### §205l. Implementation in acquisition of construction services and materials for Federal facilities

#### (a) In general

Construction services and materials for Federal facilities shall be procured in accordance with the policies and procedures set forth in the provisions of title 10, referred to in section 3016 of such title as "chapter 137 legacy provisions", section 3453 of such title, division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41, and section 205b(2) of this title. Determination of a design method shall be based upon preliminary market research as required under section 3453(c) of title 10 and section 3307(d) of title 41. If the requirements of this subchapter conflict with the provisions of section 3453 of title 10 or section 3307(b) to (d) of title 41, then the provisions of such sections 1 3453 or 3307(b) to (d) shall take precedence.

#### (b) Concrete masonry units

In carrying out the policy set forth in section 205b of this title (with particular emphasis on the policy set forth in paragraph (2) of that section) a Federal agency may require that specifications for the acquisition of structures or systems of concrete masonry be expressed under the metric system of measurement, but may not incorporate specifications, that can only be satisfied by hard-metric versions of concrete masonry units, in a solicitation for design or construction of a Federal facility within the United States or its territories, or a portion of said Federal facility, unless the head of the agency determines in writing that—

(1) hard-metric specifications are necessary in a contract for the repair or replacement of parts of Federal facilities in existence or under construction upon the effective date of the Savings in Construction Act of 1996; or

(2) the following 2 criteria are met:

(A) the application requires hard-metric concrete masonry units to coordinate dimensionally into 100 millimeter building modules; and

(B) the total installed price of hard-metric concrete masonry units is estimated to be equal to or less than the total installed price of using non-hard-metric concrete masonry units. Total installed price estimates shall be based, to the extent available, on cost or pricing data or price analysis, using actual hard-metric and non-hard-metric offers received for comparable existing projects. The head of the agency shall include in the writing required in this subsection an explanation of the factors used to develop the price estimates.

#### (c) Recessed lighting fixtures

In carrying out the policy set forth in section 205b of this title (with particular emphasis on the policy set forth in paragraph (2) of that section) a Federal agency may require that specifications for the acquisition of structures or systems of recessed lighting fixtures be expressed under the metric system of measurement, but may not incorporate specifications, that can only be satisfied by hard-metric versions of recessed lighting fixtures, in a solicitation for design or construction of a Federal facility within the United States or its territories unless the head of the agency determines in writing that—

(1) the predominant voluntary industry consensus standards include the use of hard-metric for the items specified; or

(2) hard-metric specifications are necessary in a contract for the repair or replacement of parts of Federal facilities in existence or under construction upon the effective date of the Savings in Construction Act of 1996; or

(3) the following 2 criteria are met:

(A) the application requires hard-metric recessed lighting fixtures to coordinate dimensionally into 100 millimeter building modules; and

(B) the total installed price of hard-metric recessed lighting fixtures is estimated to be equal to or less than the total installed price of using non-hard-metric recessed lighting fixtures. Total installed price estimates shall be based, to the extent available, on cost or pricing data or price analysis, using actual hard-metric and non-hard-metric offers received for comparable existing projects. The head of the agency shall include in the writing required in this subsection an explanation of the factors used to develop the price estimates.

#### (d) Limitation

The provisions of subsections (b) and (c) of this section shall not apply to Federal contracts to acquire construction products for the construction of facilities outside of the United States and its territories.

#### (e) Repealed. Pub. L. 108–423, §6, Nov. 30, 2004, 118 Stat. 2402

#### (f) Agency ombudsman

(1) The head of each executive agency that awards construction contracts within the United States and its territories shall designate a senior agency official to serve as a construction metrication ombudsman who shall be responsible for reviewing and responding to complaints from prospective bidders, subcontractors, suppliers, or their designated representatives related to—

(A) guidance or regulations issued by the agency on the use of the metric system of measurement in contracts for the construction of Federal buildings; and

(B) the use of the metric system of measurement for services and materials required for incorporation in individual projects to construct Federal buildings.

The construction metrication ombudsman shall be independent of the contracting officer for construction contracts.

(2) The ombudsman shall be responsible for ensuring that the agency is not implementing the metric system of measurement in a manner that is impractical or is likely to cause significant inefficiencies or loss of markets to United States firms in violation of the policy stated in section 205b(2) of this title, or is otherwise inconsistent with guidance issued by the Secretary of Commerce in consultation with the Interagency Council on Metric Policy while ensuring that the goals of this subchapter are observed.

(3) The ombudsman shall respond to each complaint in writing within 60 days and make a recommendation to the head of the executive agency for an appropriate resolution thereto. In such a recommendation, the ombudsman shall consider—

(A) whether the agency is adequately applying the policies and procedures in this section;

(B) whether the availability of hard-metric products and services from United States firms is sufficient to ensure full and open competition; and

(C) the total installed price to the Federal Government.

(4) After the head of the agency has rendered a decision regarding a recommendation of the ombudsman, the ombudsman shall be responsible for communicating the decision to all appropriate policy, design, planning, procurement, and notifying personnel in the agency. The ombudsman shall conduct appropriate monitoring as required to ensure the decision is implemented, and may submit further recommendations, as needed. The head of the agency's decision on the ombudsman's recommendations, and any supporting documentation, shall be provided to affected parties and made available to the public in a timely manner.

(5) Nothing in this section shall be construed to supersede the bid protest process established under subchapter V of chapter 35 of title 31.

(Pub. L. 94–168, §14, as added and amended Pub. L. 104–289, §§4(a), 5, Oct. 11, 1996, 110 Stat. 3412, 3414; Pub. L. 108–423, §6, Nov. 30, 2004, 118 Stat. 2402; Pub. L. 117–81, div. A, title XVII, §1702(e)(1), Dec. 27, 2021, 135 Stat. 2156.)

#### **Editorial Notes**

#### References in Text

The effective date of the Savings in Construction Act of 1996, referred to in subsecs. (b)(1) and (c)(2), is 90 days after Oct. 11, 1996. See Effective Date of 1996 Amendment; Savings Provision note set out under section 205c of this title.

#### Amendments

2021—Subsec. (a). Pub. L. 117–81 substituted "set forth in the provisions of title 10, referred to in section 3016 of such title as 'chapter 137 legacy provisions', section 3453 of such title, division C (except sections 3302, 3307(e), 3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41," for "set forth in chapter 137 of title 10, section 2377 of title 10, title III of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 251 et seq.),"; "under section 3453(c) of title 10 and section 3307(d) of title 41." for "under section 2377(c) of title 10 and section 314B(c) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 264b(c))."; and "section 3453 of title 10 or section 3307(b) to (d) of title 41, then the provisions of such sections 3453 or 3307(b) to (d) shall take" for "section 2377 of title 10 or section 314B of the Federal Property and Administrative Services Act of 1949, then the provisions of 2377 or 314B shall take".

2004—Subsec. (e). Pub. L. 108–423 struck out heading and text of subsec. (e). Text read as follows: "The provisions contained in subsections (b) and (c) of this section shall expire 10 years from the effective date of the Savings in Construction Act of 1996."

1996—Pub. L. 104–289, §5, added subsec. (f).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date; Savings Provision

Section effective 90 days after Oct. 11, 1996, and inapplicable to contracts awarded and solicitations issued on or before that date, unless head of Federal agency makes written determination that it would be in public interest to apply one or more provisions of Pub. L. 104–289 to these existing contracts or solicitations, see section 6(b) of Pub. L. 104–289, set out as an Effective Date of 1996 Amendment; Savings Provision note under section 205c of this title.

1 So in original. Probably should be "section".