidation of the actions in that court or transfer any actions to or among the agency boards involved. (e)  Judgments as to Fewer Than All Claims or Parties In an action filed pursuant to this chapter involving 2 or more claims, counterclaims, cross-claims, or third-party claims, and where a portion of one of the claims can be divided for purposes of decision or judgment, and in any action where multiple parties are involved, the court, whenever appropriate, may enter a judgment as to one or more but fewer than all of the claims or portions of claims or parties. (f)  Advisory Opinions. (1)  In general Whenever an action involving an issue described in paragraph (2) is pending in a district court of the United States, the district court may request an agency board to provide the court with an advisory opinion on the matters of contract interpretation under consideration. (2)  Applicable issue An issue referred to in paragraph (1) is any issue that could be the proper subject of a final decision of a contracting officer appealable under this chapter. (3)  Referral to agency board with jurisdiction A district court shall direct a request under paragraph (1) to the agency board having jurisdiction under this chapter to adjudicate appeals of contract claims under the contract being interpreted by the court. (4)  Timely response After receiving a request for an advisory opinion under paragraph (1), an agency board shall provide the advisory opinion in a timely manner to the district court making the request. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3824        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7107(a) 41:607(g). Pub. L. 95563,  8(g) Nov. 1, 1978 92 Stat. 2387 Pub. L. 97164, title I,  156 Apr. 2, 1982 96 Stat. 47 Pub. L. 101552,  6(b) Nov. 15, 1990 104 Stat. 2746 7107(b) 41:609(b). Pub. L. 95563,  10(b) Nov. 1, 1978 92 Stat. 2388 7107(c) 41:609(c). Pub. L. 95563,  10(c) Nov. 1, 1978 92 Stat. 2388 Pub. L. 97164, title I,  157 Apr. 2, 1982 96 Stat. 47 7107(d) 41:609(d). Pub. L. 95563,  10(d) Nov. 1, 1978 92 Stat. 2388 Pub. L. 97164, title I,  160(a)(15) Apr. 2, 1982 96 Stat. 48 7107(e) 41:609(e). 7107(f) 41:609(f). Pub. L. 95563,  10(f) Pub. L. 103355, title II,  2354 Oct. 13, 1994 108 Stat. 3323 In subsection (a)(1)(B), the words may transmit are substituted for transmits to correct the grammatical structure of the provision in accordance with the probable intent of Congress. The words the decision are substituted for the decision of the board of contract appeals and for the boards decision to eliminate unnecessary words and for consistency with 41:607(g)(1)(A). In subsection (a)(2)(B), the words in any case are omitted as unnecessary. In subsection (d), the words United States Court of Federal Claims are substituted for United States Claims Court because of section 902(b)(1) of the Federal Courts Administration Act of 1992 ( Pub. L. 102572 106 Stat. 4516 28 U.S.C. 171 In subsection (f)(1), (3), and (4), the words agency board are substituted for board of contract appeals to eliminate unnecessary words and for consistency with the definition of agency board in section 7101 of the revised title. In subsection (f)(1), the words under consideration are substituted for at issue to avoid potential confusion with the words issue described in paragraph (2).  7108. Payment of claims (a)  Judgments Any judgment against the Federal Government on a claim under this chapter shall be paid promptly in accordance with the procedures provided by section 1304 of title 31 (b)  Monetary Awards Any monetary award to a contractor by an agency board shall be paid promptly in accordance with the procedures contained in subsection (a). (c)  Reimbursement Payments made pursuant to subsections (a) and (b) shall be reimbursed to the fund provided by section 1304 of title 31 (d)  Tennessee Valley Authority. (1)  Judgments Notwithstanding subsections (a) to (c), any judgment against the Tennessee Valley Authority on a claim under this chapter shall be paid promptly in accordance with section 9(b) of the Tennessee Valley Authority Act of 1933 ( 16 U.S.C. 831h(b) (2)  Monetary awards Notwithstanding subsections (a) to (c), any monetary award to a contractor by the board of contract appeals of the Tennessee Valley Authority shall be paid in accordance with section 9(b) of the Tennessee Valley Authority Act of 1933 ( 16 U.S.C. 831h(b) ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3825        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7108 41:612. Pub. L. 95563,  13 Nov. 1, 1978 92 Stat. 2389 Pub. L. 104106, div. D, title XLIII,  4322(b)(7) Feb. 10, 1996 110 Stat. 677  7109. Interest (a)  Period. (1)  In general Interest on an amount found due a contractor on a claim shall be paid to the contractor for the period beginning with the date the contracting officer receives the contractors claim, pursuant to section 7103(a) of this title (2)  Defective certification On a claim for which the certification under section 7103(b)(1) of this title (b)  Rate Interest shall accrue and be paid at a rate which the Secretary of the Treasury shall specify as applicable for each successive 6-month period. The rate shall be determined by the Secretary of the Treasury taking into consideration current private commercial rates of interest for new loans maturing in approximately 5 years. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3825        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  7109(a)(1) 41:611 (1st sentence). Pub. L. 95563,  12 Nov. 1, 1978 92 Stat. 2389 7109(a)(2) 41:611 note. Pub. L. 102572, title IX,  907(a)(3) Oct. 29, 1992 106 Stat. 4518 7109(b) 41:611 (last sentence). In subsection (a)(2), the words on or after the date of the enactment of this Act, the later of, and or the date of the enactment of this Act are omitted as obsolete. Subsection (b) is substituted for The interest provided for in this section shall be paid at the rate established by the Secretary of the Treasury pursuant to Public Law 9241 85 Stat. 97 Section 2(a)(3) of the Act of July 1, 1971 Pub. L. 9241 85 Stat. 97 Mar. 23, 1951, ch. 15 65 Stat. 13 Mar. 23, 1951, ch. 15 65 Stat. 7 65 Stat. 8 Public Law 94185 89 Stat. 1061 September 30, 1976 March 31, 1979 Public Law 95431 92 Stat. 1043 December 24, 2002 Subtitle IV Miscellaneous    Chapter Sec.  81. Drug-Free Workplace 8101  83. Buy American 8301  85. Committee for Purchase From People Who Are Blind or Severely Disabled 8501  87. Kickbacks 8701 CHAPTER 81 DRUG-FREE WORKPLACE    Sec.  8101. Definitions and construction.  8102. Drug-free workplace requirements for Federal contractors.  8103. Drug-free workplace requirements for Federal grant recipients.  8104. Employee sanctions and remedies.  8105. Waiver.  8106. Regulations.  8101. Definitions and construction (a)  Definitions In this chapter: (1)  Contractor The term contractor means the department, division, or other unit of a person responsible for the performance under the contract. (2)  Controlled substance The term controlled substance means a controlled substance in schedules I through V of section 202 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 ( 21 U.S.C. 812 (3)  Conviction The term conviction means a finding of guilt (including a plea of nolo contendere), an imposition of sentence, or both, by a judicial body charged with the responsibility to determine violations of Federal or State criminal drug statutes. (4)  Criminal drug statute The term criminal drug statute means a criminal statute involving manufacture, distribution, dispensation, use, or possession of a controlled substance. (5)  Drug-free workplace The term drug-free workplace means a site of an entity (A) for the performance of work done in connection with a specific contract or grant described in section 8102 or 8103 of this title; and (B) at which employees of the entity are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in accordance with the requirements of the Anti-Drug Abuse Act of 1988 ( Public Law 100690 102 Stat. 4181 (6)  Employee The term employee means the employee of a contractor or grantee directly engaged in the performance of work pursuant to the contract or grant described in section 8102 or 8103 of this title. (7)  Federal agency The term Federal agency means an agency as defined in section 552(f) of title 5 (8)  Grantee The term grantee means the department, division, or other unit of a person responsible for the performance under the grant. (b)  Construction This chapter does not require law enforcement agencies to comply with this chapter if the head of the agency determines it would be inappropriate in connection with the agencys undercover operations. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3826        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8101(a)(1) 41:706(7). Pub. L. 100690, title V Nov. 18, 1988 102 Stat. 4308 8101(a)(2) 41:706(3). 8101(a)(3) 41:706(4). 8101(a)(4) 41:706(5). 8101(a)(5) 41:706(1). 8101(a)(6) 41:706(2). 8101(a)(7) 41:706(8). 8101(a)(8) 41:706(6). 8101(b) 41:707.  8102. Drug-free workplace requirements for Federal contractors (a)  In General. (1)  Persons other than individuals A person other than an individual shall not be considered a responsible source (as defined in section 113 of this title section 134 of this title (A) publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the persons workplace and specifying the actions that will be taken against employees for violations of the prohibition; (B) establishing a drug-free awareness program to inform employees about (i) the dangers of drug abuse in the workplace; (ii) the persons policy of maintaining a drug-free workplace; (iii) available drug counseling, rehabilitation, and employee assistance programs; and (iv) the penalties that may be imposed on employees for drug abuse violations; (C) making it a requirement that each employee to be engaged in the performance of the contract be given a copy of the statement required by subparagraph (A); (D) notifying the employee in the statement required by subparagraph (A) that as a condition of employment on the contract the employee will (i) abide by the terms of the statement; and (ii) notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction; (E) notifying the contracting agency within 10 days after receiving notice under subparagraph (D)(ii) from an employee or otherwise receiving actual notice of a conviction; (F) imposing a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted, as required by section 8104 of this title (G) making a good faith effort to continue to maintain a drug-free workplace through implementation of subparagraphs (A) to (F). (2)  Individuals A Federal agency shall not make a contract with an individual unless the individual agrees not to engage in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in the performance of the contract. (b)  Suspension, Termination, or Debarment of Contractor. (1)  Grounds for suspension, termination, or debarment Payment under a contract awarded by a Federal agency may be suspended and the contract may be terminated, and the contractor or individual who made the contract with the agency may be suspended or debarred in accordance with the requirements of this section, if the head of the agency determines that (A) the contractor is violating, or has violated, the requirements of subparagraph (A), (B), (C), (D), (E), or (F) of subsection (a)(1); or (B) the number of employees of the contractor who have been convicted of violations of criminal drug statutes for violations occurring in the workplace indicates that the contractor has failed to make a good faith effort to provide a drug-free workplace as required by subsection (a). (2)  Conduct of suspension, termination, and debarment proceedings A contracting officer who determines in writing that cause for suspension of payments, termination, or suspension or debarment exists shall initiate an appropriate action, to be conducted by the agency concerned in accordance with the Federal Acquisition Regulation and applicable agency procedures. The Federal Acquisition Regulation shall be revised to include rules for conducting suspension and debarment proceedings under this subsection, including rules providing notice, opportunity to respond in writing or in person, and other procedures as may be necessary to provide a full and fair proceeding to a contractor or individual. (3)  Effect of debarment A contractor or individual debarred by a final decision under this subsection is ineligible for award of a contract by a Federal agency, and for participation in a future procurement by a Federal agency, for a period specified in the decision, not to exceed 5 years. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3827 Pub. L. 115232, div. A, title VIII,  836(b)(20) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8102 41:701. Pub. L. 100690, title V,  5152 Nov. 18, 1988 102 Stat. 4304 Pub. L. 103355, title IV,  4104(d) Oct. 13, 1994 108 Stat. 3342 Pub. L. 104106, div. D, title XLIII Feb. 10, 1996 110 Stat. 656 Editorial Notes Amendments 2018Subsec. (a)(1). Pub. L. 115232 section 103 of this title Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  8103. Drug-free workplace requirements for Federal grant recipients (a)  In General. (1)  Persons other than individuals A person other than an individual shall not receive a grant from a Federal agency unless the person agrees to provide a drug-free workplace by (A) publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the grantees workplace and specifying the actions that will be taken against employees for violations of the prohibition; (B) establishing a drug-free awareness program to inform employees about (i) the dangers of drug abuse in the workplace; (ii) the grantees policy of maintaining a drug-free workplace; (iii) available drug counseling, rehabilitation, and employee assistance programs; and (iv) the penalties that may be imposed on employees for drug abuse violations; (C) making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by subparagraph (A); (D) notifying the employee in the statement required by subparagraph (A) that as a condition of employment in the grant the employee will (i) abide by the terms of the statement; and (ii) notify the employer of any criminal drug statute conviction for a violation occurring in the workplace no later than 5 days after the conviction; (E) notifying the granting agency within 10 days after receiving notice under subparagraph (D)(ii) from an employee or otherwise receiving actual notice of a conviction; (F) imposing a sanction on, or requiring the satisfactory participation in a drug abuse assistance or rehabilitation program by, any employee who is convicted, as required by section 8104 of this title (G) making a good faith effort to continue to maintain a drug-free workplace through implementation of subparagraphs (A) to (F). (2)  Individuals A Federal agency shall not make a grant to an individual unless the individual agrees not to engage in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in conducting an activity with the grant. (b)  Suspension, Termination, or Debarment of Grantee. (1)  Grounds for suspension, termination, or debarment Payment under a grant awarded by a Federal agency may be suspended and the grant may be terminated, and the grantee may be suspended or debarred, in accordance with the requirements of this section, if the head of the agency or the official designee of the head of the agency determines in writing that (A) the grantee is violating, or has violated, the requirements of subparagraph (A), (B), (C), (D), (E), (F), or (G) of subsection (a)(1); or (B) the number of employees of the grantee who have been convicted of violations of criminal drug statutes for violations occurring in the workplace indicates that the grantee has failed to make a good faith effort to provide a drug-free workplace as required by subsection (a)(1). (2)  Conduct of suspension, termination, and debarment proceedings A suspension of payments, termination, or suspension or debarment proceeding subject to this subsection shall be conducted in accordance with applicable law, including Executive Order 12549 or any superseding executive order and any regulations prescribed to implement the law or executive order. (3)  Effect of debarment A grantee debarred by a final decision under this subsection is ineligible for award of a grant by a Federal agency, and for participation in a future grant by a Federal agency, for a period specified in the decision, not to exceed 5 years. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3828        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8103 41:702. Pub. L. 100690, title V,  5153 Nov. 18, 1988 102 Stat. 4306 Pub. L. 10585, div. A, title VIII,  809 Nov. 18, 1997 111 Stat. 1838  8104. Employee sanctions and remedies Within 30 days after receiving notice from an employee of a conviction pursuant to section 8102(a)(1)(D)(ii) or 8103(a)(1)(D)(ii) of this title, a contractor or grantee shall (1) take appropriate personnel action against the employee, up to and including termination; or (2) require the employee to satisfactorily participate in a drug abuse assistance or rehabilitation program approved for those purposes by a Federal, State, or local health, law enforcement, or other appropriate agency. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3830        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8104 41:703. Pub. L. 100690, title V,  5154 Nov. 18, 1988 102 Stat. 4307  8105. Waiver (a)  In General The head of an agency may waive a suspension of payments, termination of the contract or grant, or suspension or debarment of a contractor or grantee under this chapter with respect to a particular contract or grant if (1) in the case of a contract, the head of the agency determines under section 8102(b)(1) of this title (2) in the case of a grant, the head of the agency determines that suspension of payments, termination of the grant, or suspension or debarment of the grantee would not be in the public interest. (b)  Waiver Authority May Not Be Delegated The authority of the head of an agency under this section to waive a suspension, termination, or debarment shall not be delegated. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3830        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8105 41:704. Pub. L. 100690, title V,  5155 Nov. 18, 1988 102 Stat. 4307  8106. Regulations  Government-wide regulations governing actions under this chapter shall be issued pursuant to division B of subtitle I of this title. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3830        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8106 41:705. Pub. L. 100690, title V,  5156 Nov. 18, 1988 102 Stat. 4308 The words Not later than 90 days after November 18, 1988 CHAPTER 83 BUY AMERICAN    Sec.  8301. Definitions.  8302. American materials required for public use.  8303. Contracts for public works.  8304. Waiver rescission.  8305. Annual report.  8301. Definitions In this chapter: (1)  Public building, public use, and public work The terms public building, public use, and public work mean a public building of, use by, and a public work of, the Federal Government, the District of Columbia, Puerto Rico, American Samoa, and the Virgin Islands. (2)  United states The term United States includes any place subject to the jurisdiction of the United States. (3)  Federal agency The term Federal agency has the meaning given the term executive agency in section 133 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3830 Pub. L. 11758, div. G, title IX,  70922(d) Nov. 15, 2021 135 Stat. 1304        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8301 41:10c. Mar. 3, 1933, ch. 212 47 Stat. 1520 Pub. L. 8670,  43 June 25, 1959 73 Stat. 151 Pub. L. 86624,  28 July 12, 1960 74 Stat. 419 Pub. L. 100418, title VII,  7005(a) Aug. 23, 1988 102 Stat. 1552 In paragraph (1), the words the Philippine Islands are omitted because of Proclamation No. 2695 ( 22 U.S.C. 1394 In paragraph (2), the words when used in a geographical sense are omitted as unnecessary. Editorial Notes Amendments 2021Par. (3). Pub. L. 11758 Statutory Notes and Related Subsidiaries Build America, Buy America Pub. L. 11758, div. G, title IX Nov. 15, 2021 135 Stat. 1294 Pub. L. 117167, div. B, title II,  10254 Aug. 9, 2022 136 Stat. 1502 Subtitle ABuild America, Buy America SEC. 70901. SHORT TITLE. This subtitle may be cited as the Build America, Buy America Act. PART IBUY AMERICA SOURCING REQUIREMENTS SEC. 70911. FINDINGS. Congress finds that (1) the United States must make significant investments to install, upgrade, or replace the public works infrastructure of the United States; (2) with respect to investments in the infrastructure of the United States, taxpayers expect that their public works infrastructure will be produced in the United States by American workers; (3) United States taxpayer dollars invested in public infrastructure should not be used to reward companies that have moved their operations, investment dollars, and jobs to foreign countries or foreign factories, particularly those that do not share or openly flout the commitments of the United States to environmental, worker, and workplace safety protections; (4) in procuring materials for public works projects, entities using taxpayer-financed Federal assistance should give a commonsense procurement preference for the materials and products produced by companies and workers in the United States in accordance with the high ideals embodied in the environmental, worker, workplace safety, and other regulatory requirements of the United States; (5) common construction materials used in public works infrastructure projects, including steel, iron, manufactured products, non-ferrous metals, plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymers used in fiber optic cables), glass (including optic glass), lumber, and drywall are not adequately covered by a domestic content procurement preference, thus limiting the impact of taxpayer purchases to enhance supply chains in the United States; (6) the benefits of domestic content procurement preferences extend beyond economics; (7) by incentivizing domestic manufacturing, domestic content procurement preferences reinvest tax dollars in companies and processes using the highest labor and environmental standards in the world; (8) strong domestic content procurement preference policies act to prevent shifts in production to countries that rely on production practices that are significantly less energy efficient and far more polluting than those in the United States; (9) for over 75 years, Buy America and other domestic content procurement preference laws have been part of the United States procurement policy, ensuring that the United States can build and rebuild the infrastructure of the United States with high-quality American-made materials; (10) before the date of enactment of this Act [ Nov. 15, 2021 (11) Buy America laws create demand for domestically produced goods, helping to sustain and grow domestic manufacturing and the millions of jobs domestic manufacturing supports throughout product supply chains; (12) as of the date of enactment of this Act, domestic content procurement preference policies apply to all Federal Government procurement and to various Federal-aid infrastructure programs; (13) a robust domestic manufacturing sector is a vital component of the national security of the United States; (14) as more manufacturing operations of the United States have moved offshore, the strength and readiness of the defense industrial base of the United States has been diminished; and (15) domestic content procurement preference laws (A) are fully consistent with the international obligations of the United States; and (B) together with the government procurements to which the laws apply, are important levers for ensuring that United States manufacturers can access the government procurement markets of the trading partners of the United States. SEC. 70912. DEFINITIONS. In this part: (1) Deficient program (2) Domestic content procurement preference (A) all iron and steel used in the project are produced in the United States; (B) the manufactured products used in the project are produced in the United States; or (C) the construction materials used in the project are produced in the United States. (3) Federal agency section 3502 of title 44 (4) Federal financial assistance. (A) In general (B) Inclusion 42 U.S.C. 5170a 42 U.S.C. 5170 (5) Infrastructure (A) roads, highways, and bridges; (B) public transportation; (C) dams, ports, harbors, and other maritime facilities; (D) intercity passenger and freight railroads; (E) freight and intermodal facilities; (F) airports; (G) water systems, including drinking water and wastewater systems; (H) electrical transmission facilities and systems; (I) utilities; (J) broadband infrastructure; and (K) buildings and real property. (6) Produced in the united states (A) in the case of iron or steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States; (B) in the case of manufactured products, that (i) the manufactured product was manufactured in the United States; and (ii) the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and (C) in the case of construction materials, that all manufacturing processes for the construction material occurred in the United States. (7) Project SEC. 70913. IDENTIFICATION OF DEFICIENT PROGRAMS. (a) In General Nov. 15, 2021 (1) submit to the Office of Management and Budget and to Congress, including a separate notice to each appropriate congressional committee, a report that identifies each Federal financial assistance program for infrastructure administered by the Federal agency; and (2) publish in the Federal Register the report under paragraph (1). (b) Requirements (1) identify all domestic content procurement preferences applicable to the Federal financial assistance; (2) assess the applicability of the domestic content procurement preference requirements, including (A) section 313 of title 23 (B) section 5323(j) of title 49 (C) section 22905(a) of title 49 (D) section 50101 of title 49 (E) section 603 [sic; probably should be section 608] of the Federal Water Pollution Control Act ( 33 U.S.C. 1388 (F) section 1452(a)(4) of the Safe Drinking Water Act ( 42 U.S.C. 300j12(a)(4) (G) section 5035 of the Water Infrastructure Finance and Innovation Act of 2014 ( 33 U.S.C. 3914 (H) any domestic content procurement preference included in an appropriations Act; and (I) any other domestic content procurement preference in Federal law (including regulations); (3) provide details on any applicable domestic content procurement preference requirement, including the purpose, scope, applicability, and any exceptions and waivers issued under the requirement; and (4) include a description of the type of infrastructure projects that receive funding under the program, including information relating to (A) the number of entities that are participating in the program; (B) the amount of Federal funds that are made available for the program for each fiscal year; and (C) any other information the head of the Federal agency determines to be relevant. (c) List of Deficient Programs (1) does not apply in a manner consistent with section 70914; or (2) is subject to a waiver of general applicability not limited to the use of specific products for use in a specific project. SEC. 70914. APPLICATION OF BUY AMERICA PREFERENCE. (a) In General Nov. 15, 2021 (b) Waiver (1) applying the domestic content procurement preference would be inconsistent with the public interest; (2) types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or (3) the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent. (c) Written Justification (1) make publicly available in an easily accessible location on a website designated by the Office of Management and Budget and on the website of the Federal agency a detailed written explanation for the proposed determination to issue the waiver; and (2) provide a period of not less than 15 days for public comment on the proposed waiver. (d) Review of Waivers of General Applicability. (1) In general (2) Review (A) publish in the Federal Register a notice that (i) describes the justification for a general applicability waiver; and (ii) requests public comments for a period of not less than 30 days on the continued need for a general applicability waiver; and (B) publish in the Federal Register a determination on whether to continue or discontinue the general applicability waiver, taking into account the comments received in response to the notice published under subparagraph (A). (3) Limitation on the review of existing waivers of general applicability (e) Consistency With International Agreements SEC. 70915. OMB GUIDANCE AND STANDARDS. (a) Guidance (1) issue guidance to the head of each Federal agency (A) to assist in identifying deficient programs under section 70913(c); and (B) to assist in applying new domestic content procurement preferences under section 70914; and (2) if necessary, amend subtitle A of title 2, Code of Federal Regulations (or successor regulations), to ensure that domestic content procurement preference requirements required by this part or other Federal law are imposed through the terms and conditions of awards of Federal financial assistance. (b) Standards for Construction Materials. (1) In general Nov. 15, 2021 (2) Considerations (A) ensure that the standards require that each manufacturing process required for the manufacture of the construction material and the inputs of the construction material occurs in the United States; and (B) take into consideration and seek to maximize the direct and indirect jobs benefited or created in the production of the construction material. SEC. 70916. TECHNICAL ASSISTANCE PARTNERSHIP AND CONSULTATION SUPPORTING DEPARTMENT OF TRANSPORTATION BUY AMERICA REQUIREMENTS. (a) Definitions (1) Buy america law (A) section 313 of title 23 (B) section 5323(j) of title 49 (C) section 22905(a) of title 49 (D) section 50101 of title 49 (E) any other domestic content procurement preference for an infrastructure project under the jurisdiction of the Secretary. (2) Secretary (b) Technical Assistance Partnership Nov. 15, 2021 (1) to ensure the development of a domestic supply base to support intermodal transportation in the United States, such as intercity high speed rail transportation, public transportation systems, highway construction or reconstruction, airport improvement projects, and other infrastructure projects under the jurisdiction of the Secretary; (2) to ensure compliance with Buy America laws that apply to a project that receives assistance from the Federal Highway Administration, the Federal Transit Administration, the Federal Railroad Administration, the Federal Aviation Administration, or another office or modal administration of the Secretary of Transportation; (3) to encourage technologies developed with the support of and resources from the Secretary to be transitioned into commercial market and applications; and (4) to establish procedures for consultation under subsection (c). (c) Consultation (d) Annual Report (1) a detailed description of the consultation procedures developed under subsection (b)(4); (2) a detailed description of each waiver requested under a Buy America law in the preceding year that was subject to consultation under subsection (c), and the results of the consultation; (3) a detailed description of each waiver granted under a Buy America law in the preceding year, including the type of waiver and the reasoning for granting the waiver; and (4) an update on challenges and gaps in the domestic supply base identified in carrying out subsection (b)(1), including a list of actions and policy changes the Secretary recommends be taken to address those challenges and gaps. SEC. 70917. APPLICATION. (a) In General (b) Savings Provision (c) Limitation With Respect to Aggregates (1) the term construction materials shall not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives; and (2) the standards developed under section 70915(b)(1) shall not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives as inputs of the construction material. PART IIMAKE IT IN AMERICA SEC. 70921. REGULATIONS RELATING TO BUY AMERICAN ACT. (a) In General Nov. 15, 2021  (1) Guidelines for Federal agencies to determine, for the purposes of applying sections 8302(a) and 8303(b)(3) of title 41, United States Code, the circumstances under which the acquisition of articles, materials, or supplies mined, produced, or manufactured in the United States is inconsistent with the public interest. (2) Guidelines to ensure Federal agencies base determinations of non-availability on appropriate considerations, including anticipated project delays and lack of substitutable articles, materials, and supplies mined, produced, or manufactured in the United States, when making determinations of non-availability under section 8302(a)(1) of title 41 (3) (A) Uniform procedures for each Federal agency to make publicly available, in an easily identifiable location on the website of the agency, and within the following time periods, the following information: (i) A written description of the circumstances in which the head of the agency may waive the requirements of the Buy American Act. (ii) Each waiver made by the head of the agency within 30 days after making such waiver, including a justification with sufficient detail to explain the basis for the waiver. (B) The procedures established under this paragraph shall ensure that the head of an agency, in consultation with the head of the Made in America Office established under section 70923(a), may limit the publication of classified information, trade secrets, or other information that could damage the United States. (4) Guidelines for Federal agencies to ensure that a project is not disaggregated for purposes of avoiding the applicability of the requirements under the Buy American Act. (5) An increase to the price preferences for domestic end products and domestic construction materials. (6) Amending the definitions of domestic end product and domestic construction material to ensure that iron and steel products are, to the greatest extent possible, made with domestic components. (b)  Guidelines Relating to Waivers. (1)  Inconsistency with public interest. (A)  In general With respect to the guidelines developed under subsection (a)(1), the Administrator shall seek to minimize waivers related to contract awards that (i) result in a decrease in employment in the United States, including employment among entities that manufacture the articles, materials, or supplies; or (ii) result in awarding a contract that would decrease domestic employment. (B)  Covered employment For purposes of subparagraph (A), employment refers to positions directly involved in the manufacture of articles, materials, or supplies, and does not include positions related to management, research and development, or engineering and design. (2)  Assessment on use of dumped or subsidized foreign products. (A)  In general To the extent otherwise permitted by law, before granting a waiver in the public interest to the guidelines developed under subsection (a)(1) with respect to a product sourced from a foreign country, a Federal agency shall assess whether a significant portion of the cost advantage of the product is the result of the use of dumped steel, iron, or manufactured goods or the use of injuriously subsidized steel, iron, or manufactured goods. (B)  Consultation The Federal agency conducting the assessment under subparagraph (A) shall consult with the International Trade Administration in making the assessment if the agency considers such consultation to be helpful. (C)  Use of findings The Federal agency conducting the assessment under subparagraph (A) shall integrate any findings from the assessment into its waiver determination. (c)  Sense of Congress on Increasing Domestic Content Requirements It is the sense of Congress that the Federal Acquisition Regulatory Council should amend the Federal Acquisition Regulation to increase the domestic content requirements for domestic end products and domestic construction material to 75 percent, or, in the event of no qualifying offers, 60 percent. (d)  Definition of End Product Manufactured in the United States Not later than 1 year after the date of the enactment of this Act [ Nov. 15, 2021 SEC. 70922. AMENDMENTS RELATING TO BUY AMERICAN ACT. (a)  Special Rules Relating to American Materials Required for Public Use  [Amended section 8302 of this title (b)  Production of Iron and Steel for Purposes of Contracts for Public Works  [Amended section 8303 of this title (c)  Annual Report  [Amended section 8302 of this title (d)  Definition  [Amended this section.] (e)  Conforming Amendments  [Amended sections 8302 and 8303 of this title.] (f)  Exclusion From Inflation Adjustment of Acquisition-Related Dollar Thresholds  [Amended section 1908 of this title SEC. 70923. MADE IN AMERICA OFFICE. (a)  Establishment The Director of the Office of Management and Budget shall establish within the Office of Management and Budget an office to be known as the Made in America Office. The head of the office shall be appointed by the Director of the Office of Management and Budget (in this section referred to as the Made in America Director). (b)  Duties The Made in America Director shall have the following duties: (1) Maximize and enforce compliance with domestic preference statutes. (2) Develop and implement procedures to review waiver requests or inapplicability requests related to domestic preference statutes. (3) Prepare the reports required under subsections (c) and (e). (4) Ensure that Federal contracting personnel, financial assistance personnel, and non-Federal recipients are regularly trained on obligations under the Buy American Act [this chapter] and other agency-specific domestic preference statutes. (5) Conduct the review of reciprocal defense agreements required under subsection (d). (6) Ensure that Federal agencies, Federal financial assistance recipients, and the Hollings Manufacturing Extension Partnership partner with each other to promote compliance with domestic preference statutes. (7) Support executive branch efforts to develop and sustain a domestic supply base to meet Federal procurement requirements. (c)  Office of Management and Budget Report Not later than 1 year after the date of the enactment of this Act [ Nov. 15, 2021 (1) A summary of total procurement funds expended on articles, materials, and supplies mined, produced, or manufactured (A) inside the United States; (B) outside the United States; and (C) outside the United States (i) under each category of waiver under the Buy American Act; (ii) under each category of exception under such chapter; and (iii) for each country that mined, produced, or manufactured such articles, materials, and supplies. (2) For each fiscal year covered by the report (A) the dollar value of any articles, materials, or supplies that were mined, produced, or manufactured outside the United States, in the aggregate and by country; (B) an itemized list of all waivers made under the Buy American Act with respect to articles, materials, or supplies, where available, and the country where such articles, materials, or supplies were mined, produced, or manufactured; (C) if any articles, materials, or supplies were acquired from entities that mine, produce, or manufacture such articles, materials, or supplies outside the United States due to an exception (that is not the micro-purchase threshold exception described under section 8302(a)(2)(C) of title 41 (D) if any articles, materials, or supplies were acquired from entities that mine, produce, or manufacture such articles, materials, or supplies outside the United States pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304 of title 41 (3) A description of the methods used by each Federal agency to calculate the percentage domestic content of articles, materials, and supplies mined, produced, or manufactured in the United States. (d)  Review of Reciprocal Defense Agreements. (1)  Review of process Not later than 180 days after the date of the enactment of this Act, the Made in America Director shall review the Department of Defenses use of reciprocal defense agreements to determine if domestic entities have equal and proportional access and report the findings of the review to the Director of the Office of Management and Budget, the Secretary of Defense, and the Secretary of State. (2)  Review of reciprocal procurement memoranda of understanding The Made in America Director shall review reciprocal procurement memoranda of understanding entered into after the date of the enactment of this Act between the Department of Defense and its counterparts in foreign governments to assess whether domestic entities will have equal and proportional access under the memoranda of understanding and report the findings of the review to the Director of the Office of Management and Budget, the Secretary of Defense, and the Secretary of State. (e)  Report on Use of Made in America Laws The Made in America Director shall submit to the relevant congressional committees a summary of each report on the use of Made in America Laws received by the Made in America Director pursuant to section 11 of Executive Order 14005, dated January 25, 2021 (f)  Domestic Preference Statute Defined In this section, the term domestic preference statute means any of the following: (1) the Buy American Act; (2) a Buy America law (as that term is defined in section 70916(a)); (3) the Berry Amendment [ 10 U.S.C. 4862 (4) section 604 of the American Recovery and Reinvestment Act of 2009 ( 6 U.S.C. 453b (5)  section 4863 of title 10 (6) laws requiring domestic preference for maritime transport, including the Merchant Marine Act, 1920 ( Public Law 66261 act June 5, 1920, ch. 250 section 101 of Title 46 (7) any other law, regulation, rule, or executive order relating to Federal financial assistance awards or Federal procurement, that requires, or provides a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, construction material, and manufactured goods offered in the United States. SEC. 70924. HOLLINGS MANUFACTURING EXTENSION PARTNERSHIP ACTIVITIES. (a)  Use of Hollings Manufacturing Extension Partnership to Refer New Businesses to Contracting Opportunities The head of each Federal agency shall work with the Director of the Hollings Manufacturing Extension Partnership, as necessary, to ensure businesses participating in this Partnership are aware of their contracting opportunities. (b)  Automatic Enrollment in GSA Advantage The Administrator of the General Services Administration and the Secretary of Commerce, acting through the Under Secretary of Commerce for Standards and Technology, shall jointly ensure that businesses that participate in the Hollings Manufacturing Extension Partnership, and so desire, are automatically enrolled in General Services Administration Advantage. SEC. 70925. UNITED STATES OBLIGATIONS UNDER INTERNATIONAL AGREEMENTS. This part, and the amendments made by this part, shall be applied in a manner consistent with United States obligations under international agreements. SEC. 70926. DEFINITIONS. In this part: (1)  Berry amendment The term Berry Amendment means section 4862 of title 10 (2)  Buy american act The term Buy American Act means chapter 83 of title 41, United States Code. (3)  Federal agency The term Federal agency has the meaning given the term executive agency in section 133 of title 41 (4)  Relevant congressional committees The term relevant congressional committees means (A) the Committee on Homeland Security and Governmental Affairs, the Committee on Commerce, Science, and Transportation, the Committee on Environment and Public Works, the Committee on Banking, Housing, and Urban Affairs, and the Committee on Armed Services of the Senate; and (B) the Committee on Oversight and Reform [now Committee on Oversight and Accountability], the Committee on Armed Services, and the Committee on Transportation and Infrastructure of the House of Representatives. (5)  Waiver The term waiver, with respect to the acquisition of an article, material, or supply for public use, means the inapplicability of chapter 83 of title 41, United States Code, to the acquisition by reason of any of the following determinations under section 8302(a)(1) or 8303(b) of such title: (A) A determination by the head of the Federal agency concerned that the acquisition is inconsistent with the public interest. (B) A determination by the head of the Federal agency concerned that the cost of the acquisition is unreasonable. (C) A determination by the head of the Federal agency concerned that the article, material, or supply is not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities of a satisfactory quality. SEC. 70927. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES. (a)  Specialty Metals Clause Reference Section 70923(f)(5) is amended by striking section 2533b and inserting section 4863. (b)  Berry Amendment Reference Section 70926(1) is amended by striking section 2533a and inserting section 4862. (c)  Effective Date The amendments made by this section shall take effect on January 1, 2022 Subtitle BBuyAmerican.gov SEC. 70931. SHORT TITLE. This subtitle may be cited as the BuyAmerican.gov Act of 2021. SEC. 70932. DEFINITIONS. In this subtitle: (1) Buy american law (A) chapter 83 of title 41, United States Code (commonly referred to as the Buy American Act); (B) section 5323(j) of title 49 (C) section 313 of title 23 (D) section 50101 of title 49 (E) section 24405 of title 49 (F) section 608 of the Federal Water Pollution Control Act ( 33 U.S.C. 1388 (G) section 1452(a)(4) of the Safe Drinking Water Act ( 42 U.S.C. 300j12(a)(4) (H) section 5035 of the Water Resources Reform and Development Act of 2014 ( 33 U.S.C. 3914 (I) section 4862 of title 10 (J) section 4863 of title 10 (2) Executive agency section 3502 of title 44 (3) Buy american waiver SEC. 70933. SENSE OF CONGRESS ON BUYING AMERICAN. It is the sense of Congress that (1) every executive agency should maximize, through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States and contracts for outsourced government service contracts to be performed by United States nationals; (2) every executive agency should scrupulously monitor, enforce, and comply with Buy American laws, to the extent they apply, and minimize the use of waivers; and (3) every executive agency should use available data to routinely audit its compliance with Buy American laws. SEC. 70934. ASSESSMENT OF IMPACT OF FREE TRADE AGREEMENTS. Not later than 150 days after the date of the enactment of this Act [ Nov. 15, 2021 SEC. 70935. JUDICIOUS USE OF WAIVERS. (a) In General (b) Public Interest Waiver Determinations SEC. 70936. ESTABLISHMENT OF BUYAMERICAN.GOV WEBSITE. (a) In General Nov. 15, 2021 (b) Utilization of Existing Website SEC. 70937. WAIVER TRANSPARENCY AND STREAMLINING FOR CONTRACTS. (a) Collection of Information (b) Waiver Transparency and Streamlining. (1) Requirement (2) Exception (c) Information Available to the Executive Agency Concerning the Request. (1) Requirement (A) information about the waiver was not made available on the website under section 70936; or (B) no opportunity for public comment concerning the request was granted. (2) Scope (A) a detailed justification for the use of goods, products, or materials mined, produced, or manufactured outside the United States; (B) for requests citing unreasonable cost as the statutory basis of the waiver, a comparison of the cost of the domestic product to the cost of the foreign product or a comparison of the overall cost of the project with domestic products to the overall cost of the project with foreign-origin products or services, pursuant to the requirements of the applicable Buy American law, except that publicly available cost comparison data may be provided in lieu of proprietary pricing information; (C) for requests citing the public interest as the statutory basis for the waiver, a detailed written statement, which shall include all appropriate factors, such as potential obligations under international agreements, justifying why the requested waiver is in the public interest; and (D) a certification that the procurement official or assistance recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and nonproprietary communications with the prime contractor. (d) Nonavailability Waivers. (1) In general (2) Exception SEC. 70938. COMPTROLLER GENERAL REPORT. Not later than two years after the date of the enactment of this Act [ Nov. 15, 2021 SEC. 70939. RULES OF CONSTRUCTION. (a) Disclosure Requirements (b) Establishment of Successor Information Systems SEC. 70940. CONSISTENCY WITH INTERNATIONAL AGREEMENTS. This subtitle shall be applied in a manner consistent with United States obligations under international agreements. SEC. 70941. PROSPECTIVE AMENDMENTS TO INTERNAL CROSS-REFERENCES. (a) In General (1) in subparagraph (I), by striking section 2533a and inserting section 4862; and (2) in subparagraph (J), by striking section 2533b and inserting section 4863. (b) Effective Date January 1, 2022 Subtitle CMake PPE in America SEC. 70951. SHORT TITLE. This subtitle may be cited as the Make PPE in America Act. SEC. 70952. FINDINGS. Congress makes the following findings: (1) The COVID19 pandemic has exposed the vulnerability of the United States supply chains for, and lack of domestic production of, personal protective equipment (PPE). (2) The United States requires a robust, secure, and wholly domestic PPE supply chain to safeguard public health and national security. (3) Issuing a strategy that provides the governments anticipated needs over the next three years will enable suppliers to assess what changes, if any, are needed in their manufacturing capacity to meet expected demands. (4) In order to foster a domestic PPE supply chain, United States industry needs a strong and consistent demand signal from the Federal Government providing the necessary certainty to expand production capacity investment in the United States. (5) In order to effectively incentivize investment in the United States and the re-shoring of manufacturing, long-term contracts must be no shorter than three years in duration. (6) To accomplish this aim, the United States should seek to ensure compliance with its international obligations, such as its commitments under the World Trade Organizations Agreement on Government Procurement and its free trade agreements, including by invoking any relevant exceptions to those agreements, especially those related to national security and public health. (7) The United States needs a long-term investment strategy for the domestic production of PPE items critical to the United States national response to a public health crisis, including the COVID19 pandemic. SEC. 70953. REQUIREMENT OF LONG-TERM CONTRACTS FOR DOMESTICALLY MANUFACTURED PERSONAL PROTECTIVE EQUIPMENT. (a) Definitions (1) Appropriate congressional committees (A) the Committee on Homeland Security and Governmental Affairs, the Committee on Health, Education, Labor, and Pensions, the Committee on Finance, and the Committee on Veterans Affairs of the Senate; and (B) the Committee on Homeland Security, the Committee on Oversight and Reform [now Committee on Oversight and Accountability], the Committee on Energy and Commerce, the Committee on Ways and Means, and the Committee on Veterans Affairs of the House of Representatives. (2) Covered secretary (3) Personal protective equipment (4) United states (b) Contract Requirements for Domestic Production Nov. 15, 2021 (1) be issued for a duration of at least 2 years, plus all option periods necessary, to incentivize investment in the production of personal protective equipment and the materials and components thereof in the United States; and (2) be for personal protective equipment, including the materials and components thereof, that is grown, reprocessed, reused, or produced in the United States. (c) Alternatives to Domestic Production (1) maximizes sources for personal protective equipment that is assembled outside the United States containing only materials and components that are grown, reprocessed, reused, or produced in the United States; and (2) certifies every 120 days that it is necessary to procure personal protective equipment under alternative procedures to respond to the immediate needs of a public health emergency. (d) Availability Exception. (1) In general (A) that is, or that includes, a material listed in section 25.104 of the Federal Acquisition Regulation as one for which a non-availability determination has been made; or (B) as to which the covered Secretary determines that a sufficient quantity of a satisfactory quality that is grown, reprocessed, reused, or produced in the United States cannot be procured as, and when, needed at United States market prices. (2) Certification requirement (e) Report. (1) In general (2) Elements (A) The United States long-term domestic procurement strategy for PPE produced in the United States, including strategies to incentivize investment in and maintain United States supply chains for all PPE sufficient to meet the needs of the United States during a public health emergency. (B) An estimate of long-term demand quantities for all PPE items procured by the United States. (C) Recommendations for congressional action required to implement the United States Governments procurement strategy. (D) A determination whether all notifications, amendments, and other necessary actions have been completed to bring the United States existing international obligations into conformity with the statutory requirements of this subtitle. (f) Authorization of Transfer of Equipment. (1) In general 42 U.S.C. 247d6b (2) Transfer of equipment during a public health emergency. (A) Amendment section 321r of Title 6 (3) Strategic national stockpile section 247d6b of Title 42 (g) Compliance With International Agreements Implementation of Buy American Act With Respect to Certain Water Resource Projects Pub. L. 100371, title V,  508 July 19, 1988 102 Stat. 875  (a)  General Rule For purposes of title III of the Act of March 3, 1933 47 Stat. 1520 41 U.S.C. 10a10c 41 U.S.C. 8301 (b)  Applicability Subsection (a) shall only apply to contracts entered into after the date of the enactment of this Act [ July 19, 1988 Executive Documents  Executive Order No. 13788 Ex. Ord. No. 13788, Apr. 18, 2017 Jan. 31, 2019 Jan. 25, 2021  Ex. Ord. No. 13858. Strengthening Buy-American Preferences for Infrastructure Projects Ex. Ord. No. 13858, Jan. 31, 2019 Jan. 25, 2021 By the authority vested in me as President by the Constitution and the laws of the United States of America, and to strengthen Buy-American principles in Federal financial assistance programs, it is hereby ordered as follows: Section Policy April 18, 2017 Sec Definitions (a) Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. (b) Federal financial assistance shall have the meaning and shall be interpreted consistent with the definition provided by the Office of Management and Budgets Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, found at section 200.40 of title 2, Code of Federal Regulations. (c) Manufactured products means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber. (d) Infrastructure project means a project to develop public or private physical assets that are designed to provide or support services to the general public in the following sectors: surface transportation, including roadways, bridges, railroads, and transit; aviation; ports, including navigational channels; water resources projects; energy production, generation, and storage, including from fossil-fuels, renewable, nuclear, and hydroelectric sources; electricity transmission; gas, oil, and propane storage and transmission; electric, oil, natural gas, and propane distribution systems; broadband internet; pipelines; stormwater and sewer infrastructure; drinking water infrastructure; cybersecurity; and any other sector designated through a notice published in the Federal Register by the Federal Permitting Improvement Steering Council. (e) Covered program means any program for which a focus of the statutory authorities under which it is administered is the award of Federal financial assistance for the alteration, construction, conversion, demolition, extension, improvement, maintenance, reconstruction, rehabilitation, or repair of an infrastructure project in the United States, except that this term shall not include: (i) programs for which providing a domestic preference is inconsistent with law; or (ii) programs providing Federal financial assistance that are subject to comparable domestic preferences. (f) Domestic Preference means a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States, including iron and aluminum as well as steel, cement, and other manufactured products. Sec Application of Buy-American Principles to Covered Programs Jan. 31, 2019 (b) The head of each agency administering a covered program shall include in the report required by section 4 of this order a detailed explanation of the strategy, plan, or program developed to satisfy the requirement of subsection (a) of this section. Sec Identification of Opportunities to Maximize the Use of Buy-American Principles Sec Jan. 25, 2021 Sec General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals; or (iii) existing rights or obligations under international agreements. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  Ex. Ord. No. 13881. Maximizing Use of American-Made Goods, Products, and Materials Ex. Ord. No. 13881, July 15, 2019 By the authority vested in me as President by the Constitution and the laws of the United States of America, and to promote the principles underlying the Buy American Act of 1933 ( 41 U.S.C. 8301830 Section Policy April 18, 2017 January 31, 2019 (b) In Executive Order 10582 of December 17, 1954 41 U.S.C. 8303 (c) The policies described in section 1(b) of this order were adopted by the Federal Acquisition Regulatory Council (FAR Council) in the Federal Acquisition Regulation (FAR), title 48, Code of Federal Regulations. The FAR should be reviewed and revised, as appropriate, to most effectively carry out the goals of the Buy American Act and my Administrations policy of enforcing the Buy American Act to its maximum lawful extent. I therefore direct the members of the FAR Council to consider measures that may better effectuate this policy. Sec Proposed Rules July 15, 2019 (i) an amendment to the applicable provisions in the FAR that would provide that materials shall be considered to be of foreign origin if: (A) for iron and steel end products, the cost of foreign iron and steel used in such iron and steel end products constitutes 5 percent or more of the cost of all the products used in such iron and steel end products; or (B) for all other end products, the cost of the foreign products used in such end products constitutes 45 percent or more of the cost of all the products used in such end products; and (ii) an amendment to the applicable provisions in the FAR that would provide that the executive agency concerned shall in each instance conduct the reasonableness and public interest determination referred to in sections 8302 and 8303 of title 41, United States Code, on the basis of the following-described differential formula, subject to the terms thereof: the sum determined by computing 20 percent (for other than small businesses), or 30 percent (for small businesses), of the offer or offered price of materials of foreign origin. (b) The FAR Council shall consider and evaluate public comments on any regulations proposed pursuant to section 2(a) of this order and shall promptly issue a final rule, if appropriate and consistent with applicable law and the national security interests of the United States. The head of each executive agency shall issue such regulations as may be necessary to ensure that agency procurement practices conform to the provisions of any final rule issued pursuant to this order. Sec Effect on Executive Order 10582 Sec Additional Actions Sec General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof, including, for example, the authority to utilize non-availability and public interest exceptions as delineated in section 8303 of title 41 (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  Donald J. Trump. [Ex. Ord. No. 13881, set out above, superseded to the extent it is inconsistent with Ex. Ord. No. 14005, see section 14(b) of Ex. Ord. No. 14005, Jan. 25, 2021  Ex. Ord. No. 14005. Ensuring the Future Is Made in All of America by All of Americas Workers Ex. Ord. No. 14005, Jan. 25, 2021 By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section Policy Sec. Definitions section 3502(1) of title 44 section 3502(5) of title 44 (b) Made in America Laws means all statutes, regulations, rules, and Executive Orders relating to Federal financial assistance awards or Federal procurement, including those that refer to Buy America or Buy American, that require, or provide a preference for, the purchase or acquisition of goods, products, or materials produced in the United States, including iron, steel, and manufactured goods offered in the United States. Made in America Laws include laws requiring domestic preference for maritime transport, including the Merchant Marine Act of 1920 ( Public Law 66261 41 Stat. 988 (c) Waiver means an exception from or waiver of Made in America Laws, or the procedures and conditions used by an agency in granting an exception from or waiver of Made in America Laws. Sec. Review of Agency Action Inconsistent with Administration Policy 5 U.S.C. 551 (b) The head of each agency shall, as soon as practicable and as appropriate and consistent with applicable law, including the Administrative Procedure Act, consider proposing any additional agency actions necessary to enforce the policy set forth in section 1 of this order. Sec. Updating and Centralizing the Made in America Waiver Process (b) Before an agency grants a waiver, and unless the OMB Director provides otherwise, the agency (granting agency) shall provide the Made in America Director with a description of its proposed waiver and a detailed justification for the use of goods, products, or materials that have not been mined, produced, or manufactured in the United States. (i) Within 45 days of the date of the appointment of the Made in America Director, and as appropriate thereafter, the Director of OMB, through the Made in America Director, shall: (1) publish a list of the information that granting agencies shall include when submitting such descriptions of proposed waivers and justifications to the Made in America Director; and (2) publish a deadline, not to exceed 15 business days, by which the Director of OMB, through the Made in America Director, either will notify the head of the agency that the Director of OMB, through the Made in America Director, has waived each review described in subsection (c) of this section or will notify the head of the agency in writing of the result of the review. (ii) To the extent permitted by law and consistent with national security and executive branch confidentiality interests, descriptions of proposed waivers and justifications submitted to the Made in America Director by granting agencies shall be made publicly available on the website established pursuant to section 6 of this order. (c) The Director of OMB, through the Made in America Director, shall review each proposed waiver submitted pursuant to subsection (b) of this section, except where such review has been waived as described in subsection (b)(i)(2) of this section. (i) If the Director of OMB, through the Made in America Director, determines that issuing the proposed waiver would be consistent with applicable law and the policy set forth in section 1 of this order, the Director of OMB, through the Made in America Director, shall notify the granting agency of that determination in writing. (ii) If the Director of OMB, through the Made in America Director, determines that issuing the proposed waiver would not be consistent with applicable law or the policy set forth in section 1 of this order, the Director of OMB, through the Made in America Director, shall notify the granting agency of the determination and shall return the proposed waiver to the head of the agency for further consideration, providing the granting agency with a written explanation for the determination. (1) If the head of the agency disagrees with some or all of the bases for the determination and return, the head of the agency shall so inform the Made in America Director in writing. (2) To the extent permitted by law, disagreements or conflicts between the Made in America Director and the head of any agency shall be resolved in accordance with procedures that parallel those set forth in section 7 of Executive Order 12866 of September 30, 1993 5 U.S.C. 601 (d) When a granting agency is obligated by law to act more quickly than the review procedures established in this section allow, the head of the agency shall notify the Made in America Director as soon as possible and, to the extent practicable, comply with the requirements set forth in this section. Nothing in this section shall be construed as displacing agencies authorities or responsibilities under law. Sec. Accounting for Sources of Cost Advantage Sec. Promoting Transparency in Federal Procurement (b) The Director of OMB, through the Made in America Director, shall promptly report to the Administrator of General Services all proposed waivers, along with the associated descriptions and justifications discussed in section 4(b) of this order, and whether those waivers have been granted. Not later than 5 days after receiving this information, the Administrator of General Services shall, to the extent permitted by law and consistent with national security and executive branch confidentiality interests, make this information available to the public by posting it on the website established under this section. Sec. Supplier Scouting Public Law 114329 15 U.S.C. 278k Sec. Promoting Enforcement of the Buy American Act of 1933 Jan. 25, 2021 (i) replace the component test in Part 25 of the FAR that is used to identify domestic end products and domestic construction materials with a test under which domestic content is measured by the value that is added to the product through U.S.-based production or U.S. job-supporting economic activity; (ii) increase the numerical threshold for domestic content requirements for end products and construction materials; and (iii) increase the price preferences for domestic end products and domestic construction materials. (b) The FAR Council shall consider and evaluate public comments on any regulations proposed pursuant to subsection (a) of this section and shall promptly issue a final rule, if appropriate and consistent with applicable law and the national security interests of the United States. Sec. Updates to the List of Nonavailable Articles Sec. Report on Information Technology That Is a Commercial Item Sec. Report on Use of Made in America Laws (a) the agencys implementation of, and compliance with, Made in America Laws; (b) the agencys ongoing use of any longstanding or nationwide waivers of any Made in America Laws, with a written description of the consistency of such waivers with the policy set forth in section 1 of this order; and (c) recommendations for how to further effectuate the policy set forth in section 1 of this order. Sec. Bi-Annual Report on Made in America Laws (a) the agencys ongoing implementation of, and compliance with, Made in America Laws; (b) the agencys analysis of goods, products, materials, and services not subject to Made in America Laws or where requirements of the Made in America Laws have been waived; (c) the agencys analysis of spending as a result of waivers issued pursuant to [section 301 of] the Trade Agreements Act of 1979, as amended, 19 U.S.C. 2511 (d) recommendations for how to further effectuate the policy set forth in section 1 of this order. Sec. Ensuring Implementation of Administration Policy on Federal Government Property Sec. Revocation of Certain Presidential and Regulatory Actions April 18, 2017 January 31, 2019 January 14, 2021 39 U.S.C. 401 (b) Executive Order 10582 of December 17, 1954 41 U.S.C. 8303 July 15, 2019 Sec. Severability Sec. General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  J.R. Biden, Jr.  Ex. Ord. No. 14104. Federal Research and Development in Support of Domestic Manufacturing and United States Jobs Ex. Ord. No. 14104, July 28, 2023 By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section Policy My Administration has prioritized support for our unique innovation ecosystem by reinvesting across sectors in research and development (R&D), demonstrations, education, and the necessary infrastructure to accelerate the transition of discoveries quickly from the lab to the marketplace. This investment is designed to produce cutting-edge technologies that support the competitiveness, domestic manufacturing capacity, and well-being of the United States economy; United States workers; our communities; and our national security. Ensuring the commercialization of federally funded inventions by United States manufacturerswhile maintaining intellectual property rightswill build on the successful legacy of the United States in spurring economic growth and enhancing United States competitiveness through R&D. It will also further our joint R&D work with partners and allies to strengthen the resilience of global critical supply chains and secure Americas leadership in delivering a net-zero emissions economy by no later than 2050. Therefore, it is the policy of my Administration that when new technologies and products are developed with support from the United States Government, they will be manufactured in the United States whenever feasible and consistent with applicable law. Sec. Coordination and Consultation February 4, 2021 (b) In implementing this order, the heads of executive departments and agencies (agencies) shall, as appropriate and consistent with applicable law, consult outside stakeholderssuch as those in industry; academia, including Historically Black Colleges and Universities, Tribal Colleges and Universities, and other Minority Serving Institutions; non-governmental organizations; communities; labor unions; and State, local, Tribal, and territorial governmentsin order to implement the policy identified in section 1 of this order. Sec. Strengthening Domestic Manufacturing (b) The Director of OSTP, working through the National Science and Technology Council (NSTC) and in coordination with the Director of the Office of Management and Budgets Made in America Office (Made in America Director) and the heads of agencies identified in subsection (a) of this section, shall seek to add domestic manufacturing to future interagency technology R&D roadmaps, as appropriate. The Director of OSTP shall endeavor to standardize the format of domestic manufacturing considerations in technology R&D roadmaps to ensure that industry, the research community, and agencies create the conditions for new technologies to be produced in the United States once they are commercialized. (c) In collaboration with the Administrator of the Small Business Administration (SBA), the heads of agencies participating in the Small Business Innovation Research and Small Business Technology Transfer programs are encouraged to advance a coordinated interagency approach to innovation and research solicitations with the goals of reducing barriers to program participation, streamlining access to funding opportunities, and encouraging production of new technologies in the United States. The heads of these agencies are further encouraged to collaborate with the SBA to support small businesses transitioning technologies from intramural and extramural labs to commercial markets. (d) The heads of agencies that have statutory Other Transaction Authority, or that can use other business arrangements authorized by the Congress, are encouraged, when appropriate, to consider using these authorities to purchase or invest in leading-edge technologies to support their production in the United States. If these agencies use these authorities to purchase or invest in the development of new technologies, the terms of these purchases and investments should ensure that the product is substantially manufactured in the United States, as appropriate and consistent with applicable law. (e) To further support the commercialization and production in the United States of technologies developed, in part, through federally funded R&D, the heads of agencies identified in subsection (a) of this section are encouraged to establish or enhance the technology transfer and commercialization capabilities of their agencies. Sec. Modernizing Reporting of Invention Utilization 35 U.S.C. 201(e) (b) To incentivize domestic manufacturing through the reporting of invention disclosures and the utilization of those inventions, the heads of agencies identified in section 3(a) of this order shall require recipients of Federal R&D funding agreements to track and update the awarding agency on the location in which subject inventions are manufactured. (c) The heads of agencies identified in section 3(a) of this order should require recipients of Federal R&D funding agreements to report annually to the awarding agency the names of licensees and manufacturing locations of the applicable subject inventions. (d) Within 60 days of the date of this order [ July 28, 2023 35 U.S.C. 202(c)(5) (e) The Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, shall consider developing an action plan, including resource requirements, to transition all agencies identified in section 3(a) of this order to the iEdison reporting system to track unclassified subject inventions, patents, and related utilization reports by calendar year 2025. The Secretary of Commerce shall submit the action plan to the Director of OMB within 1 year of the date of this order. (f) Not later than 120 days after issuance of any final regulations implementing the action plan described in subsection (e) of this section, the heads of agencies identified in section 3(a) of this order shall report to the Director of OMB and the Director of OSTP on steps their respective agencies have taken to transition all unclassified reporting to iEdison by the end of calendar year 2025. These reports may include resource needs and timelines for implementation. (g) Within 180 days of the date of this order, the Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, should develop common invention utilization questions (utilization questions), allowing agencies to add agency-specific questions. (i) The utilization questions should be used by all agencies by May 1, 2024 (ii) The utilization questions should require information on the locations where subject inventions are produced or are used to produce a product. (iii) The Secretary of Commerce, through the Director of NIST, and the heads of other agencies should aim to minimize the reporting burden on recipients of Federal R&D funding agreements associated with the utilization questions, in accordance with the Paperwork Reduction Act ( 44 U.S.C. 3501 (h) Within 2 years after the date of this order and annually thereafter, the heads of agencies identified in section 3(a) of this order shall submit reports to the Made in America Director on the utilization of inventions that were developed through their previous R&D funding agreements and reported after the date of this order, including where products embodying a subject invention or produced through the use of a subject invention were manufactured. Sec. Securing Critical and Emerging Technologies Through Domestic Manufacturing 35 U.S.C. 200 35 U.S.C. 202(a) 35 U.S.C. 202(a) (i) consider measures for technologies important to the United States economy and national security, including critical and emerging technologies such as energy storage, quantum information science, artificial intelligence and machine learning, semiconductors and microelectronics, and advanced manufacturing; and (ii) consider narrowly tailoring terms related to enhanced United States manufacturing while encouraging technology transfer and commercialization, and allowing small businesses and nonprofit organizations to retain ownership of and commercialize their federally funded subject inventions. (b) The heads of agencies identified in section 3(a) of this order shall consider whether other measures are needed to promote domestic manufacturing of subject inventions funded by their respective agencies. Sec. Implementation of this Order (b) Each report shall include, to the extent possible, a review of this orders effectiveness in using the R&D funding agreements of the agencies identified in section 3(a) of this order to support domestic manufacturing, United States industrial competitiveness, and job creation. (c) Each report shall include, to the extent possible, identification of any challenges to implementation of this order or to the effectiveness of this order in accomplishing the policy goals described in section 1 of this order, as well as recommendations to address such challenges. Sec. Improving the Waiver Process 35 U.S.C. 204 (b) Every agency should consider developing a process by which the agency may waive the domestic manufacturing requirements for agency-funded technology or technology developed under an agency funding opportunity without a request from a recipient of a Federal R&D funding agreement. As part of its process, an agency should seek concurrence from the Made in America Director to waive the domestic manufacturing requirements, and should set forth specific factors that may support a waiver, including whether the manufacture of the technology outside the United States is in the economic or national security interest of the United States. (c) The heads of agencies identified in section 3(a) of this order shall ensure that the waiver process for their agency is rigorous, timely, transparent, and consistent, with due regard for all applicable authorities, including Executive Order 14005 of January 25, 2021 (d) The Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, the NSTC Lab-to-Market Subcommittee, and the Made in America Director, shall provide guidance to agencies on the factors and considerations that should be weighed in determining whether domestic manufacturing is not commercially feasible. Guidance shall be designed to help applicants understand the factors an agency will consider when evaluating a waiver application, and should ensure that a determination of the commercial feasibility of manufacturing abroad is not based on substandard or unacceptable working conditions. Within 90 days of the date of this order, the Secretary of Commerce, through the Director of NIST, shall make the guidance available for public comment. (e) Within 90 days of the date of this order, the Secretary of Commerce, through the Director of NIST and in consultation with the Interagency Working Group for Bayh-Dole, shall develop common waiver application questions for use by all agencies. (i) The common waiver application questions should include as relevant criteria, as appropriate and consistent with applicable law: (A) how the waiver will be used; (B) why it is important that the subject invention be brought to market; (C) any potential economic and national security impacts of manufacturing the subject invention abroad; (D) the benefits that will accrue to domestic manufacturing and United States jobs as a result of the subject invention being brought to market; (E) whether the applicant is proposing an exclusive or non-exclusive license; and (F) the conditions under which the subject invention would be manufactured abroad, including unionization of workplaces, health and safety standards, labor and wage laws, and environmental impacts. (ii) Given the need to maintain agency flexibility, the heads of agencies identified in section 3(a) of this order may add questions to the common waiver application questions, but they should do so sparingly and only as needed to accomplish the policy set forth in this order within their respective agencies existing authorities. (f) The heads of agencies identified in section 3(a) of this order shall adopt the common waiver application questions, to the extent consistent with applicable law. (g) The heads of agencies identified in section 3(a) of this order should acknowledge receipt of waiver applications within 10 business days, to the extent practicable. Once an applicant submits a waiver request application, the reviewing agency should seek to finalize its decision, including negotiations with the applicant as needed, as soon as possible. (h) Within 270 days of the date of this order, the heads of agencies identified in section 3(a) of this order shall establish agency guidelines for negotiating with waiver applicants to retain as much value or benefit to the United States as possible, as appropriate and consistent with applicable law, while considering technical, business, social, environmental, and economic realities. In assessing a waivers value to the United States economy, the heads of agencies identified in section 3(a) of this order should consider, as appropriate and in addition to any other relevant factors, potential benefits to domestic manufacturing competitiveness, to United States job creation, and to United States economic and national security. (i) The heads of agencies identified in section 3(a) of this order should consider limiting waivers to applicants that commit to manufacture in locations that maintain a market economy and for specific agreed-upon purposes. (ii) The heads of agencies identified in section 3(a) of this order should expect waiver applicants to deliver alternative benefits to the United States as part of an agreement to grant the waiver. Consideration of alternative benefits may include direct or indirect investment in domestic plants and equipment, the creation of high-quality domestic jobs, or further domestic development of the subject invention. (i) Beginning in fiscal year 2024 and on an annual basis thereafter, the heads of agencies identified in section 3(a) of this order shall provide to the Secretary of Commerce, through the Interagency Working Group for Bayh-Dole, a summary of each waiver application received, approved, and rejected. The summary shall include the terms of any approved waiver and the processing time needed to reach a decision. (i) The Secretary of Commerce, through the Interagency Working Group for Bayh-Dole, shall publish a periodic summary of the waiver applications in aggregate that describes common reasons for waiver requests, processing times by agency, and recommended policy responses to common challenges. (ii) Agencies shall ensure that the information submitted for publication to the Secretary of Commerce, through the Interagency Working Group for Bayh-Dole, appropriately protects business confidential and sensitive information provided by waiver applicants as part of their justification for the waiver, consistent with 35 U.S.C. 202(c)(5) Sec. General Provisions (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.  J.R. Biden, Jr.  8302. American materials required for public use (a)  In General. (1)  Allowable materials Only unmanufactured articles, materials, and supplies that have been mined or produced in the United States, and only manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States, shall be acquired for public use unless the head of the Federal agency concerned determines their acquisition to be inconsistent with the public interest, their cost to be unreasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. (2)  Exceptions This section does not apply (A) to articles, materials, or supplies for use outside the United States; (B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304 of this title (C) to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title (b)  Reports. (1)  In general Not later than 180 days after the end of the fiscal year during which the Build America, Buy America Act is enacted, and annually thereafter for 4 years, the Director of the Office of Management and Budget, in consultation with the Administrator of General Services, shall submit to the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Oversight and Reform of the House of Representatives a report on the total amount of acquisitions made by Federal agencies in the relevant fiscal year of articles, materials, or supplies acquired from entities that mine, produce, or manufacture the articles, materials, or supplies outside the United States. (2)  Exception for intelligence community This subsection does not apply to acquisitions made by an agency, or component of an agency, that is an element of the intelligence community as specified in, or designated under, section 3 of the National Security Act of 1947 ( 50 U.S.C. 3003 (c)  Special Rules The following rules apply in carrying out the provisions of subsection (a): (1)  Iron and steel manufactured in the united states For purposes of this section, manufactured articles, materials, and supplies of iron and steel are deemed manufactured in the United States only if all manufacturing processes involved in the production of such iron and steel, from the initial melting stage through the application of coatings, occurs in the United States. (2)  Limitation on exception for commercially available off-the-shelf items Notwithstanding any law or regulation to the contrary, including section 1907 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3831 Pub. L. 11758, div. G, title IX,  70922(a) Nov. 15, 2021 135 Stat. 1303        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8302 41:10a. Mar. 3, 1933, ch. 212 47 Stat. 1520 Pub. L. 100418, title VII,  7005(b) Aug. 23, 1988 102 Stat. 1553 Pub. L. 103355, title IV,  4301(b) Oct. 13, 1994 108 Stat. 3347 Pub. L. 11028 May 25, 2007 121 Stat. 211 In subsection (a), the words Notwithstanding any other provision of law are omitted as unnecessary. In subsection (b)(1), reference to fiscal years 2007 and 2008 is omitted as obsolete. Editorial Notes  References in Text The Build America, Buy America Act, referred to in subsec. (b)(1), is Pub. L. 11758, div. G Nov. 15, 2021 135 Stat. 1294 section 8301 of this title Amendments 2021Subsec. (a)(1). Pub. L. 11758,  70922(e)(1)(A) Subsec. (a)(2)(B). Pub. L. 11758,  70922(e)(1)(B) Subsec. (b). Pub. L. 11758,  70922(c) Subsec. (c). Pub. L. 11758,  70922(a) Statutory Notes and Related Subsidiaries  Change of Name Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023  8303. Contracts for public works (a)  In General Every contract for the construction, alteration, or repair of any public building or public work in the United States shall contain a provision that in the performance of the work the contractor, subcontractors, material men, or suppliers shall use only (1) unmanufactured articles, materials, and supplies that have been mined or produced in the United States; and (2) manufactured articles, materials, and supplies that have been manufactured in the United States substantially all from articles, materials, or supplies mined, produced, or manufactured in the United States. (b)  Exceptions. (1)  In general This section does not apply (A) to articles, materials, or supplies for use outside the United States; (B) to any articles, materials, or supplies procured pursuant to a reciprocal defense procurement memorandum of understanding (as described in section 8304), or a trade agreement or least developed country designation described in subpart 25.400 of the Federal Acquisition Regulation; and (C) to manufactured articles, materials, or supplies procured under any contract with an award value that is not more than the micro-purchase threshold under section 1902 of this title (2)  Particular article, material, or supply If the head of the Federal agency making the contract finds that it is impracticable to comply with subsection (a) for a particular article, material, or supply or that it would unreasonably increase the cost, an exception shall be noted in the specifications for that article, material, or supply and a public record of the findings that justified the exception shall be made. (3)  Waiver authority Subsection (a) shall be regarded as requiring the purchase, for public use within the United States, of articles, materials, or supplies manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality, unless the head of the Federal agency concerned determines their acquisition to be inconsistent with the public interest, their cost to be unreasonable, or that the articles, materials, or supplies of the class or kind to be used, or the articles, materials, or supplies from which they are manufactured, are not mined, produced, or manufactured in the United States in sufficient and reasonably available commercial quantities and of a satisfactory quality. (c)  Special Rules. (1)  Production of iron and steel For purposes of this section, manufactured articles, materials, and supplies of iron and steel are deemed manufactured in the United States only if all manufacturing processes involved in the production of such iron and steel, from the initial melting stage through the application of coatings, occurs in the United States. (2)  Limitation on exception for commercially available off-the-shelf items Notwithstanding any law or regulation to the contrary, including section 1907 of this title (d)  Results of Failure To Comply If the head of a Federal agency that has made a contract containing the provision required by subsection (a) finds that there has been a failure to comply with the provision in the performance of the contract, the head of the Federal agency shall make the findings public. The findings shall include the name of the contractor obligated under the contract. The contractor, and any subcontractor, material man, or supplier associated or affiliated with the contractor, shall not be awarded another contract for the construction, alteration, or repair of any public building or public work for 3 years after the findings are made public. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3832 Pub. L. 11758, div. G, title IX,  70922(b) Nov. 15, 2021 135 Stat. 1303        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8303(a) 41:10b(a) (words before except as provided). Mar. 3, 1933, ch. 212 47 Stat. 1520 Pub. L. 100418, title VII,  7005(c) Aug. 23, 1988 102 Stat. 1553 8303(b)(1) 41:10b(a) (except as provided in section 10a of this title 8303(b)(2) 41:10b(a) (proviso). 8303(b)(3) 41:10d. Oct. 29, 1949, ch. 787 63 Stat. 1024 Pub. L. 100418, title VII,  7005(d) Aug. 23, 1988 102 Stat. 1553 8303(c) 41:10b(b). In subsection (a), before paragraph (1), the words growing out of an appropriation heretofore made or hereafter to be made are omitted as unnecessary. Subsection (b)(1) is substituted for except as provided in section 10a of this title In subsection (b)(3), the words In order to clarify the original intent of Congress, hereafter, section 10a of this title In subsection (c), the words in the United States or elsewhere are omitted as unnecessary. Editorial Notes Amendments 2021Subsec. (b)(1)(B). Pub. L. 11758,  70922(e)(2)(A)(ii) Subsec. (b)(2). Pub. L. 11758,  70922(e)(2)(A)(i) Subsec. (b)(3). Pub. L. 11758,  70922(e)(2)(A)(i) Subsec. (c). Pub. L. 11758,  70922(b)(2) Subsec. (d). Pub. L. 11758,  70922(b)(1) Executive Documents  Ex. Ord. No. 10582. Uniform Procedures for Determinations Ex. Ord. No. 10582, Dec. 17, 1954 Sept. 27, 1962 July 20, 1979 Sept. 9, 1987 July 15, 2019 Section Sec (b) For the purposes of the said act of March 3, 1933 act Mar. 3, 1933, ch. 212, title III 47 Stat. 1520 41 U.S.C. 8301 (c) The executive agency concerned shall in each instance determine the amount of the differential referred to in subsection (b) of this section on the basis of one of the following-described formulas, subject to the terms thereof: (1) The sum determined by computing six per centum of the bid or offered price of materials of foreign origin. (2) The sum determined by computing ten per centum of the bid or offered price of materials of foreign origin exclusive of applicable duty and all costs incurred after arrival in the United States: provided that when the bid or offered price of materials of foreign origin amounts to less than $25,000, the sum shall be determined by computing ten per centum of such price exclusive only of applicable duty. Sec (a) To reject any bid or offer for reasons of the national interest not described or referred to in this order; or (b) To place a fair proportion of the total purchases with small business concerns in accordance with section 302(b) of the Federal Property and Administrative Services Act of 1949, as amended [former 41 U.S.C. 252(b) 41 U.S.C. 3104 (c) To reject a bid or offer to furnish material of foreign origin in any situation in which the domestic supplier offering the lowest price for furnishing the desired materials undertakes to produce substantially all of such materials in areas of substantial unemployment, as determined by the Secretary of Labor in accordance with such appropriate regulations as he may establish and during such period as the President may determine that it is in the national interest to provide to such areas preference in the award of Government contracts: Provided (d) To reject any bid or offer for materials of foreign origin if such rejection is necessary to protect essential national-security interests after receiving advice with respect thereto from the President or from the Director [now Administrator] of the Federal Emergency Management Agency. In providing this advice the Director [Administrator] shall be governed by the principle that exceptions under this section shall be made only upon a clear showing that the payment of a greater differential than the procedures of this section generally prescribe is justified by consideration of national security. Sec Sec [Ex. Ord. No. 10582, set out above, superseded to the extent it is inconsistent with Ex. Ord. No. 14005, see section 14(b) of Ex. Ord. No. 14005, Jan. 25, 2021 section 8301 of this title [Ex. Ord. No. 10582, set out above, superseded to the extent that it is inconsistent with Ex. Ord. No. 13881, and section 2(a) and (c) of Ex. Ord. No. 10582 revoked upon issuance of final rule pursuant to section 2 of Ex. Ord. No. 13881, see section 3 of Ex. Ord. No. 13881, July 15, 2019 section 8301 of this title  8304. Waiver rescission (a)  Type of Agreement An agreement referred to in subsection (b) is a reciprocal defense procurement memorandum of understanding between the United States and a foreign country pursuant to which the Secretary of Defense has prospectively waived this chapter for certain products in that country. (b)  Determination by Secretary of Defense If the Secretary of Defense, after consultation with the United States Trade Representative, determines that a foreign country that is party to an agreement described in subsection (a) has violated the agreement by discriminating against certain types of products produced in the United States that are covered by the agreement, the Secretary of Defense shall rescind the Secretarys blanket waiver of this chapter with respect to those types of products produced in that country. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3833        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8304(a) 41:10b2(a)(2), (b). Pub. L. 103160, div. A, title VIII,  849(c) Nov. 30, 1993 107 Stat. 1725 8304(b) 41:10b2(a)(1). In subsection (a), the text of 41:10b2(b) is omitted as unnecessary. Statutory Notes and Related Subsidiaries Similar Provisions Provisions similar to those in this section and section 8305 of this title Pub. L. 117328, div. C, title VIII,  8032 Dec. 29, 2022 136 Stat. 4593 Pub. L. 117103, div. C, title VIII,  8033 Mar. 15, 2022 136 Stat. 182 Pub. L. 116260, div. C, title VIII,  8030 Dec. 27, 2020 134 Stat. 1310 Pub. L. 11693, div. A, title VIII,  8029 Dec. 20, 2019 133 Stat. 2342 Pub. L. 115245, div. A, title VIII,  8028 Sept. 28, 2018 132 Stat. 3006 Pub. L. 115141, div. C, title VIII,  8028 Mar. 23, 2018 132 Stat. 469 Pub. L. 11531, div. C, title VIII,  8029 May 5, 2017 131 Stat. 253 Pub. L. 114113, div. C, title VIII,  8028 Dec. 18, 2015 129 Stat. 2357 Pub. L. 113235, div. C, title VIII,  8028 Dec. 16, 2014 128 Stat. 2258 Pub. L. 11376, div. C, title VIII,  8027 Jan. 17, 2014 128 Stat. 110 Pub. L. 1136, div. C, title VIII,  8027 Mar. 26, 2013 127 Stat. 302 Pub. L. 11274, div. A, title VIII,  8027 Dec. 23, 2011 125 Stat. 811 Pub. L. 11210, div. A, title VIII,  8028 Apr. 15, 2011 125 Stat. 63 Pub. L. 111118, div. A, title VIII,  8030 Dec. 19, 2009 123 Stat. 3435 Pub. L. 110329, div. C, title VIII,  8030 Sept. 30, 2008 122 Stat. 3627 Pub. L. 110116, div. A, title VIII,  8029 Nov. 13, 2007 121 Stat. 1321 Pub. L. 109289, div. A, title VIII,  8027 Sept. 29, 2006 120 Stat. 1279 Pub. L. 109148, div. A, title VIII,  8030 Dec. 30, 2005 119 Stat. 2705 Pub. L. 108287, title VIII,  8032 Aug. 5, 2004 118 Stat. 977 Pub. L. 10887, title VIII,  8033 Sept. 30, 2003 117 Stat. 1079 Pub. L. 107248, title VIII,  8033 Oct. 23, 2002 116 Stat. 1544 Pub. L. 107117, div. A, title VIII,  8036 Jan. 10, 2002 115 Stat. 2255 Pub. L. 106259, title VIII,  8036 Aug. 9, 2000 114 Stat. 682 Pub. L. 10679, title VIII,  8038 Oct. 25, 1999 113 Stat. 1239 Pub. L. 105262, title VIII,  8038 Oct. 17, 1998 112 Stat. 2305 Pub. L. 10556, title VIII,  8040 Oct. 8, 1997 111 Stat. 1229 Pub. L. 104208, div. A, title I,  101(b) [title VIII,  8042] Sept. 30, 1996 110 Stat. 300971 Pub. L. 10461, title VIII,  8051 Dec. 1, 1995 109 Stat. 662 Pub. L. 103335, title VIII,  8058 Sept. 30, 1994 108 Stat. 2631 Pub. L. 103139, title VIII,  8069 Nov. 11, 1993 107 Stat. 1455 Pub. L. 102396, title IX,  9096 Oct. 6, 1992 106 Stat. 1924 Pub. L. 103355, title VII,  7206(b) Oct. 13, 1994 108 Stat. 3382 Pub. L. 102190, div. A, title VIII,  833 Dec. 5, 1991 105 Stat. 1447 Pub. L. 102172, title VIII,  8123 Nov. 26, 1991 105 Stat. 1205 Pub. L. 101189, div. A, title VIII,  823 Nov. 29, 1989 103 Stat. 1504  8305. Annual report Not later than 60 days after the end of each fiscal year, the Secretary of Defense shall submit to Congress a report on the amount of purchases by the Department of Defense from foreign entities in that fiscal year. The report shall separately indicate the dollar value of items for which this chapter was waived pursuant to (1) a reciprocal defense procurement memorandum of understanding described in section 8304(a) of this title (2) the Trade Agreements Act of 1979 ( 19 U.S.C. 2501 (3) an international agreement to which the United States is a party. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3833        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8305 41:10b3. Pub. L. 104201, div. A, title VIII,  827 Sept. 23, 1996 110 Stat. 2611 Pub. L. 10585, div. A, title VIII,  846 Nov. 18, 1997 111 Stat. 1845 Pub. L. 105261, div. A, title VIII,  812 Oct. 17, 1998 112 Stat. 2086 CHAPTER 85 COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED    Sec.  8501. Definitions.  8502. Committee for Purchase From People Who Are Blind or Severely Disabled.  8503. Duties and powers of the Committee.  8504. Procurement requirements for the Federal Government.  8505. Audit.  8506. Authorization of appropriations.  8501. Definitions In this chapter: (1)  Blind The term blind refers to an individual or class of individuals whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses or whose visual acuity, if better than 20/200, is accompanied by a limit to the field of vision in the better eye to such a degree that its widest diameter subtends an angle of no greater than 20 degrees. (2)  Committee The term Committee means the Committee for Purchase From People Who Are Blind or Severely Disabled established under section 8502 of this title (3)  Direct labor The term direct labor (A) includes all work required for preparation, processing, and packing of a product, or work directly relating to the performance of a service; but (B) does not include supervision, administration, inspection, or shipping. (4)  Entity of the federal government and federal government The terms entity of the Federal Government and Federal Government include an entity of the legislative or judicial branch, a military department or executive agency (as defined in sections 102 and 105 of title 5, respectively), the United States Postal Service, and a nonappropriated fund instrumentality under the jurisdiction of the Armed Forces. (5)  Other severely disabled The term other severely disabled means an individual or class of individuals under a physical or mental disability, other than blindness, which (according to criteria established by the Committee after consultation with appropriate entities of the Federal Government and taking into account the views of non-Federal Government entities representing the disabled) constitutes a substantial handicap to employment and is of a nature that prevents the individual from currently engaging in normal competitive employment. (6)  Qualified nonprofit agency for other severely disabled The term qualified nonprofit agency for other severely disabled means an agency (A) (i) organized under the laws of the United States or a State; (ii) operated in the interest of severely disabled individuals who are not blind; and (iii) of which no part of the net income of the agency inures to the benefit of a shareholder or other individual; (B) that complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and (C) that in the production of products and in the provision of services (whether or not the products or services are procured under this chapter) during the fiscal year employs blind or other severely disabled individuals for at least 75 percent of the hours of direct labor required for the production or provision of the products or services. (7)  Qualified nonprofit agency for the blind The term qualified nonprofit agency for the blind means an agency (A) (i) organized under the laws of the United States or a State; (ii) operated in the interest of blind individuals; and (iii) of which no part of the net income of the agency inures to the benefit of a shareholder or other individual; (B) that complies with any applicable occupational health and safety standard prescribed by the Secretary of Labor; and (C) that in the production of products and in the provision of services (whether or not the products or services are procured under this chapter) during the fiscal year employs blind individuals for at least 75 percent of the hours of direct labor required for the production or provision of the products or services. (8)  Severely disabled individual The term severely disabled individual means an individual or class of individuals under a physical or mental disability, other than blindness, which (according to criteria established by the Committee after consultation with appropriate entities of the Federal Government and taking into account the views of non-Federal Government entities representing the disabled) constitutes a substantial handicap to employment and is of a nature that prevents the individual from currently engaging in normal competitive employment. (9)  State The term State includes the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3833        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8501(1) 41:48b(1). June 25, 1938, ch. 697,  5 52 Stat. 1196 Pub. L. 9228,  1 June 23, 1971 85 Stat. 81 Pub. L. 93358,  1(3) July 25, 1974 88 Stat. 393 Pub. L. 94273,  3(22) Apr. 21, 1976 90 Stat. 377 8501(2) 41:46(a) (words in parentheses before par. (1)). June 25, 1938, ch. 697,  1(a) 52 Stat. 1196 Pub. L. 9228,  1 June 23, 1971 85 Stat. 77 8501(3) 41:48b(5). 8501(4) 41:48b(7). 8501(5) 41:48b(2). 8501(6) 41:48b(4). 8501(7) 41:48b(3). 8501(8) 41:48b(2). 8501(9) 41:48b(8). In this chapter, the word disabled is substituted for handicapped for consistency with the name of the Committee. The word product is substituted for commodity to reflect the current usage of the items produced in the Committees program. In this section, the text of 41:48b(6) is omitted as unnecessary. In paragraph (9), the words the Northern Mariana Islands are substituted for the Trust Territory of the Pacific Islands because the Trust Territory of the Pacific Islands terminated. See 48 U.S.C. note prec. 1681. However, section 502(a)(2) of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America ( 48 U.S.C. 1801 Statutory Notes and Related Subsidiaries Contracting With Employers of Persons With Disabilities Pub. L. 109364, div. A, title VIII,  856(a) Oct. 17, 2006 120 Stat. 2347  (a)  Inapplicability of Certain Laws. (1)  Inapplicability of the randolph-sheppard act to contracts and subcontracts for military dining facility support services covered by javits-wagner-oday act The Randolph-Sheppard Act ( 20 U.S.C. 107 Oct. 17, 2006 41 U.S.C. 47 41 U.S.C. 8503 (2)  Inapplicability of the javits-wagner-oday act to contracts for the operation of a military dining facility (A) The Javits-Wagner-ODay Act ([former] 41 U.S.C. 46 41 U.S.C. 8501 20 U.S.C. 107 (B) The Javits-Wagner-ODay Act [now 41 U.S.C. 8501 (3)  Repeal of superseded law  [Repealed section 853(a), (b) of Pub. L. 108375 118 Stat. 2021 (d)  Definitions In this section: (1) The term State licensing agency means any agency designated by the Secretary of Education under section 2(a)(5) of the Randolph-Sheppard Act ( 20 U.S.C. 107a(a)(5) (2) The term military dining facility means a facility owned, operated, leased, or wholly controlled by the Department of Defense and used to provide dining services to members of the Armed Forces, including a cafeteria, military mess hall, military troop dining facility, or any similar dining facility operated for the purpose of providing meals to members of the Armed Forces. Statement of Policy and Report Concerning the Operation and Management of Certain Military Facilities Regarding the Blind or Severely Disabled Pub. L. 109163, div. A, title VIII,  848(b) Jan. 6, 2006 119 Stat. 3395  (b)  Statement of Policy The Secretary of Defense, the Secretary of Education, and the Chairman of the Committee for Purchase From People Who Are Blind or Severely Disabled shall jointly issue a statement of policy related to the implementation of the Randolph-Sheppard Act ( 20 U.S.C. 107 41 U.S.C. 48 41 U.S.C. 8501 (c)  Report Not later than April 1, 2006  8502. Committee for Purchase From People Who Are Blind or Severely Disabled (a)  Establishment There is a Committee for Purchase From People Who Are Blind or Severely Disabled. (b)  Composition The Committee consists of 15 members appointed by the President as follows: (1) One officer or employee from each of the following, nominated by the head of the department or agency: (A) The Department of Agriculture. (B) The Department of Defense. (C) The Department of the Army. (D) The Department of the Navy. (E) The Department of the Air Force. (F) The Department of Education. (G) The Department of Commerce. (H) The Department of Veterans Affairs. (I) The Department of Justice. (J) The Department of Labor. (K) The General Services Administration. (2) One member from individuals who are not officers or employees of the Federal Government and who are conversant with the problems incident to the employment of the blind. (3) One member from individuals who are not officers or employees of the Federal Government and who are conversant with the problems incident to the employment of other severely disabled individuals. (4) One member from individuals who are not officers or employees of the Federal Government and who represent blind individuals employed in qualified nonprofit agencies for the blind. (5) One member from individuals who are not officers or employees of the Federal Government and who represent severely disabled individuals (other than blind individuals) employed in qualified nonprofit agencies for other severely disabled individuals. (c)  Terms of Office Members appointed under paragraph (2), (3), (4), or (5) of subsection (b) shall be appointed for terms of 5 years and may be reappointed if the member meets the qualifications prescribed by those paragraphs. (d)  Chairman The members of the Committee shall elect one of the members to be Chairman. (e)  Vacancy. (1)  Manner in which filled A vacancy in the membership of the Committee shall be filled in the manner in which the original appointment was made. (2)  Unfulfilled term A member appointed under paragraph (2), (3), (4), or (5) of subsection (b) to fill a vacancy occurring prior to the expiration of the term for which the predecessor was appointed shall be appointed only for the remainder of the term. The member may serve after the expiration of a term until a successor takes office. (f)  Pay and Travel Expenses. (1)  Amount to which members are entitled Except as provided in paragraph (2), members of the Committee are entitled to receive the daily equivalent of the maximum annual rate of basic pay payable for level IV of the Executive Schedule for each day (including travel-time) during which they perform services for the Committee. A member is entitled to travel expenses, including a per diem allowance instead of subsistence, as provided under section 5703 of title 5 (2)  Officers or employees of the federal government Members who are officers or employees of the Federal Government may not receive additional pay because of their service on the Committee. (g)  Staff. (1)  Appointment and compensation Subject to rules the Committee may adopt and to chapters 33 and 51 and subchapter III of chapter 53 of title 5, the Chairman may appoint and fix the pay of personnel the Committee determines are necessary to assist it in carrying out this chapter. (2)  Personnel from other entities On request of the Committee, the head of an entity of the Federal Government may detail, on a reimbursable basis, any personnel of the entity to the Committee to assist it in carrying out this chapter. (h)  Obtaining Official Information The Committee may secure directly from an entity of the Federal Government information necessary to enable it to carry out this chapter. On request of the Chairman, the head of the entity shall furnish the information to the Committee. (i)  Administrative Support Services The Administrator of General Services shall provide to the Committee, on a reimbursable basis, administrative support services the Committee requests. (j)  Annual Report Not later than December 31 of each year, the Committee shall transmit to the President a report that includes the names of the Committee members serving in the prior fiscal year, the dates of Committee meetings in that year, a description of the activities of the Committee under this chapter in that year, and any recommendations for changes in this chapter which the Committee determines are necessary. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3835        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8502(a), (b) 41:46(a) (less words in parentheses before par. (1)). June 25, 1938, ch. 697,  1 52 Stat. 1196 Pub. L. 9228,  1 June 23, 1971 85 Stat. 77 Pub. L. 93358,  1(1) July 25, 1974 88 Stat. 392 Pub. L. 94273,  8(2) Apr. 21, 1976 90 Stat. 378 Pub. L. 10254,  13(p) June 13, 1991 105 Stat. 278 Pub. L. 102569, title IX,  911(a) Oct. 29, 1992 106 Stat. 4486 Pub. L. 10373, title III,  301 Aug. 11, 1993 107 Stat. 736 8502(c) 41:46(d)(1), (2), (4). 8502(d) 41:46(c). 8502(e)(1) 41:46(b). 8502(e)(2) 41:46(d)(3). 8502(f) 41:46(e). 8502(g) 41:46(f). 8502(h) 41:46(g). 8502(i) 41:46(h). 8502(j) 41:46(i). In subsection (b)(1)(F), the words Department of Education are substituted for Department of Health and Human Services in 41:46(a)(1) to correct a mistake in the United States Code. In the amendment to the original provision by section 1 of Public Law 9228 85 Stat. 77 In subsection (c), the text of 41:46(d)(2) and (4) is omitted as obsolete. In subsection (f)(1), the reference to section 5376 of title 5 Public Law 101509 104 Stat. 1442 5 U.S.C. 5376 section 5703 of title 5 section 5703 of title 5 section 5703(b) of title 5 Public Law 9422 89 Stat. 85 In subsection (g), the words its duties and powers are omitted as surplus. In subsection (g)(1), the reference to chapter 33 of title 5 is substituted for the provisions of title 5 governing appointments in the competitive service for clarity and for consistency with other titles of the United States Code. The words relating to classification and General Schedule pay rates are omitted as unnecessary. In subsection (j), the words and to the Congress are omitted pursuant to section 3003 of the Federal Reports Elimination and Sunset Act of 1995 ( 31 U.S.C. 1113 Senate Revision Amendment In subsec. (f)(1), for level IV of the Executive Schedule substituted for under section 5376 of title 5  8503. Duties and powers of the Committee (a)  Procurement List. (1)  Maintenance of list The Committee shall maintain and publish in the Federal Register a procurement list. The list shall include the following products and services determined by the Committee to be suitable for the Federal Government to procure pursuant to this chapter: (A) Products produced by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely disabled. (B) The services those agencies provide. (2)  Changes to list The Committee may, by rule made in accordance with the requirements of section 553(b) to (e) of title 5, add to and remove from the procurement list products so produced and services so provided. (b)  Fair Market Price The Committee shall determine the fair market price of products and services contained on the procurement list that are offered for sale to the Federal Government by a qualified nonprofit agency for the blind or a qualified nonprofit agency for other severely disabled. The Committee from time to time shall revise its price determinations with respect to those products and services in accordance with changing market conditions. (c)  Central Nonprofit Agency or Agencies The Committee shall designate a central nonprofit agency or agencies to facilitate the distribution, by direct allocation, subcontract, or any other means, of orders of the Federal Government for products and services on the procurement list among qualified nonprofit agencies for the blind or qualified nonprofit agencies for other severely disabled. (d)  Regulations The Committee (1) may prescribe regulations regarding specifications for products and services on the procurement list, the time of their delivery, and other matters as necessary to carry out this chapter; and (2) shall prescribe regulations providing that when the Federal Government purchases products produced and offered for sale by qualified nonprofit agencies for the blind or qualified nonprofit agencies for other severely disabled, priority shall be given to products produced and offered for sale by qualified nonprofit agencies for the blind. (e)  Study and Evaluation of Activities The Committee shall make a continuing study and evaluation of its activities under this chapter to ensure effective and efficient administration of this chapter. The Committee on its own or in cooperation with other public or nonprofit private agencies may study (1) problems related to the employment of the blind and other severely disabled individuals; and (2) the development and adaptation of production methods that would enable a greater utilization of the blind and other severely disabled individuals. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3836        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8503(a) 41:47(a). June 25, 1938, ch. 697,  2 52 Stat. 1196 Pub. L. 9228,  1 June 23, 1971 85 Stat. 79 8503(b) 41:47(b). 8503(c) 41:47(c). 8503(d) 41:47(d). 8503(e) 41:47(e). In subsection (a), the text of 41:47(a)(1) (last sentence) is omitted as obsolete. The words procurement list are substituted for (hereafter in sections 46 to 48c of this title referred to as the procurement list) to eliminate unnecessary words. In subsection (d)(2), the text of 41:47(d)(2)(B) is omitted as obsolete.  8504. Procurement requirements for the Federal Government (a)  In General An entity of the Federal Government intending to procure a product or service on the procurement list referred to in section 8503 of this title (b)  Exception This section does not apply to the procurement of a product that is available from an industry established under chapter 307 of title 18 and that is required under section 4124 of title 18 ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3837        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8504 41:48. June 25, 1938, ch. 697,  3 52 Stat. 1196 Pub. L. 9228,  1 June 23, 1971 85 Stat. 80 In subsection (a), the words referred to in section 8503 of this title In subsection (b), the words for procurement are omitted as unnecessary.  8505. Audit For the purpose of audit and examination, the Comptroller General shall have access to the books, documents, papers, and other records of (1) the Committee and of each central nonprofit agency the Committee designates under section 8503(c) of this title (2) qualified nonprofit agencies for the blind and qualified nonprofit agencies for other severely disabled that have sold products or services under this chapter to the extent those books, documents, papers, and other records relate to the activities of the agency in a fiscal year in which a sale was made under this chapter. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3838        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8505 41:48a. June 25, 1938, ch. 697,  4 52 Stat. 1196 Pub. L. 9228,  1 June 23, 1971 85 Stat. 81 In this section, before paragraph (1), the words or any of his duly authorized representatives are omitted because of 31:711(2). In paragraph (1), the words central nonprofit are added for clarity.  8506. Authorization of appropriations  Necessary amounts may be appropriated to the Committee to carry out this chapter. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3838        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8506 41:48c. June 25, 1938, ch. 697,  6 52 Stat. 1196 Pub. L. 9228,  1 June 23, 1971 85 Stat. 82 Pub. L. 9376 July 30, 1973 87 Stat. 176 Pub. L. 93358,  1(4) July 25, 1974 88 Stat. 393 The reference to the fiscal year ending June 30, 1974 CHAPTER 87 KICKBACKS    Sec.  8701. Definitions.  8702. Prohibited conduct.  8703. Contractor responsibilities.  8704. Inspection authority.  8705. Administrative offsets.  8706. Civil actions.  8707. Criminal penalties.  8701. Definitions In this chapter: (1)  Contracting agency The term contracting agency, when used with respect to a prime contractor, means a department, agency, or establishment of the Federal Government that enters into a prime contract with a prime contractor. (2)  Kickback The term kickback means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind that is provided to a prime contractor, prime contractor employee, subcontractor, or subcontractor employee to improperly obtain or reward favorable treatment in connection with a prime contract or a subcontract relating to a prime contract. (3)  Person The term person means a corporation, partnership, business association of any kind, trust, joint-stock company, or individual. (4)  Prime contract The term prime contract means a contract or contractual action entered into by the Federal Government to obtain supplies, materials, equipment, or services of any kind. (5)  Prime contractor The term prime contractor means a person that has entered into a prime contract with the Federal Government. (6)  Prime contractor employee The term prime contractor employee means an officer, partner, employee, or agent of a prime contractor. (7)  Subcontract The term subcontract means a contract or contractual action entered into by a prime contractor or subcontractor to obtain supplies, materials, equipment, or services of any kind under a prime contract. (8)  Subcontractor The term subcontractor (A) means a person, other than the prime contractor, that offers to furnish or furnishes supplies, materials, equipment, or services of any kind under a prime contract or a subcontract entered into in connection with the prime contract; and (B) includes a person that offers to furnish or furnishes general supplies to the prime contractor or a higher tier subcontractor. (9)  Subcontractor employee The term subcontractor employee means an officer, partner, employee, or agent of a subcontractor. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3838        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8701 41:52. Mar. 8, 1946, ch. 80,  2 60 Stat. 37 Pub. L. 86695 Sept. 2, 1960 74 Stat. 740 Pub. L. 99634,  2(a) Nov. 7, 1986 100 Stat. 3523 In this section, the text of 41:52(3) is omitted because of the definition of person in 1:1. In paragraph (2), the words directly or indirectly are omitted as unnecessary. Senate Revision Amendment Senate amendment 4726 (111th Cong.) added par. (3) and redesignated former pars. (3) to (8) as (4) to (9), respectively. See 156 Cong. Rec. 18683 (2010).  8702. Prohibited conduct A person may not (1) provide, attempt to provide, or offer to provide a kickback; (2) solicit, accept, or attempt to accept a kickback; or (3) include the amount of a kickback prohibited by paragraph (1) or (2) in the contract price (A) a subcontractor charges a prime contractor or a higher tier subcontractor; or (B) a prime contractor charges the Federal Government. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3839        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8702 41:53. Mar. 8, 1946, ch. 80,  3 60 Stat. 37 Pub. L. 86695 Sept. 2, 1960 74 Stat. 740 Pub. L. 99634,  2(a) Nov. 7, 1986 100 Stat. 3524 In paragraph (3), before subparagraph (A), the words directly or indirectly are omitted as unnecessary.  8703. Contractor responsibilities (a)  Requirements Included in Contracts Each contracting agency shall include in each prime contract awarded by the agency a requirement that the prime contractor shall (1) have in place and follow reasonable procedures designed to prevent and detect violations of section 8702 of this title (2) cooperate fully with a Federal Government agency investigating a violation of section 8702 of this title (b)  Full Cooperation Required Notwithstanding subsection (d), a prime contractor shall cooperate fully with a Federal Government agency investigating a violation of section 8702 of this title (c)  Reporting Requirement. (1)  In general A prime contractor or subcontractor that has reasonable grounds to believe that a violation of section 8702 of this title (2)  Supplying information as favorable evidence In an administrative or contractual action to suspend or debar a person who is eligible to enter into contracts with the Federal Government, evidence that the person has supplied information to the Federal Government pursuant to paragraph (1) is favorable evidence of the persons responsibility for the purposes of Federal procurement laws and regulations. (d)  Inapplicability to Certain Prime Contracts Subsection (a) does not apply to a prime contract (1) that is not greater than $100,000; or (2) for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title). ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3839 Pub. L. 115232, div. A, title VIII,  836(b)(20) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8703(a) 41:57(a), (b). Mar. 8, 1946, ch. 80,  7 60 Stat. 37 Pub. L. 86695 Sept. 2, 1960 74 Stat. 740 Pub. L. 99634,  2(a) Nov. 7, 1986 100 Stat. 3525 Pub. L. 103355, title IV,  4104(a) Oct. 13, 1994 108 Stat. 3341 Pub. L. 104106, div. D, title XLIII,  4321(g) Feb. 10, 1996 110 Stat. 675 8703(b) 41:57(e). 8703(c) 41:57(c). 8703(d) 41:57(d). In subsection (c)(1), the words Attorney General are substituted for Department of Justice because of 28:503. Editorial Notes Amendments 2018Subsec. (d)(2). Pub. L. 115232 section 103 of this title Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  8704. Inspection authority (a)  In General To ascertain whether there has been a violation of section 8702 of this title (b)  Exception This section does not apply to a prime contract for the acquisition of commercial products or commercial services (as defined in sections 103 and 103a, respectively, of this title). ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3839 Pub. L. 115232, div. A, title VIII,  836(b)(20) Aug. 13, 2018 132 Stat. 1864        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8704 41:58. Mar. 8, 1946, ch. 80,  8 60 Stat. 37 Pub. L. 86695 Sept. 2, 1960 74 Stat. 740 Pub. L. 99634,  2(a) Nov. 7, 1986 100 Stat. 3525 Pub. L. 103355, title VIII,  8301(c)(2) Oct. 13, 1994 108 Stat. 3397 In subsection (a), the words Comptroller General are substituted for General Accounting Office because of 31:702. Editorial Notes Amendments 2018Subsec. (b). Pub. L. 115232 section 103 of this title Statutory Notes and Related Subsidiaries Effective Date of 2018 Amendment Amendment by Pub. L. 115232 Jan. 1, 2020 section 836(h) of Pub. L. 115232 section 453b of Title 6  8705. Administrative offsets (a)  Definition In this section, the term contracting officer has the meaning given that term in chapter 71 of this title. (b)  Offset Authority A contracting officer of a contracting agency may offset the amount of a kickback provided, accepted, or charged in violation of section 8702 of this title (c)  Duties of Prime Contractor. (1)  Withholding and paying over or retaining amounts On direction of a contracting officer of a contracting agency with respect to a prime contract, the prime contractor shall withhold from amounts owed to a subcontractor under a subcontract of the prime contract the amount of a kickback which was or may be offset against the prime contractor under subsection (b). The contracting officer may order that amounts withheld (A) be paid over to the contracting agency; or (B) be retained by the prime contractor if the Federal Government has already offset the amount against the prime contractor. (2)  Notice The prime contractor shall notify the contracting officer when an amount is withheld and retained under paragraph (1)(B). (d)  Offset, Direction, or Order is Claim of Federal Government An offset under subsection (b) or a direction or order of a contracting officer under subsection (c) is a claim by the Federal Government for the purposes of chapter 71 of this title. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3840        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8705(a) 41:56(d). Mar. 8, 1946, ch. 80,  6 60 Stat. 37 Pub. L. 86695 Sept. 2, 1960 74 Stat. 740 Pub. L. 99634,  2(a) Nov. 7, 1986 100 Stat. 3524 8705(b) 41:56(a). 8705(c) 41:56(b). 8705(d) 41:56(c).  8706. Civil actions (a)  Amount The Federal Government in a civil action may recover from a person (1) that knowingly engages in conduct prohibited by section 8702 of this title (A) twice the amount of each kickback involved in the violation; and (B) not more than $10,000 for each occurrence of prohibited conduct; and (2) whose employee, subcontractor, or subcontractor employee violates section 8702 of this title (b)  Statute of Limitations A civil action under this section must be brought within 6 years after the later of the date on which (1) the prohibited conduct establishing the cause of action occurred; or (2) the Federal Government first knew or should reasonably have known that the prohibited conduct had occurred. ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3840        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8706 41:55. Mar. 8, 1946, ch. 80,  5 60 Stat. 37 Pub. L. 86695 Sept. 2, 1960 74 Stat. 740 Pub. L. 99634,  2(a) Nov. 7, 1986 100 Stat. 3524  8707. Criminal penalties  A person that knowingly and willfully engages in conduct prohibited by section 8702 of this title ( Pub. L. 111350,  3 Jan. 4, 2011 124 Stat. 3841        Historical and Revision Notes  Revised Section Source (U.S. Code) Source (Statutes at Large)  8707 41:54. Mar. 8, 1946, ch. 80,  4 60 Stat. 37 Pub. L. 86695 Sept. 2, 1960 74 Stat. 740 Pub. L. 99634,  2(a) Nov. 7, 1986 100 Stat. 3524